Sean Stuart McAndrew v Southern Cross Protection Pty Ltd - [2024] FWC 1137

[2024] FWC 1137

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.365—General protections

Sean Stuart McAndrew
v

Southern Cross Protection Pty Ltd

(C2023/5971)

COMMISSIONER HUNT

BRISBANE, 2 MAY 2024

Application to deal with contraventions involving dismissal – jurisdictional objection – whether the employee was dismissed at the employer’s initiative – jurisdictional objection upheld – application dismissed.

On 26 September 2023, Mr Sean Stuart McAndrew made an application to the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute involving dismissal. Mr McAndrew stated that he had been dismissed from his employment with Southern Cross Protection Pty Ltd (the Respondent) on 6 September 2023.

The Respondent raised a jurisdictional objection to the application on the ground that Mr McAndrew had resigned from his employment and was not terminated on the employer’s initiative pursuant to s.386(1) of the Act.

Following the Full Court of the Federal Court decision of Coles Supply Chain Pty Ltd v Milford,[1] the Commission must determine whether Mr McAndrew was dismissed before it can exercise powers under s.368 of the Act to deal with a dispute about whether Mr McAndrew was dismissed in contravention of the general protections provision.

Legislative provisions

Section 365 of the Act provides as follows:

“365 Application for the FWC to deal with a dismissal dispute

If:
(a)a person has been dismissed; and

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”

The meaning of “dismissed” is provided at s.386 of the Act:

“386 Meaning of dismissed

(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

This decision deals only with the jurisdictional objection to be determined, that is, was Mr McAndrew dismissed from his employment?

Hearing

The matter was listed for hearing by video using Microsoft Teams on 21 December 2023. Mr McAndrew represented himself. Mr Andrew Vlachos of Stimulus Legal & Consulting Pty Ltd was granted leave to represent the Respondent.

The following people gave evidence and were cross-examined:

· Mr McAndrew;
· Mr Oliver Vrtkovski, Human Resources Manager (not required for cross-examination);
· Mr Dennis Limbert, Senior Patrol Officer;
· Mr Shane Lynis, Queensland Patrols Service Delivery Manager; and
· Mr James Thomson, Branch Manager of Cooper Plains & Ipswich.

Evidence of Mr McAndrew

Mr McAndrew commenced working with the Respondent as a Mobile Patrol Security Officer in 2022. He met with Mr Ken Connew, Branch Manager, who, according to Mr McAndrew said that he had the job before he walked through the door. He commenced the job and commenced working almost immediately.

His role was to drive a company vehicle between various suburbs north of Brisbane. He used a company phone to access the company work portals, to check in and out of the clients’ site, as well as scanning location tags to demonstrate he was at the location. His responsibility included:

· hitting strict nightly driving KPIs;

· vehicle maintenance;

· washing the vehicle three days a week;

· responding to alarms immediately in his area or surrounding areas where required; and

· completing site patrols at various locations throughout the night, including retail business, car yards, bus depots, race tracks, water plants for SEQ, unit complexes and apartments, hotels, hospitals, rehabilitation centres, university grounds, cemeteries, public parks including toilet lock up, libraries, laboratories and private residences.

He typically worked from 6:00pm to 5:30am, which later moved to a 6:00am end time. Mr McAndrew would often be in approximately 15 minutes early to conduct his pre-shift duties, such as vehicle checks, paperwork, read pre-shift notes, and log in to all his work devices and platform. At 6:00pm, he was rushed to be on the road straight into heavy peak hour traffic as he would already be behind schedule. His break time was reduced from 60 minutes to 30 minutes to accommodate more patrols being added to the run. He noted that other guards received a 60-minute break for several months.

Mr McAndrew had anywhere from 65 to 80 site patrols per night, with some sites requiring two to four patrols. Some patrols are scheduled to take up to 20 minutes each.

Mr McAndrew’s training was with Mr Limbert, followed by a two-night training with another guard who sat in the passenger seat, and in Mr McAndrew’s view, did not provide him any training. Mr Connew apologised to Mr McAndrew in advance and after the training in respect of the second guard not training him. Soon after completing his training, Mr McAndrew was informed that he would be training a new guard, which he found concerning.

When Mr Limbert trained Mr McAndrew on the first shift, he intentionally ignored site briefs and did the bare minimum to prove they had completed a patrol. This was to save ‘valuable time’ which is a major factor in this position trying to get all jobs complete in the timeframe that was not achievable. The only way this was possible was to intentionally deviate from client site brief instructions. He said the night started off well but quickly changed after finishing lock up at specific council parks and toilets.

In his evidence, Mr McAndrew detailed various sites where he says he was instructed or encouraged to deviate from client instructions to provide a rushed review of security, or even to falsify reports. I have chosen not to name those specific sites as I am of the view there could be some reputational damage to those clients and to the Respondent, and to some degree, the application may have been brought in attempt to embarrass the Respondent. I also wish to ensure that security patrol routes are not published.

Site A

Mr McAndrew was with Mr Limbert on patrol, and they went to the front door where one of the two tags were located and scanned it. The patrol brief required the main entry door to be locked, to physically check all accessible windows and doors, and spotlight the carpark. Mr Limbert showed Mr McAndrew how to get to the loading dock by walking through the building, straight through the back door where the second tag was located and scanned it. They then walked from the loading dock through the underground car park and back to their car, where the job was announced as completed on the work platform. This is to demonstrate the check-in and check-out times, and times the tags were scanned.

On their second visit later that night, they scanned the tag at the front door and then drove to the back to scan the tag again at the second scanner before leaving. They did not check any doors or windows.

Mr McAndrew said he discovered that they should be going upstairs and checking the second level, as he found a second entry point on the front balcony which had stairs for retail shops with free public access from the car park. Mr Limbert did not train Mr McAndrew in respect of this, and on future patrols, he discovered this door was constantly left unlocked and tenancy doors open on Level 2. By not doing this, Mr McAndrew attributed Mr Limbert’s failure to properly train him as saving valuable time on the patrol.

Site B

The site brief for Site B required three patrols per night to conduct a full perimeter patrol, checking all accessible doors and windows to ensure everything is secure and correct. In training, Mr McAndrew and Mr Limbert arrived on site and parked near the front door. Mr Limbert showed him the tag location at the main entrance and they scanned the tag. They checked the electric sliding doors, and checked whether there were any homeless people sleeping in the corner next to the doors. They went back to the car and drove to the loading dock to scan the second location tag. The patrol then ceased, without the full perimeter check, as required, or checking the doors on the other side of the building. Mr McAndrew later discovered an issue with these doors after completing the full perimeter checks and submitted an incident report about the damage.

Site C

The site brief for Site C required three patrols per night, including exiting the vehicle, physically confirming all accessible roller doors, doors and windows were secure. Checks were required on signs of forced entry, vandalism or graffiti.

When Mr McAndrew and Mr Limbert arrived at the site, they found the first tag location on the corner of the building next door. Mr McAndrew was instructed to stay in the car as they can hit two tags from inside to save time. Mr Limbert drove across to the underground car park and scanned the second tag on the wall without leaving his car.

Mr Limbert then drove back to the front entrance and scanned the third tag on the wall. They did not physically check any doors or roller doors of the property and finished the job.

Site D

The site brief for Site D required two patrols per night. Mr McAndrew noted that Mr Limbert didn’t show him the rear of the building to check any signs of forced entry or check on doors.

Site E

The site brief for Site E required four patrols per night. Mr McAndrew noted that Mr Limbert didn’t drive underground to show him the back doors.

Site F

The site brief for Site F required patrols to be done after 11:00pm on Thursday, Friday and Saturday. Mr McAndrew considers Mr Limbert showed him a shortcut which reduced the patrol by 18 minutes. Mr Limbert said to him, “Ken Conney said he doesn’t care about the patrol as long as we hit our tag”.

Site G

The site brief for Site G required four patrols per night. The first patrol is after 9:00pm, requiring the toilets locked and ensuring shops are closed. On the second and third visits, the complex is spotlighted and check that remaining shops are closed since the last patrol. The last patrol of the night requires a walk-through and to physically check all doors.

All four patrols are to include the loading dock as vagrants are often camping on site.

Mr McAndrew advised they arrived on site and checked in early as they had a strict 9:00pm deadline elsewhere. Mr Limbert showed him where the only tag location was at the middle of the car park and scanned it. Mr McAndrew noted they did not lock any toilets, nor was he shown how to lock the toilets.

Mr McAndrew and Mr Limbert then drove slowly to make a lap of the carpark prior to exiting, when Mr Limbert advised, “Don’t close the job yet so it looks [like] we actually did something”. Mr McAndrew said that by not checking any doors or loading docks, they saved approximately 10 to 15 minutes, as a lot of walking then stop and driving between all the rear door was involved at this large complex. They did almost the same during their second and third patrol, except during the third patrol, Mr Limbert stated, “I should at least show you around the back”. He then proceeded to drive halfway down the back of the rear carpark before they left, taking only a few minutes to save time.

On the fourth patrol, they again just hit their tag and did a slow lap driving, intentionally ignoring the site brief.

In following months when Mr McAndrew was placed under performance management, Mr McAndrew stated that he would perform Site G as per the site brief, and not how Mr Limbert had trained him. With Mr Limbert’s short-cutting, the patrol took only five minutes. Performing it correctly took 17 minutes.

Mr Thomson went to Site G and did a walk through, trying to problem solve, and confirmed to Mr McAndrew that it should take about 17 minutes. He noted, however, that the client isn’t being charged for a patrol officer to be there for that long. Mr McAndrew considered the matter was unresolved, and he considered that the Respondent was systematically not completing site briefs in order to reduce costs and maximise profits.

Site H

The site brief for Site H required four patrols per night, including checking windows and accessible doors. Mr Limbert showed him the tag location which was then scanned and front door checked. The back door was never checked on any of the four patrols.

Site I

The site brief for Site I required two patrols per night, requiring the patrol officer to check all doors and windows for graffiti and scratches to shop fronts and rear doors in the carpark. They arrived for the first call, checked the doors and windows, but did not check the rear of the building. On the second patrol, Mr Limbert stopped at a pedestrian crossing, held up traffic and instructed Mr McAndrew to get out of the car and hit the tag. No doors were checked.

Instructions to file a false incident

Mr McAndrew’s evidence is that in early 2023, Mr Connew pulled him aside, nominated a client and said that complaints had been made about the lack of incident reports they had been receiving. There had been numerous break-ins at this site. Mr Limbert heard the conversation and instructed Mr McAndrew to fabricate reports by saying, “That’s easy, all you need to do is go around, open some doors, take pictures and send the incident report.” This instruction shocked Mr McAndrew and waited for Mr Connew to step in and say something to Mr Limbert. This did not occur. Mr McAndrew continued to prepare his pre-shift tasks and started his shift as normal.

Performance and Management

Mr McAndrew noted he received constant praise by Mr Thomson, in person and by email whenever he received positive feedback from clients.

In early 2023, Mr McAndrew was facing a predicament with his rental housing, and it appeared he would need to relocate to Sydney. He inquired of Mr Thomson if he could obtain a transfer to NSW, to which Mr Thomson said he was a good guard and he’d be happy to assist. Mr Thomson offered Mr McAndrew a future position if he was to return to Brisbane someday in the future. The relocation did not eventuate.

Mr McAndrew said the positive comments in respect of his performance ceased when he started doing his patrols correctly, taking an extra one or two minutes at some sites, but at others, 10–18 minutes longer, based on what the site briefs instructed and what he considered clients would be charged ‘in his eyes’. By fulfilling the site brief, it resulted in him missing many sites each night. He was questioned as to why he was not completing all his jobs.

Mr McAndrew said he was now struggling with the stress of everything, including his performance being reviewed by Mr Thomson. He was not scanning all tags at some sites because he was focused on doing the patrol correctly and not so concerned about the location tags.

In the many toolbox meetings held by Mr Thomson, Mr McAndrew noticed there were a lot of the same issues raised from client’s complaints regarding guards not doing the patrols correctly and missing serious incidents, like breaking and entering.

An employee survey was undertaken, with the results demonstrating Mr McAndrew’s branch had bad morale. Employees, however, would not speak up at toolbox meetings, leaving Mr Thomson perplexed. Another survey was undertaken.

Mr McAndrew submitted his survey, raising concerns about workloads being too high. He never heard the results of this survey, or saw any action taken moving forward. Another survey would later be sent out, which Mr McAndrew chose not to participate in as they were optional, and he felt his concerns were still being ignored from the last survey.

Mr Thomson continued to inform employees at toolbox meetings that guards were missing incidents and not doing patrols correctly.

Mr McAndrew was asked by Mr Thomson to start learning other runs so he could progress his knowledge of client sites/other runs to help with staff shortages. Mr McAndrew informed Mr Thomson that he was not happy working with the Respondent, and he didn’t want to waste the Respondent’s time and money training him as he was applying for other employment opportunities already. Mr Thomson responded that he didn’t want to lose Mr McAndrew as he was a good guard.

Mr McAndrew was then offered a full-time position, stepping up from his part-time role. He rejected the offer. He was eventually trained on the new runs which he undertook, but failed to complete all sites. The guard on this run gave him the same training as Mr Limbert did, intentionally ignoring site briefs to save valuable time.

Eventually, the burnout, high stress levels and declining mental health he was experiencing forced him to miss many shifts. Mr McAndrew requested a meeting with Mr Vrtkovski, however Mr Vrtkovski failed to attend the scheduled meeting and did not respond until days later. He went on leave and made a workers’ compensation claim. At the time of the hearing the claim had been declined.

Events culminating in a resignation of employment

In early August 2023, Mr McAndrew and Mr Thomson sent numerous email messages to each other; Mr McAndrew asserting that the patrols needed to be done a certain way, and Mr Thomson saying that the client hadn’t paid for that long a patrol and they were being reviewed. He was assured that at one site he could view the locked doors from the vehicle instead of having to check each handle.

On 9 August 2023, Mr McAndrew responded:

“My stress and anxiety levels are extremely high at the moment with all of these issues going on and I’m barely sleeping unable to stop stressing about work issues.
I’m sorry but I’m not going to be in tonight or tomorrow for mental health reasons / to see a gp for more help.”

On 22 August 2023, the following text messages were exchanged:

Mr Thomson: Hi Sean, just tried to call you to see how your are and how you are feeling about work. Need to plan a training shift so we can solve the run issues. So we need know when you may be back and what you want to do about work or other options is night patrol no longer what you want. Please call me Jamie

Mr McAndrew: Hi Jamie I’m honestly not doing great or ready to come back but don’t have much choice – what are the stress leave option in place as I need more time – it’s been 13 days without response to my emails about some of the issues happening has anything been resolved?

Mr Thomson: Hi Sean tried to call you to discuss. I have been waiting for you to return to work to discuss the issues you are having on the run and ways to do it more efficient.

As far as time off how long do you need? We don’t want you back if you are not ready and just adding more stress. You have no personal leave left but can take leave without pay until ready to return, please supply a med cert for this.
We need to be able to plan for your absence as can’t keep covering rosters last minute. Please advise when you think a suitable return to work will be or a time to come in and discuss with myself and the HR team

On 23 August 2023, Mr McAndrew sought confirmation from Mr Thomson if two particular sites required physical checks, and requested not to have any retraining with Mr Limbert, as he considered he had been incorrectly trained by him on his first shift. On 25 August 2023, Mr Thomson gave instructions as to how the two sites could be patrolled and confirmed Mr Limbert would not be retraining Mr McAndrew. On 25 August 2023, Mr McAndrew responded that it would take an additional 30 minutes to properly patrol those two sites.

It appears that Mr McAndrew visited his GP on 23 August 2023. The Respondent produced a medical certificate that had been issued to Mr McAndrew stating that he had a medical condition and would be unfit for work between 23 and 24 August 2023. A later medical certificate was produced, dated 21 November 2023, demonstrating that he visited his GP on 23 August 2023 citing work stress. Following the hearing of this matter, Mr McAndrew provided a list of dates he had been examined by a medical practitioner. During his period of employment he was seen on 15 and 18 April 2023, and not again until 23 August 2023. He then next visited his practitioner on 17 October 2023.

Mr McAndrew remained absent from work. On 31 August 2023 at approximately 12:30pm, Mr Lynis called him to inquire about his return to work. Mr McAndrew states that he felt pressured to resign, despite having met Mr Lynis only twice during his employment. He noted he had no interactions with him regarding work matters previously.

Mr McAndrew informed Mr Lynis that none of the issues with his runs had been addressed properly or fixed, and therefore he was unable to return to work. Mr Lynis responded that Mr Thomson had tried to call Mr McAndrew to try and work through these issues, but Mr McAndrew had missed the call.

Mr McAndrew however noted that he and Mr Thomson were in constant contact via email. Further, at this time, Mr Thomson had sent Mr McAndrew a text message that day which Mr McAndrew responded to.

Mr McAndrew’s evidence is that Mr Lynis asked him if he was going to hand in his resignation now, to which Mr McAndrew said, “no”. Mr McAndrew’s evidence is that he lost control of his mental and physical emotions, with Mr Lynis trying to force his resignation, and responded, “I will be coming back to work and follow all the dodgy and potential illegal instructions I was trained”. Mr Lynis did not respond. Mr McAndrew then terminated the call as he was having an anxiety attack.

Mr McAndrew said he spent the next few days spiralling out of control, mentally, as he now had two managers; one asking how he was doing and telling him to stay on stress leave until he is ready to return to work – the other harassing him and trying to have him resign. Mr McAndrew explained he felt helpless as he considered that his security licence and driver’s licence were at risk because he was expected to ‘break the law’ for the Respondent’s financial gains.

Mr McAndrew noted that he had stated that he would return to work on 6 September 2023 for the night shift. He woke up feeling helpless about everything that had happened to him and could not see how he could return to work and it be a safe and fair work environment. At 11:28am he sent the following email to Mr Connew:

“Resignation
Hi Ken
I’m handing in my resignation to you as of right now.”

The following text exchange then occurred with Mr Thomson:

Mr McAndrew: I won’t be making my shifts next 2 night – email has been sent to Ken

Mr Thomson: Hi Sean Ken has forwarded ema to me and I have replied to you. Please return all uniforms as soon as possible

The email sent by Mr Thomson to Mr McAndrew is as follows:

“Hi Sean
Thanks for your email.
Your resignation has been accepted and I will process the paperwork now.
Please return all of your uniforms as soon as possible.”

Mr McAndrew considered that when requested for his uniforms as soon as possible, it meant that he wouldn’t be able to work out his one week notice period. This is despite him having declared the resignation of his employment ‘as of right now’.

Mr McAndrew’s Reply Statement

Reply to Mr Lynis’ statement

In reply to Mr Lynis’ witness statement, Mr McAndrew asserted that when Mr Lynis called him, the tone of the phone call was very serious. Mr Lynis never asked him how he was going in terms of his stress and mental health.

Mr McAndrew agreed that the following conversation occurred:

Mr Lynis:Hi Sean, it’s Shane Lynis here, I was asked by Jamie to give you a call to see if you’re coming back to work this weekend.

Mr McAndrew: No, I’m not coming back until all my issues are fixed.

He asserts that Mr Lynis then asked, “Are you handing in your resignation now then?”

Mr Lynis further informed Mr McAndrew that he made arrangements to be at work for his return as Mr McAndrew wouldn’t talk to either Mr Thomson or Mr Vrtkovski. Mr McAndrew said this is correct, and he did not want to speak with anyone over the phone.

Reply to Mr Thomson’s Statement

Mr McAndrew refuted Mr Thomson’s statement that he has never received complaints about Mr Limbert not training patrol officers correctly from any patrol officer or management. Mr McAndrew noted that he himself had made several complaints about Mr Limbert during his employment.

Mr McAndrew confirmed he declined the request to come in on his night shift to train a new guard for fear of burnout. The Respondent, at the time, was constantly sending out company notices about taking care of themselves and not burning out as that just creates more problems. Mr Thomson informed Mr McAndrew he wanted to have him trained on a completely new run to advance his knowledge of sites. Mr McAndrew responded by email and in-person saying he was unhappy working there and he was looking for other employment opportunities.

Mr McAndrew stated that whilst he earnestly complained about Mr Limbert’s training of him from 3 August 2023, he had earlier raised it with Mr Thomson.

Mr McAndrew considers that during August 2023, Mr Thomson was dismissive of his concerns as to how Mr Limbert had failed to train him, which Mr McAndrew described as serious misconduct. He considers that Mr Thomson dismissed his complaints knowing he was already experiencing mental health issues.

Mr McAndrew denied he ever told Mr Thomson that he didn’t want to talk to him.

Reply to Mr Limbert’s Statement

Mr McAndrew asserted that Mr Limbert was untruthful in his witness statement and had not made any attempt to respond to any serious allegations made by Mr McAndrew.

Mr McAndrew agreed with Mr Limbert that he had complained to Mr Thomson about Mr Limbert, however never directly to Mr Limbert. Mr McAndrew, however, made many complaints to Mr Limbert about constant issues going on with his run and his response was, “Jamie doesn’t care”.

Mr McAndrew rejected Mr Limbert’s assertion that they did not have much to do with each other while at work. He stated that Mr Limbert was his senior and they communicated with each other at the start of each shift on approximately 95% of occasions. He noted that they would often wash their cars together.

Mr McAndrew stated that Mr Limbert would tell him of the ‘dodgy’ things other guards would do and how he would log them off their work devices so he could check up on people and report back to Mr Thomson as to what guards were doing. Mr McAndrew would call Mr Limbert all the time during shift, asking questions and complaining about other guards rejecting alarms from NOC and get them sent to Mr McAndrew. This happened several times.

Mr McAndrew noted that Mr Thomson would dock his pay if he came back to the depot too early, and he did not think that occurred to other guards.

Evidence given during the hearing

Mr McAndrew stated that Mr Lynis was trying to force him back to work, and if he hadn’t resigned, he assumes he would have stayed on stress leave and worked with Mr Thomson.

In cross-examination, Mr McAndrew agreed that Mr Lynis offered to have Mr Thomson sit with him on his return, and Mr McAndrew said that he didn’t want to talk to Mr Thomson. He said that he would come back and do the ‘dodgy’ things the Respondent wanted him to do.

He considered that he was being forced to come back to work and it was causing him anxiety. He agreed that the Respondent and Mr Thomson wanted him to come back to work.

He conceded that he didn’t tell Mr Lynis that he was stressed. He agreed that he was being performance managed for not hitting tags while on patrol. He was happy with doing the patrols as per the site briefs. He took comfort in that, despite it taking too long according to the Respondent. He considered that he was taking as long as what the client was being charged for.

Mr McAndrew conceded that in communicating with Mr Vrtkovski, he was rude, and accepts that Mr Vrtkovski would have wanted him to return to work.

Finally, Mr McAndrew asserted that if he had returned to work, he would have put at risk his security license and livelihood.

Respondent’s submissions

The Respondent submitted that McAndrew resigned from his employment and was not terminated on the employer’s initiative.

Mr McAndrew’s emailed resignation at 11:28am on 6 September 2023 was, in the Respondent’s view, a voluntary resignation, and there was no action taken by the Respondent that intended to bring the employment to an end or left Mr McAndrew with no real choice but to resign. The Respondent also contended that Mr McAndrew’s resignation was not tendered in the heat of the moment.

The Respondent noted that it was undertaking a performance management process with Mr McAndrew, and contended that he was not happy about this. This was offered as a plausible reason as to why Mr McAndrew resigned. The Respondent also suggested that Mr McAndrew may not have wanted to continue performing the duties of a patrol officer for the Respondent and that he had previously advised that he intended to leave his employment.

Consequently, the Respondent submitted that there was no termination at the employer’s initiative, and the Commission therefore does not have jurisdiction to deal with Mr McAndrew’s application.

Evidence of Dennis Limbert

Mr Limbert stated that as a senior patrol officer he was responsible for the supervision and welfare of patrol officers. He occasionally trained new patrol officers and was responsible for the training of Mr McAndrew.

Mr McAndrew’s allegations that he had not been trained properly were denied by Mr Limbert. After they have completed training, it is the responsibility of patrol officers to familiarise themselves with a brief for a particular site.

He also denied that he said that Mr McAndrew should fabricate and submit false incident reports. Mr Limbert recalled a conversation with Mr Connew and Mr McAndrew during which he told Mr McAndrew that he will occasionally find doors open at the site they were discussing, and that he should hold the door open and take photos to complete a report.

Mr Limbert stated that he had never received a complaint from Mr McAndrew in relation to his training, or any allegation that Mr McAndrew made in his statement. Following the first night of training, Mr Limbert said that he had limited contact with Mr McAndrew, and that they only briefly encountered each other occasionally at the beginning of shifts.

While he is not employed to train patrol officers, Mr Limbert said that he will do so when requested by management. Despite this, he stated that he had never been advised of any complaints made against him in relation to his training practices.

Mr Limbert stated that while unlocking a premises at Hamilton at 4:50am on 20 June 2023, he saw Mr McAndrew’s patrol car parked at a 7/11 store. According to Mr Limbert, Mr McAndrew should have been in the Bowen Hills area at this time, as his shift was not due to be completed until 6:00am. Mr Limbert formed the view that Mr McAndrew had finished his shift early, which he reported to Mr Thomson.

Mr Limbert gave evidence that on or around 15 August 2023, he had the following conversation with Mr McAndrew before the start of a shift:

Mr Limbert: Hi Sean, how’s it going?

Mr McAndrew: I’m not real happy. I’ve put feelers out. As soon as I find something else, I’m out of here.

Mr Limbert did not reply to Mr McAndrew after this exchange.

Evidence given during the hearing

In evidence-in-chief, Mr Limbert stated that Mr McAndrew did not complain to him about his patrol duties. He agreed that they washed cars together but said that they didn’t talk a great deal.

In cross-examination, Mr Limbert denied instructing Mr McAndrew to make a false report.

Mr Limbert stated that he had been a guard for 24 years.

Evidence of Oliver Vrtkovski

Mr Vrtkovski stated that he was made aware of an issue involving Mr McAndrew by Mr Thomson. On 23 August 2023, Mr Thomson sent the following email to Mr Vrtkovski, informing him that Mr McAndrew wanted to contact the Respondent’s human resources team:

“Hi Oli,
Sean has just sent be an email below,
Are you happy for me to give him your email and phone number?

His claims are lies stating that Ken and I have told him or others not to check doors and submit false reports. Happy to fight this if my name is going to be slandered and will call on many other patrol officers as witness.

Hi Jamie

How do I contact HR I will need to speak with them this week on my own after seeking legal advice.”

Mr Vrtkovski arranged a meeting with Mr McAndrew via Microsoft Teams on 25 August 2023. The meeting was postponed by Mr Vrtkovski due to pressing issues. The following text messages were exchanged:

28 August 2023 at 12:17pm
Mr Vrtkovski: Hi Sean
My sincere apologies for Friday – I was distracted by some changes in Head Office. Can we connect today?
Regards
Oliver.

31 August 2023 at 12:37pm
Mr Vrtkovski: Hi Sean,
Following on from my message on Monday, can you please let me know if we can connect today or tomorrow?
Regards, Oliver

Mr McAndrew: Don’t even bother you obviously can’t do your job Oliver!

Don’t contact me again!

On 31 August 2023, Mr Thomson sent the following to Mr Vrtkovski, Mr Lynis and Jesse Nash:

“Hi Oli
Any update with Sean?
Jesse do you have a plan in place to cover him not being here all weekend, I notice the shifts you did have covered are now blank?”

Mr Vrtkovski replied:

“Hi all,
After trying Sean on Monday and messaging, I followed up again today, no answer, but he has just responded to my follow-up text by stating:
“Don’t even bother you obviously can’t do your job Oliver! Don’t contact me again!”
Can I suggest someone else try and make contact with Sean?
P: [REDACTED]
Sean’s message is highly inappropriate despite my best efforts to contact him. We will need to address this behaviour with him along with the performance matters.
Whomever is contacting Sean, the key is to try and get him back to work so that we can discuss his concerns, however we need to commence the performance management process immediately thereafter.
Regards, Oli
P: [REDACTED]”

Mr Thomson replied, addressing Mr Lynis:

“Shane can you try as he has not answered any of my attempts to call him and only does texts or emails.
Doesn’t sound as if he’s interested in coming back”.

Later the same day, Mr Lynis sent the following email:

“Hi All
I spoke to Sean on the phone, and he stated the following:
1.   He’s not coming in to work this weekend.
2.   He will be back at work on Wednesday 06/09.
3.   He’s not interested in talking to either Jamie or Oli.
4.   He’s not interested in coming in for a meeting to discuss the issues further.

I asked if he was planning on leaving and he stated he wasn’t.
Kind Regards”.

Mr Vrtkovski stated that he wanted Mr McAndrew to return to work to address his performance issues, and there was no intention to force him to resign. Instead, Mr Vrtkovski stated that there had been a shortage of patrol officers in the security industry, meaning the Respondent wanted to retain as many as possible in an attempt to reduce overtime costs.

Evidence of Shane Lynis

Mr Lynis stated that as the Respondent’s Service Delivery Manager, he is responsible for managing the performance of the security patrols branches in Queensland to ensure they efficiently deliver patrol services and alarm responses to customers. These services are provided based on the needs of the individual customer. One customer may require a door or window checked 2-3 times per night, while another customer may require a full walk around of their building 2-3 times per night. These tasks are carried out by patrol officers, and clients’ instructions are logged into an electronic software system called Infield, accessed by patrol officers on their company phones.

When a patrol officer visits a site, they must scan near field communication (NFC) tags located at the site using Infield. Customers are then provided a proof of service report, which lists the NFC tags that were scanned by patrol officers, and the times at which they were scanned. When conducting patrols, patrol officers are required to drive a company vehicle, which is tracked by the Respondent. Mr Lynis stated that the data provided by the NFC tags and vehicle tracking makes it easy for the Respondent to determine whether a patrol officer is carrying out their duties to an appropriate standard.

It is Mr Lynis’s understanding that the Respondent has not been investigated by any regulatory authority in relation to its services, nor has it been convicted of any offence arising out of any non-delivery of services since he commenced with the Respondent.

Mr Lynis noted that he had very little interaction with Mr McAndrew, which extended only to saying “hello” on two or three occasions. Mr Lynis denied the allegation that he pressured Mr McAndrew to resign during a phone call on 31 August 2023.

After receiving the email from Mr Thomson on 31 August 2023 at [100], asking him to call Mr McAndrew, Mr Lynis had a phone conversation with Mr McAndrew which lasted for 5 minutes and 5 seconds. Mr Lynis stated that, to the best of his recollection, Mr McAndrew had told him, “I’m not coming back until all my issues are fixed.”

Mr Lynis said that Mr McAndrew alleged the Respondent was corrupt, that Mr Connew had told him to submit illegal documents, that a particular site was not being serviced properly, and that Mr Thomson and other patrol officers were not doing their jobs properly. Mr Lynis then sought to discover when Mr McAndrew might be returning to work:

Mr Lynis:Jamie has tried calling you to arrange a meeting, so we can discuss these concerns. When do you think you’ll be back at work?

Mr McAndrew:          I’ll be back on Wednesday.
Mr Lynis:                   This coming Wednesday?
Mr McAndrew:          Yes.
Mr Lynis:Are you willing to sit down and have a meeting with Jamie to discuss your concerns?

Mr McAndrew:          No, I’m not interested in talking with Jamie.
Mr Lynis:                   Do you want to speak with Oli?
Mr McAndrew:          No. If he can’t be bothered to turn up to a meeting.
Mr Lynis:                   So are you resigning?
Mr McAndrew:          No. I’m not going to resign.
Mr Lynis:                   OK then I’ll let Jamie know. See you on Wednesday. Thank you.

Mr Lynis stated that he was relieved when Mr McAndrew stated that he was not resigning because of the labour shortage in the security industry. Mr Lynis said that it was in the Respondent’s interests to facilitate Mr McAndrew’s return to work so that staff shortages, increased labour costs from additional overtime, and the recruitment and training of a new security officer were all avoided.

Following the call with Mr McAndrew, Mr Lynis made an appointment on his diary to attend the Respondent’s Eagle Farm branch on 6 September 2023, so that he could speak with Mr McAndrew upon his return to work given that he had indicated he would not be willing to speak with Mr Thomson or Mr Vrtkovski.

Mr Lynis worked from the Eagle Farm branch as planned on 6 September 2023, but Mr McAndrew did not attend on that day. He was notified by Mr Thomson at 11:38am on that day that Mr McAndrew had resigned. Mr Lynis has had no further contact with Mr McAndrew since their phone call on 31 August 2023.

Evidence given during the hearing

In evidence-in-chief, Mr Lynis stated that he didn’t raise any performance issues with Mr McAndrew on the telephone during their call, nor did he discuss retraining. Mr McAndrew did not inform Mr Lynis that he was having a medical episode. He does not recall Mr McAndrew saying that he would return to work to do the ‘dodgy’ things the Respondent wanted him to do.

In cross-examination, Mr Lynis confirmed that he knew that Mr McAndrew was on stress leave and was calling to see if he was coming back to work. He called him because Mr Thomson had asked him to.

Evidence of James Thomson

Mr Thomson stated that, as the Respondent’s branch manager for Eagle Farm and Redlands until October 2023, Mr McAndrew reported to him. He was responsible for ensuring the efficient delivery of patrols in the branch area, which included management of the branch area’s employees and financial responsibility for the branch.

Mr Limbert was a senior patrol officer who reported to him while Mr McAndrew was employed. The only occasion where Mr Limbert worked with Mr McAndrew was on the first night of Mr McAndrew's employment, when Mr Limbert trained Mr McAndrew on customer site requirements.

On 20 June 2023, Mr Limbert informed him that Mr McAndrew had finished his shift approximately one hour early. The following emails were exchanged between Mr Thomson and Mr McAndrew:

Mr Thomson: Hi Sean,

A few questions about last night’s run.
You have put on the PO1 that no meal break taken but the car was back at the depot before 5am and parked up in garage engine off at 0507.
You also have booked yourself on site at [site] for a casual patrol at 0437 and [site] at 0503 which GPS does not show you at those locations.
The missed tag report is much improved thank you.
1.Please advise why you were back at depot so early?
2.If break was taken, then you would not of been back to depot until after 0530.
3.Why did you make the casual call as con site when you ere not there. When you realised you missed this one at 0437 you had time to drive to the park and do the call and then finish on time
4.Tag at card read B1 at [site] did you try and scan it as it was working all weekend with John. Need to know if it needs replaced again.

Going forward
You are not to press arrive at any site you are not at. This can lead to ACC regarding as falsifying records and fraud for services charged that have not been completed.
Please ensure breaks taken at appropriate times.
Return to depot is not to be before 0545, all alarms are to be accepted up to 0545, if you finish late you will be paid for it.
I have ended your shift at 0515 and put it down as no break. I am not paying for being at the depot from 5am.
Please continue to work on missed tags great improvement so far.

Mr McAndrew: No break taken is pretty normal for me if you check all my run sheets as if I stop driving fatigue takes over – had a brand new trainee using the phone last night so bound to be mistakes that last night – wasn’t advised [site] tag had been replaced as it hasn’t been working for a long time for me so I reported that issues.

Mr Thomson stated that he had been consistently reminding patrol officers at meetings to take regular breaks whilst on shift. He further stated that he had never received any complaints from patrol officers or management that Mr Limbert was not training patrol officers correctly.

On 22 February 2023, Mr Thomson sent an email to Mr McAndrew and Mr Limbert, asking them to train a new patrol officer. Mr McAndrew replied, saying that he could not provide training at the requested time, and explained that he had started applying for other positions, so did not want to waste the Respondent’s time. Mr Thomson responded that he considered Mr McAndrew to be a valued team member and offered him full-time work. Mr Thomson replied, “Thanks for the offer Jamie but that won’t help the problem sorry.”

Mr Thomson said that the first time Mr McAndrew had complained about Mr Limbert’s training was at 7:20pm on 4 August 2023 via email, in response to an email sent by Mr Thomson noting that 63 NFC tags had been missed during Mr McAndrew’s shift on 14 June 2023. Mr McAndrew’s email stated as follows:

“Hi Jamie
I was spoken to by Dennis at start of shift about [site] and told we’ve never physically checked doors at this site as we can just look at them to see if they are locked and Jamie’s knows this – also he said it should only take 10-20 min to patrol this site but he trained me to hit the tag do a slow lap of car park driving so it looks like we did something and go taking about 3 min?”

On 16 June 2023, Mr Limbert sent an email to Mr McAndrew, noting that he had missed 24 NFC tags which, while an improvement, required further improvement.

On 2 August 2023, Mr Thomson emailed Mr McAndrew expressing his concerns that he was still missing calls despite the patrol run being shortened. There were a number of email communications that took place between himself and Mr McAndrew between 2 August and 25 August 2023. The emails were attached to Mr Thomson’s evidence, which I have regard to.

Mr McAndrew’s last day of work was 6 August 2023. Since commencement, Mr McAndrew had taken 57.75 hours of personal leave; 115.5 hours of annual leave; and 50.25 hours of leave without pay. He asked if he could use the majority of his annual leave hours for personal leave as he had exhausted this entitlement.

Between 14 August and 18 August 2023, the following summarised email exchange occurred between Mr Thomson and Mr McAndrew:

Mr McAndrew:Hi Jamie

I’m still not ready to return to work just yet – I’ll be off tonight and tomorrow again – sorry for any inconvenience caused

Mr Thomson: Hi Sean,

Hope your back soon.
Do you have medical certificates for last week and these two nights?

Mr McAndrew: Hi Jamie

Not last week but here’s the previous 2 days

Mr McAndrew: Hi Jamie

I now it’s late notice sorry – I’m just up for work and I don’t have the capacity to work still my head is all over the shop – I’ll be off all weekend I’m sorry

On 22 August 2023, there were a number of text messages exchanged between himself and Mr McAndrew about him not attending work.

On 28 August 2023, Mr McAndrew emailed Mr Thomson to advise that he was not coming back to work his rostered shift. Mr Thomson tried to call him on his mobile phone several times to find out when he would return to work, but Mr McAndrew did not answer his calls. Mr Thomson formed the impression that Mr McAndrew was not interested in coming back to work, and Mr Thomson was frustrated by not being able to talk to Mr McAndrew directly. Therefore, he asked his manager, Mr Lynis, to talk to him to find out if he was returning to work. He also asked Mr Vrtkovski to call him.

Mr Thomson had no other communication with Mr McAndrew until 6 September 2023, when Mr McAndrew resigned his employment to Mr Connew. Mr Thomson explained he was not surprised to have received Mr McAndrew's resignation given that he:

· had not presented to work since 6 August 2023;

· was being performance managed about his failure to complete patrols as required;

· had previously indicated to Mr Thomson that he wanted to leave employment;

· did not want to talk to Mr Thomson; and

· made his resignation effective immediately.

On the same day at 11.45am, Mr McAndrew texted Mr Thomson to say that he wouldn’t be coming to work his shifts for that week. Mr Thomson was confused by this text as he considered Mr McAndrew had resigned. As he had already emailed Mr McAndrew of his acceptance of the resignation before he read Mr McAndrew’s text, Mr Thomson replied that Mr Connew had forwarded the email to him, and he had replied. Mr McAndrew was asked to return all uniforms as soon as possible.

Evidence given during the hearing

Mr Thomson said that an email sent by him to Mr Lynis and Mr Vrtkovski on 6 September 2023 which states, “Hi all Problem solved Sean has resigned to Ken” was in reference to the rosters which could now be filled.

In answering questions from me, Mr Thomson did not consider there was any need to call Mr McAndrew because he had informed Mr Lynis on 31 August 2023 that he would be returning to work on 6 September 2023.

Consideration

Section 386 of the Act provides that a person has been dismissed in several circumstances, including when their “employment” has been “terminated on the employer’s initiative”. Such a situation refers to a termination that is brought about by an employer and which is not agreed to by the employee.[2]

When analysing whether there has been a “termination at the initiative of the employer” for the purpose of s.386(1)(a) of the Act, it is necessary for the analysis to be conducted by reference to termination of the employment relationship. It is not conducted by reference to the termination of the contract of employment in operation immediately before the cessation of the employment.[3]

A “termination at the initiative of the employer” is when two criteria are satisfied:

· the employer’s action “directly and consequentially” results in the termination of employment; and

· had the employer not taken this action, the employee would have remained employed.[4]

Although applied under the previous Act,[5] the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd[6] in my view remains generally apposite to the consideration of s.386(1) of the Act:

“[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)

A more recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[7] in the following terms:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)

Accordingly, the general principles to be applied in this case are well settled. Stated succinctly, they include:

•  the question as to whether the resignation was forced within the meaning of the Act is a jurisdictional fact that must be established by the applicant;
•  a termination at the initiative of the employer involves the conduct (or course of conduct) engaged in by the employer as the principal constituting factor leading to the termination. There must be a sufficient causal connection between the conduct and the resignation such that it “forced” the resignation;
•  the employer must have engaged in some conduct that intended to bring the employment relationship to an end or had that probable result;
•  conduct includes an omission;
•  considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign; and
•  in determining the question of whether the termination was at the initiative of the employer, an objective analysis of the employer’s conduct is required.

Was Mr McAndrew forced to resign?

In light of the terms of the Act and the authorities, it is necessary to consider whether Mr McAndrew was forced to resign. In making that assessment, it is appropriate to make an objective analysis of the Respondent’s conduct to determine whether it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. The line distinguishing conduct that leaves an employee no real choice but to resign from an employee resigning at their own initiative is a narrow one. The line, however, must be “closely drawn and rigorously observed”.

The onus is on Mr McAndrew to establish that he did not resign voluntarily, proving that the Respondent forced his resignation.[8] I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Mr McAndrew and the Respondent to an end.[9]

On the evidence before me, it appears that Mr McAndrew was dissatisfied with how he had been trained by Limbert, his senior, but had not made his concerns known to the Respondent until August 2023. By this point in time, Mr McAndrew was on leave from work due to what he describes as workplace stress.

It is evident that Mr McAndrew was being performance managed by Mr Thomson for failing to hit the patrol tags, as required by the site briefs. Mr McAndrew had determined in his mind that he knew what was required for each site, based on the site briefs, and how much the client was being charged for the services performed by the Respondent.

Mr McAndrew considered that the Respondent was engaging in corrupt practices by patrol guards taking short-cuts, not checking that doors were locked, not undertaking perimeter checks, and stalling leaving particular sites so that it appeared that the patrol took longer than it truly did.

The Respondent employs approximately 900 employees, as stated in its Form F8A response to the application. It is a large organisation. Mr McAndrew had wanted to expose the Respondent for what he considered to be corrupt and fraudulent practices, and was given the opportunity to speak with Mr Vrtkovski, on 31 August 2023; instead he rejected Mr Vrtkovski’s request to meet for a rescheduled meeting. He sent an emotional response to Mr Vrtkovski’s apology for the meeting being rescheduled by stating he never wanted to be contacted again by him.

On the same day, Mr Lynis contacted him to enquire when he would be back at work. It was Mr McAndrew who volunteered that he would return to work on 6 September 2023. Mr Lynis’ evidence is that Mr McAndrew spoke about the Respondent’s alleged corrupt practices, but Mr Lynis was keen to discover when Mr McAndrew would be returning to work. I consider it would have been appropriate for Mr Lynis to say to Mr McAndrew that his assertions were very serious allegations, and if he wished to back them up, he ought to put them in writing to senior management for an investigation to occur. Mr Lynis did not do this, which is somewhat of an omission, with his focus on extracting from Mr McAndrew a return-to-work date.

I do not consider that Mr Lynis’ call to Mr McAndrew on 31 August 2023 was to exert some pressure on Mr McAndrew to resign. The Respondent was keen for him to return, as it had been experiencing roster issues and staff shortages, in part due to Mr McAndrew’s incapacity. Mr Lynis was requested by Mr Thomson to contact Mr McAndrew, which he did.

Whilst Mr McAndrew was on leave when the call was made to him, he could have advised that he was not well enough and would correspond with the Respondent when he was well enough. He did not do so. Upon learning that Mr McAndrew was to return on 6 September 2023, Mr Lynis appropriately inquired if he was willing to speak with Mr Thomson or Mr Vrtkovski. When informed that Mr McAndrew did not wish to speak with either of them, he inquired if he was resigning his employment. I do not consider that was an inappropriate question, nor one to invite a resignation from Mr McAndrew. Mr McAndrew spoke his truth, said he wasn’t resigning, and Mr Lynis said that he would see him on 6 September 2023. I accept Mr Lynis’ evidence that he was relieved to hear of his return to work.

Knowing that Mr McAndrew did not wish to speak with Mr Thomson or Mr Vrtkovski, it was appropriate that he meet with him on his expected return-to-work date, given Mr Lynis’ seniority within the Respondent. I am satisfied that he scheduled to be at the same workplace as Mr McAndrew and could meet with him to discuss Mr McAndrew’s ongoing concerns, including his allegations of corruption. Any omission in dealing with Mr McAndrew’s concerns in the call of 31 August 2023 would have been mitigated by the meeting on 6 September 2023. At [64], Mr McAndrew confirms he understood that he would meet with Mr Lynis on 6 September 2023.

On the day he was due to return to work, Mr McAndrew unexpectedly resigned his employment.

The Respondent could not have anticipated that this would occur. Mr McAndrew had committed to returning to work that day; he was expected. Mr Lynis had planned to meet with him.

I am of the view that Mr Thomson was appropriately performance managing Mr McAndrew in respect of his performance while on patrol, noting that he had missed a significant number of tags on 14 and 16 June 2023 while on patrol. Mr Thomson was keen to have Mr McAndrew return and they could sort out the issues, including Mr McAndrew’s concerns as to what he understood to be an appropriate amount of time for each patrol. Mr Thomson described this to Mr McAndrew as meeting to ‘solve the run issues’. I am satisfied that Mr Thomson was not engaging in lip service; he was keen to address Mr McAndrew’s concerns when they met.

Where Mr McAndrew held concerns at [50] as to how long two patrols might take, and noting this conversation was in late August 2023, an in-person meeting with Mr Thomson would have gone a long way to resolve any differences between Mr McAndrew and the Respondent’s requirements. By late August 2023, Mr McAndrew had resolved not to meet with Mr Thomson.

While there had been a performance decline from around June 2023, Mr McAndrew had repeatedly been informed, prior to June 2023, that he was a valued employee. He was offered full-time employment after informing the Respondent that he was looking to depart the organisation. He declined the offer. He was assured that if he needed to relocate interstate, he could return to a role if he returned to Brisbane.

The Respondent was willing and able to work with Mr McAndrew to improve what it considered to be performance issues. Mr McAndrew had, it seems, convinced himself that the Respondent’s patrol schedule he was required to perform was unable to be properly performed without short-cuts and in his mind, with the client being overcharged or false reports required.

Without being willing to sit down with management and properly articulate his serious allegations, his mental health deteriorated significantly in August 2023. The Respondent was somewhat aware of this issue given he was unable to attend work and had produced medical certificates and cited workplace stress in his emails to Mr Thomson.

I do not, however, expect the Respondent to have made any further inquiries than it did to determine Mr McAndrew’s capacity to return to work. I consider it was satisfactorily making inquiries of its employee who had been off work for around three weeks.

On Mr McAndrew’s evidence, between 31 August 2023 and 6 September 2023, he mentally spiralled out of control. He considered that he might be putting his security and driver’s licence at risk if he returned to work. The Respondent was not privy to this, and it had a reasonable belief that he would be returning to work on 6 September 2023.

There was a number of options available to Mr McAndrew instead of resigning his position on 6 September 2023. He could have purposefully requested a meeting with Mr Lynis if he did not wish to speak with Mr Thomson or Mr Vrtkovski. He could have remained on leave while he escalated his allegations of corruption and fraud. He could have made a workers’ compensation claim while his employment was on foot.

As highlighted in ABB Engineering, a consideration of the employer’s conduct is necessary to determine if it was the principal contributing factor in the resultant termination. In this matter, the Respondent was making suitable enquiries of an absent employee, was keen to have him return, was prepared to discuss with him his concerns, and had obtained a return-to-work date from the employee. These are all reasonable actions.

Conversely, it was the conduct, perceptions and subjective response of Mr McAndrew to determine that he had to resign on 6 September 2023, when he had many options available to him, other than to resign his employment. Accordingly, his resignation was voluntary, and not due to conduct or a course of conduct engaged in by the Respondent. I am satisfied that Mr McAndrew did have other reasonable options available to him other than to resign his employment.

Heat of the moment resignation

It is an established principle, that an employer is generally able to treat a clear and unambiguous resignation as a resignation.[10]

However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation.[11] Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.[12]

Mr McAndrew has not suggested that his resignation was made in the heat of the moment. In the circumstances, I find that Mr McAndrew’s resignation by email was an unambiguous resignation from his employment with the Respondent and was not a resignation given in the heat of the moment such that the Respondent would have a duty of confirming Mr McAndrew’s intention to resign before accepting the resignation.

Conclusion

For the reasons set out above I have determined that the resignation of Mr McAndrew was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that Mr McAndrew was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.

I must dismiss the application for lack of jurisdiction. An Order [PR774408] will be issued together with this decision.

COMMISSIONER

Appearances:

S McAndrew appeared for himself.
A Vlachos of Stimulus Legal & Consulting Pty Ltd, with permission, with O Vrtkovski for the Respondent.

Hearing details:

2023.
Brisbane.
Video by Microsoft Teams.
21 December.

[1] [2020] FCAFC 152.

[2] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75]; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

[3] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 at [75].

[4] Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.

[5] Workplace Relations Act 1996 (Cth).

[6] [2006] AIRC 496 (PR973462).

[7] [2017] FWCFB 3491.

[8] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,

[(2009) 185 IR 359].

[9] O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at

para. 23, [(2006) 58 AILR 100].

[10] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

[11] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12],; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.

[12] Ibid.

Printed by authority of the Commonwealth Government Printer

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Sean Stuart McAndrew v Southern Cross Protection Pty Ltd [2024] FWC 1137

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