Simon Tickner v Credit Connect Pty Ltd
[2024] FWC 2735
•14 NOVEMBER 2024
| [2024] FWC 2735 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Simon Tickner
v
Credit Connect Pty Ltd
(U2024/5036)
| DEPUTY PRESIDENT LAKE | BRISBANE, 14 NOVEMBER 2024 |
Application for an unfair dismissal – jurisdictional objection – resignation – jurisdictional objection upheld – matter dismissed.
Mr Simon Tickner (the Applicant) made an application to the Fair Work Commission (the Commission) seeking a remedy pursuant to s.394 of the Fair Work 2009 (the Act) stating that he was unfairly dismissed from his employment with Credit Connect Pty Ltd on or around 1 May 2024 (the Respondent).
A conciliation was held on 5 June 2024 and the matter was not resolved. The matter was listed for a hearing on 16 August 2024 and a second day of hearing on 5 September 2024. The Applicant appeared self-represented, and the Respondent was represented by Ms Mariam Noorzai of Employsure Law. I granted permission for the Respondent to be represented under s.596 of the Act on the basis that there is a complex factual matrix.
Section 396 of the Act requires satisfaction of four matters before considering the merits. I am satisfied that the Applicant made his application within the 21-day period required by s.394(2) of the Act and earned less than the high-income threshold. The Respondent raised a jurisdictional objection that the Applicant had resigned and was not dismissed. The jurisdictional objection will be considered before determining the merits of the matter.
Background
The Applicant commenced employment with the Respondent in June 2016.[1] The Respondent is a financial services company providing low doc loans.
The Applicant claims that he has been subjected to bullying by the CEO of the Respondent, Mr Peter Benson.[2]
The Applicant initially commenced work for the Respondent as a contractor, as he was involved in litigation at the time which he said may have affect his decision regarding long term employment.[3]
The Applicant’s litigation settled in September 2016 and in May 2017, the Applicant asked Mr Benson to review his employment.[4]
The Applicant submits that a new employment contract was drafted in June 2017 but the Applicant did not sign this contract as he “didn’t agree with all the terms therein”.[5] In April 2019, the Respondent again attempted to get the Applicant to sign an employment contract.[6] The Applicant did not sign this contract. It is unclear why not. The Respondent’s accountant, Mr Alan Miller stated that the Applicant had advised that he wanted his lawyers to look at the contract before he signed it.[7]
In any event, both the Applicant and the Respondent agree that on or about 1 June 2017, the Applicant commenced full time employment with the Respondent as an Asset Manager.[8] The Respondent has submitted that “[t]he Applicant confirmed his acceptance and adherence to the contract through the performance of his work.”[9] Further, the Applicant has made submissions in reliance on the terms of the unsigned employment contract, such as the Applicant’s request for accrued profit share entitlements.[10] This indicates that the Applicant himself believes there is a binding contract between himself and the Respondent containing terms from the written agreement. I am satisfied that there was an employment contract in place.
In addition to a profit share arrangement to receive 5% of the profits of the Respondent’s business, the Respondent offered the Applicant a 5% share of profits from a development in Lennox Head.[11] The Applicant never signed the agreement for profits in the development. The details of that profit share agreement, and the claim by the Applicant for those profits, are beyond the scope of the unfair dismissal jurisdiction.
There was a history of professional disagreements between the Applicant and Mr Benson. Mr Benson admits to having arguments with the Applicant in the two to three years prior to his dismissal.[12] However, Mr Benson maintains that he never bullied or demeaned the Applicant.[13]
Another employee of the Respondent, Mr Paul Cronin, was involved in a number of the work disagreements. Mr Benson stated that Mr Cronin and the Applicant are very close friends.[14] I accept this assessment. The witness statements of the Applicant and Mr Cronin are closely aligned to the point where Mr Cronin recalls conversations the Applicant had but which Mr Cronin was not a part of.
The Respondent contends that disagreements arose between the Applicant and Mr Benson because the Applicant was “over the top” in his loan assessments and rejected loans which were legal and valid to approve.[15] The Respondent asserts that the Applicant was “dogmatic and assertive and engaged in disagreements with the Respondent.”[16]
The Applicant had previously resigned on 14 March 2022.[17] At the time, the Respondent asked him to reconsider and the Applicant continued to work for the Respondent.[18]
The Applicant argues that he was forced to resign from his employment on 15 April 2024 and was constructively dismissed by the Respondent. The Respondent states that the Applicant was not forced to resign that he chose to do so freely of his own volition.
Was the Applicant dismissed under s.386 of the Act?
Section 394(1) of the Act states that a person who has been dismissed may apply to the Commission for an unfair dismissal remedy.
Section 386(1) of the Act outlines when a person has been dismissed and states as follows:
“(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.”
The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli outlined the relevant authorities with respect to what it means for an employee to be terminated at the initiative of the employer.[19] In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.[20]
While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.[21] It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.[22]
All the circumstances – including the conduct of both the employer and employee – must be examined.[23] In other words, it must be shown that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”[24]
The Full Bench of this Commission in ABB Engineering Construction Pty Limited v Doumit (ABB) said, in relation to determining whether the ending of an employment relationship is a voluntary or forced resignation:
“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.”[25]
Furthermore, in Pawel v Australian Industrial Relations Commission,[26] the Full Bench noted:
“Mere “causation” or “motivation” will not satisfy the requirement that the termination be at the initiative of the employer.”
Forced resignation has been interpreted by the Commission in the following ways:
- the actual conduct of the employer forced to do so, such that there was an element of compulsion present;[27]
- a ‘critical action’ or ‘critical actions’ of the employer which was intended to bring the employment relationship to an end;[28]
- as a result of some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect;[29] and
- the employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.[30]
Issues identified by Applicant to support the Forced Resignation
The Applicant and his witness Mr Cronin described a series of events involving Mr Benson that they say led to the Applicant’s resignation by creating a toxic work environment. These included:
Use of expletives in conversations with the Applicant and Mr Cronin;[31]
Allegedly making two female former employees cry;[32] and
Allegedly terminating an employee for coughing too much.[33]
I note that these allegations against Mr Benson are somewhat undermined by the witness statements submitted by four former employees of the Respondent. Two of those witnesses gave statements alleging that the Applicant and Mr Cronin were argumentative and looked down on other employees in the office.[34] The former employees stated that they had a good relationship with Mr Benson and did not witness Mr Benson bullying anyone.[35]
On 15 April 2024, the Applicant sent Mr Benson a resignation letter.[36]
The letter starts with the line: “It is with great personal regret that I must advise I am no longer able to continue working in the environment which prevails at the Company”.
The Applicant resigned effective from 15 April 2024. The Applicant contended that he in fact gave 4 weeks' notice and should have been paid as such.[37] I cannot accept this argument as the Applicant’s resignation letter plainly states: “please accept this letter as my resignation with effect from Monday 15th April 2024.”
The letter goes on reference allegedly demeaning comments made by Mr Benson in response to the Applicant’s “commercially constructive” comments in emails and recent meetings.
The Applicant places particular emphasis on a series of emails in August 2022, which involved a disagreement over a loan assessment. The Applicant also expressed concern regarding the development profit share agreement, and whether he would receive payment. Finally, the Applicant refers to the proposal by Mr Benson for an equity arrangement and the Applicant’s disagreement with Mr Benson’s plans to document the arrangement in an email.
I note that the development profit share agreement was an arrangement between the Applicant and a different company which owned the land in Lennox Head. It appears to be joint venture arrangement between the Applicant and Mr Benson for which the Applicant carried out work beyond the scope of his normal work as an Asset Manager, including applying for development approval, which I note was unsuccessful.[38] I find that the disagreement between the Applicant and Mr Benson over the development profit share arrangement was a commercial disagreement which exacerbated underlying tensions between Mr Benson and the Applicant.
Emails July - August 2022
Evidence was led regarding alleged bullying in a series of emails exchanged between the parties in July and August 2022.
These issues were clearly a disagreement over Mr Benson’s direction and how he wanted the business run and Mr Tickner disagreed and informed Mr Benson that the company was “out of control”. On 28 July 2022, the Applicant emailed Mr Benson, saying:
In my mind this has now reached a ridiculous position and your business is completely out of control. I am very sad about the outcome and you don't want to talk openly about it and just pass messages. I hope I am wrong and it will be a success for you but I told you from day 11 will express and share my honest opinion and at least I stand true to my word and have never failed to do that. I am not someone who tells people what they want to hear, I tell them what I believe to be the truth and what I think they need to know.[39]
Mr Benson replied on 29 July 2022 as follows:
Simon I'm totally hearing you the environment in the office is toxic, so I'm not sure how we address it.
We have spoken about this which obviously hasn't worked, so what I'm going to do over the coming days is write you an email and specifically point out some of the issues we have.
In summary,
the business isn't shot as you suggest,
I have new lenders im dealing with its far from that as we will now have the capacity to fund larger loans and buy the funds at reasonable rates and these parties will invest in the fund,
My view is the toxic attitude in the office,
People constantly questioning my decisions,
People constantly whinging how busy they are yet there not (this is not directed at you), yet there happy to take lengthy hols, not work Fris, just the 1 deal a month we are currently averaging. Stats don't lie. [40]
Mr Benson wanted his employees to follow his directions and Mr Tickner it seems was a source of frustration to the ambitions and plans of Mr Benson. The emails show a robust exchange on the business and although the emails reveal some animosity between the two it would seem to be mutual.
The Applicant suggests that Mr Benson did not understand the business and that Mr Benson was unable to understand the complexities of loan approvals, which caused frustration. The Applicant suggests that he had a better understanding of the financing undertaken by the business and its risks than Mr Benson. The Applicant stated that Mr Benson struggled with mathematics and had little attention to detail.[41] The Applicant submitted various emails which he said pointed to Mr Benson’s lack of understanding. Particularly, the Applicant points to an email exchange on 11 August 2022 involving a disagreement over whether to approve a loan.
The Applicant wrote to Mr Benson on 11 August 2022, stating:
Earlier this year it was agreed by all that, as part of our assessment processes, we should consider the results of the unconscionable lending judgement (Stubbings vs Jam No 2). Numerous lawyers (including Summer Lawyers) stated a position that a lender should establish that there is credible and realistic exit strategy. Peter advised Leo and Stephen to obtain this information for every loan and that we should follow this process and we added it to our application form to ensure we had something.
In this loan we have a strategy that advises “company profit” will fully repay a loan of $400,000 in a period of only 6 months. I personally don’t consider that to be a credible and realistic exit strategy unless we have something to support how that is achieved.[42]
Mr Benson replied on 11 August 2022 as follows:
If we actually did a proper assessment you will actually see the Watson loan does not even fall under the code as theres no current debt and the loans for business purposes!!
As ive said numerous times im over all these over the top assessments, but you just don’t both seem to get it, your just ticking me,staff and brokers off., which is now having an effect on the business.
Your comment below clearly shows how out of touch you are some ramble of $400k company profits/exit, do you really think in that location at a 30% LVR theres no exit via another refinance !!
ive not been happy for a long time now ive have some plans which when I return intend to implement.
Lets see how many loans you settle in my absence
Please don’t reply as im over the business and I think going on a holiday is a blessing for everyone[43]
The Applicant replied to Mr Benson’s email, saying:
Firstly one minor point……
THIS IS NOT A CODED LOAN – HOW MANY TIMES HAVE WE SAID UNCONSCIONABLE LENDING HAS NOTHING TO DO
WITH THE CODE.
Now I sill stoop to your level.
You have sadly become the most unpleasant person I have ever had to work with and the fact that you cannot even pick up the phone to say this says everything to me.
You cannot treat me like a fool and an idiot, lie to me and then make stupid comments like “see how many loans you settle in my absence”. I can put up with most of it but that last comment shows you are the fool and cannot even see we are on the same side and that we all work for you.
Enjoy your holiday and good luck with your plans…………..by the way I won’t be settling anything in your absence.
Before Mr Benson went on holiday, he emailed Ms Katika Labrum, former HR Officer for the Respondent, forwarding a copy of the Applicant’s email and stating:
Kat if Simon doesn't want to work whilst im away get onto Employsure
send the below email to them and send a warning show over his bow ... as I said below
im not happy lets move them both on and have a fresh start[44]
The Respondent gave evidence that was uncontested that the Applicant had in a previous role been investigated by ASIC and was the subject of some legal action.[45] It was suggested that as a result of this experience, the Applicant was overly fastidious and raised issues and problems that made approving new loans more onerous than it should have been. I note that the Respondent’s business involves providing low documentation loans.
Mr Benson stated that since the Applicant left the business that they had been successfully writing more loans than previously.
In my view, this series of exchanges in 2022, although somewhat bitter, does not in my opinion meet the threshold for bullying. Rather, it is a professional disagreement.
Mr Benson acknowledges that there were professional disagreements in prior years. However he states that it did not rise above professional disagreements regarding the high bar the Applicant had for approving proposals. This tension arose on a number of occasions which frustrated Mr Benson but from the evidence does not rise above that of a professional disagreement and a robust exchange of views. It is not bullying behaviour. I can see no evidence of a complaint being raised by Mr Tickner with Human Resources regarding the email. I note Mr Cronin requested that Mr Benson’s email of 11 August 2022 be placed on his file, complaining that he was being demeaned and bullied even though the email from Mr Benson was not directed at him. No other evidence was provided of the alleged ongoing bullying behaviour.
The Applicant has not put forward any evidence of ongoing “bullying” behaviour between August 2022 and the beginning of 2024.
After the Applicant had tendered his resignation on 14 March 2022, he had been asked to provide “a 1 pager of what he would like to see happen if he was to stay”.[46] Although the Applicant did reconsider his resignation and continue working for the Respondent, he did not provide the one page of feedback nor did he make a complaint about bullying at the time.
February 2024 Email Exchange
On 21 February 2024, the Applicant emailed Mr Benson regarding the strategy for the business. The Applicant discussed his involvement in the development profit share arrangement and requested a meeting regarding payments under that arrangement.
The Applicant further detailed his frustrations with Mr Benson’s running of the business:
It is taking me back to the worst days 2 years ago when I was trying to run the business in the way you had told us you wanted and then you told me I was damaging the business. You even emailed Kat at the time and told her "let's move them on" (a reference to Paul and I) and have a fresh start". That one really cheered me up when I read it!
Unlike many others, I am not a "yes man" who just tells people what they want to hear. I tell people what I think will help their business. I don't lie. I don't disrespect people and I work hard. I don't blow my own trumpet so I will let others determine whether they think I have useful skills.
I have come to the conclusion that you do not value me nearly as highly in your business as I genuinely (without ego) believe I am worth. That's fine, its your business and that's your right.[47]
Meeting on 19 March 2024
On 19 March 2024, Mr Benson requested three employees to attend the office at 7:00am.
Mr Benson had decided to offer an equity plan to the three employees, of which Mr Tickner was one.
Mr Benson did not have a final version of the equity plan but instead informed the employees that he wanted to take a step back and he was prepared to offer an amount of equity yet to be determined. He advised the employees that he would leave it to the three of them to work out an equitable split. He proposed that further work needed to be done prior to the plan being instigated. Mr Benson proposed that the agreement be documented in an email.[48]
Mr Tickner immediately took issue with the proposal and made it clear that Mr Benson had first to determine the equity and the split and have a formalised agreement rather than an email. Mr Tickner stated that “as you will shaft us like you do everyone else”.
This was not the response that Mr Benson had apprehended, and he felt that Mr Tickner was making unjustified and inflammatory remarks in front of the other employees. Mr Benson wanted this moment to be a positive one, he could start stepping back from the business and allow his senior people to run the operation.
An exchange occurred between Mr Benson and Mr Tickner. Where the four accounts of the exchange differ, I prefer the evidence of Ms Penelope Padua, who was also in the meeting. The witness statements make it clear that the exchange was fiery and heated. Mr Benson said to the Applicant words to the effect: “You should be licking my boots”.[49]
Mr Benson, reflecting on the conversation, stated that he felt that he had taken the Applicant on when the Applicant was unable to work professionally due to his ASIC investigation and given him a second chance albeit in a much smaller organisation.
The argument continued in the Respondent’s office and witness accounts support that both men were in a heightened emotional state. Following the argument, Mr Benson proposed that the Applicant take leave with full pay for the rest of the week.[50]
Mr Benson emailed the Applicant on 19 March 2024 following the meeting:
Simon, im writing this email, in regards to todays meeting with Paul Cronin and Penelope Padua.
As your aware I specifically called a meeting with the three (3) of you to discuss the potential operations of the company and offering potential equity in the company to certain employee’s.
As your aware I mentioned that I would decide on a percentage of equity within CCG to offer certain employees and they could negotiate between them selves as to the specific sums they retained as I wanted nothing to do with the internal discussions/negotiations, whereby I said I would offer this equity via an email exchange.
You then demanded you wanted a formal agreement and I should be involved in the equity distribution. Clearly I knew these issues would arise not this quickly and your actions justified my thoughts.
One of the main concerns you mentioned in front of fellow staff members is if we don’t get a written agreement “You will shaft us just like you do with everyone else”. I found this comment insulting and degrading, especially as im the one who came to the meeting offering equity in the company , when I really don’t have to.
In front of all staff members I then left the meeting and office for the day.
Given the comments you have raised and the continual issues we have personally, im proposing you to take leave with full pay until the end of this week.
Further the meeting planned with Alan Miller this week has been cancelled indefinitely.
Then on your return next week we can meet to discuss your position further.
Mr Tickner replied to Mr Benson’s email on 19 March 2024:
Hi Peter many thanks for your email.
Just as a point of order, the meeting arose as you advised me earlier this week of the meeting with Alan Miller on Thursday. I asked you whether you wanted to first discuss with me comments you had made in recent weeks about stepping back from the day to day management of the Company so we could align your expectations for me with what financial arrangements were to be contemplated with Alan Miller i.e. what work/role I would be expected to perform for any remuneration agreed. I could easily “lock away” the financial package first and then agree the workload after but I don’t think that is fair on you and the business. You asked whether Paul and Penelope should be included and I said that was your decision but that it made sense if you considered them key parts of the company’s future. I then understood from Paul that meeting was arranged for this morning and I had no idea that an offer would be made to any of us at that time but assumed we were to talk about the management structure of the Company.
I acknowledge the advice regarding the meeting with Alan Miller.
I totally refute your selective dissection below of the conversation held in the meeting this morning. There were others in the meeting and other staff in the office who I am sure heard and recall the true extent of the discussion including the various statements you made. I will not go into detail now other than to correct your assertion below that I demanded you be involved in negotiations as the actual fact is that I suggested it and went on to explain that I considered it was actually in both your and the Company’s best interest (no benefit to me whatsoever) to be involved. I also advised that I would expect such an arrangement to be properly documented and not “in an email” as the outcomes could be complicated and confirmed that I personally would not consider a long term arrangement on that basis as it provided no certainty.
From a professional position, I have no intention of taking leave until the end of the week as there are transactions we are aiming to settle in a short time frame and I don’t want to compromise the company’s ability to do that. I am happy to work from home and was going to suggest this so you could avoid a confrontation if it suited you more. If you don’t want me to do that you may make another suggestion however I am not inclined to take leave with full pay and for my own integrity will take annual leave or unpaid leave if you direct me not to come to the office or work from home.
As you know and I have told you many times, I am a person who always shares their professional opinion, which is what I believe I did this morning when stating that I (and I believed anyone else you may seek to engage on a similar basis as I stated) would not accept a proposal involving future remuneration over a long time frame to be based solely upon an email.
I will never compromise my values and integrity despite what effects may befall me. I know that I have worked 200% for this company (you even introduced me the other day as the man who works from 6.00am to 6.00pm) from the very day I joined and have never faltered despite some what were frankly some extremely upsetting previous experiences.
Please do the decent thing and either let me know quickly if you want my involvement in this journey to end or whether you want to make something work.
Simon
Mr Benson replied:
Simon, Comment on your email as follows
Irrespective of who did or didn’t call the meeting it eventuated. The outcome of the meeting is obvious.
Again irrespective of what you thought was or was not said, your comments of “You will shaft us just like you do with everyone else” clearly hit a nerve with me, to the point we’re I’m completely ticked off over the ungratefulness and continual issues we both have had now for some time.
Maybe you should ask yourself why is he so upset so let me give you an insight
Income as your aware at Xmas time you raised concerns over your income which for the FY23 was $335,143.60, in anyone’s language a great income which even Alan Miller said was the correct sum and great earn, yet I receive tone and attitude it’s the wrong amount and never a thanks.
Lennox I’m aware you have worked your butt off, but the reality is we are no closer to getting the project completed and I’m the bunny that’s spent $5mil, basically for nothing given the redesign/potential sale. Reality is anyone would give there arm for the 5% deal you have but again I’m made to feel as if I duded you and never received any thanks, bearing in mind the deal I had with Greg was a block of land, which your deal dwarfs and Greg never wanted a written agreement, as he worked for me for 12 plus years.
Lennox as your aware late last year I gave you $100k as a sign of good faith for your efforts, was there any written agreement that said I owed it to you NO, I just paid it as you as you have worked your butt off, yet all I get is a complaint over being under paid.
Profit share, as your aware basically from day 1 you have had your profit share which I’ve paid every year on time, on some occasions I’ve actually paid you a greater sum to what your entitled to, (engagement rings, travel, house Reno’s etc) which your aware of. I’m happy to make these payments to you as I know it’s helping you. Draw to your attention there has never been a written agreement yet I’ve always paid you and even more when you’ve requested it, so to suggest I dud people I don’t have written agreements with is comical, but ticks me off coming from you.
So as you can see I’m completely over the ungrateful attitude and sense of entitlement. Clearly I don’t have any written agreements with you simply my word and I’ve always paid you on time and in excess of what your entitled to on occasions, so to make the comment today “You will shaft us just like you do with everyone else” clearly has ticked me off.
So the issue is were to now, as I’ve mentioned I’m ticked off and have approached other potential employees to replace you. The reality is there’s been a tone with you and i for some time as the Boss I should not have the feeling of not wanting to come to work which I have had for some time.
You suggest to do the descent thing and advise you quickly of my intentions in regards to your employment, are you a valued employee yes, am I grateful for what you’ve done for the business yes, have I paid you above and beyond what your entitled to yes, have I kept my word without having a written agreement yes, am I completely over our continual issues yes. So from my perspective I appreciate what you do for the business, but I dislike our relationship and this needs to change significantly.
Are you staying or are you going? the way things are between us now no, you’re going…. If our relationship improves significantly over the coming months, yes you can stay. So the onus is on the pair of us to work the relationship out, as I’ve clearly stated what I like and dislike, if you elect to stay firstly I want you to move desks sit behind Paul as I want space from you for a while.
As I sit here writing this email thinking of what happened yesterday the reality is I went into a meeting offering 3 bloody good workers the opportunity of a lifetime which I thought they would be over the moon and grateful about as I want to help them, yet I now sit here thinking do I really need this rubbish, do I want to do this fund stuff, just go back to the simple old way of doing things
I think the above addresses my thoughts. As I mentioned I don’t want to see you in the office this week, feel free to work from home, there’s no point in replying to this email if you don’t agree to my above points, as it will then become an emailathon which I’m not interested in, thanks
On 24 March 2024 Mr Benson wrote:
At this point I'm still really annoyed that I went to a meeting going to offer certain
employees a great deal yet I'm made to feel like the villain, so I'm still unsure as to what
I personally want to do.
So my suggestion is, your aware I'm going to Augusta which is 2 weeks away, I think this maybe an opportune time for you to take 2 weeks off, if not feel free to work from
home and you can return to the office on the 8th April, also I think it's best you move
from your desk to behind Paul.
Both men were clearly bruised by the conversation on 19 March 2024.
Mr Benson had felt captured by Mr Tickner. Mr Benson described their relationship as being like a marriage, with its ups and downs.[51]
Mr Benson gave evidence that he felt that Mr Tickner’s approach to loan approvals limited business opportunities by taking a hard-line approach and setting a very high bar for approvals.
The Applicant had been given autonomy and scope within the business and after several years of both men working hard on the business it was clear that tension between the two had boiled over and was affecting the mental state of the Applicant and Mr Benson.
The equity proposal crystallised building feelings of resentment and frustration both men had for each other.
Time away from the office is a reasonable request by an employer following a workplace incident and the Applicant was paid for the time and expected to work – I do not find that the suggestion that the Applicant either take leave or work from home indicated a desire by Mr Benson to terminate the Applicant.
The Applicant sent his resignation through on the 15 April 2024. The Respondent replied to the resignation on 16 April and 18 April 2024 thanking Mr Tickner for his work and proposing that he could remain at the Respondent’s business until he finds an alternative.[52] Mr Benson stated that he was always available to chat privately. These are not the words of an employer who had forced a resignation.
Mr Tickner was skilful at manipulating the situation and Mr Benson felt anguish over a high performer who had a controlling aspect in his company. Mr Benson had business aspirations that the Applicant did not share and in Mr Benson’s eyes the Applicant was an ongoing frustration.
The email exchanges indicate that Mr Benson valued the Applicant highly. However, there was tension with the Applicant which was exacerbated by the long-term issue of the development profit share arrangement.
The Position advertisement
The Applicant stated that on 19 March 2024 he identified a job advertisement on Seek for a “Investment Fund Manager/Credit Manager” which he says was the employer clearly seeking to replace him and further evidence that the Respondent dismissed him.
The advertisement directed employees to contact an email address which belonged to Mr Benson’s wife.[53]
Mr Miller stated that he organised the advertisement for the position on 19 March 2024. He stated he was intending to see who was in the market and he did not contact any until the resignation had occurred. The first interview was conducted on 18 April 2024, three days after the Applicant sent his resignation letter. Mr Benson stated that Mr Miller was undertaking a “market scan” as a proactive measure, so that if the Applicant resigned the business would be able to keep functioning.
Mr Miller further stated that this “market scan” approach was the same approach that had identified Mr Tickner a number of years before.
The Respondent noted that the Applicant had been sent an email on 20 March 2024 from Mr Benson, saying:
“Are you staying or are you going? the way things are between us now no, you're going.... If our relationship improves significantly over the coming months, yes you can stay. So the onus is on the pair of us to work the relationship out, as I've clearly stated what I like and dislike, if you elect to stay firstly I want you to move desks sit behind Paul as I want space from you for a while.”
This email indicates that Mr Benson was pre-empting the Applicant’s resignation, rather than seeking to terminate him and replace him. Given that the Applicant had resigned in the past, it was a reasonable assumption that he may do so again.
While the Respondent’s advertisement could be considered as the Respondent forcing the Applicant’s hand to resign, this is somewhat mitigated by Mr Benson’s remarks that if the relationship improved significantly, the Applicant could stay.
Forced resignation requires more than an unpleasant work environment. It requires that the Applicant be left with no real choice but to resign. At the time the Applicant resigned, Mr Benson was overseas. Mr Benson had suggested on 26 March 2024 that the parties should “take the next couple of weeks off from each other”.[54] The Applicant did not respond to his request and instead sent his resignation on 15 April 2024, four weeks after the incident occurred.
I find that it was open to the Applicant to continue working, noting that Mr Benson was on holiday and was not in the country. It was also open to the Applicant to lodge a formal complaint with human resources regarding the incident during the equity discussion. He did not do this.
Was Mr Benson a bully?
The evidence does not support an argument that there was ongoing harassment and bullying by Mr Benson.
Evidence regarding Mr Benson being a bully was not substantiated, the Respondent’s witnesses did not support that view and in fact gave examples of personally feeling very supported by Mr Benson.
The Applicant has repeatedly stated that comments he made were purely “constructive”.[55] However, the witness statements of former employees suggest that other employees felt that his comments towards them were belittling and disrespectful.[56]
Conclusion
It is clear that there were ongoing tensions in the relationship between the Applicant and the Respondent. Although there were many documented arguments between the two, they were principally over the running of the business. Although the arguments occasionally became more personally directed, they were overcome and no formal complaints of bullying or harassment by Mr Benson were received. Further there was little in the way of evidence that supported Mr Tickner’s claim that Mr Benson bullied others.
Mr Tickner resigned four weeks after the verbal altercation. There was plenty of time to reflect on his future. He elected to resign.
The Applicant had options; to continue working, make a bullying application or seek mediation if he thought that might assist. Mr Benson was clearly of the opinion that he valued Mr Tickner’s skills and was open to continue working with him albeit in a more harmonious way. Mr Benson summed the situation up by asking whether the Applicant wanted to go or stay. If the Applicant wanted to stay, both parties had to work on developing a better relationship. This is a mature and adult manner to deal with a significant working relationship challenge. It was not, as the Applicant suggested, a forcing of his resignation. It was a blunt summation of what the alternatives were. Both parties had a role to play in building a better and more productive working relationship.
Mr Tickner rejected this opportunity and elected weeks after the argument to resign. The bar for a forced resignation is by nature very high and in this case the evidence does not support the Applicant’s contention that he had no alternative but to resign. He had resigned previously after some strident and robust conversations. Perhaps he had hoped that Mr Benson would again ask him to reconsider. Mr Benson did not.
In consideration of all the evidence provided before me, the Respondent did not engage in conduct, or a course of conduct, that forced the Applicant to resign from his employment.
The Applicant was not dismissed in accordance with s.386 of the Act. Therefore, the Applicant is not an employee who is a person protected from unfair dismissal and the Respondent’s jurisdictional objection is upheld.
The Application is dismissed. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
S Tickner appearing for himself as the Applicant.
M Noorzai appearing on behalf of the Respondent from Employsure Law
Hearing details:
16 August 2024 and 5 September 2024
Brisbane
Hearing via Microsoft Teams
[1] Applicant Submissions [6].
[2] Form F2, page 5.
[3] Applicant First Witness Statement [1].
[4] Ibid [2].
[5] Ibid.
[6] Ibid [3].
[7] Witness Statement of Alan Miller [5].
[8] Applicant Submissions [6]; Respondent Submissions [5].
[9] Respondent Submissions [5].
[10] 2024 Employment Agreement, cl. 11.
[11] Peter Benson Witness Statement [7].
[12] Ibid [10].
[13] Ibid.
[14] Ibid [23].
[15] Respondent Submissions [47].
[16] Ibid.
[17] Witness Statement of Peter Benson [66].
[18] Ibid [70]-[71].
[19] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.
[20] Ibid.
[21] Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.
[22] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [31].
[23] Whirisky v DivaT Home Care[2021] FWC 650 at [77].
[24] Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941 at [28].
[25] (1996) PRN6999.
[26] (1999) FCA 1660 at 58 (Dowsett J).
[27] Megna v No 1 Riverside Quay (SEQ) Pty Ltd PR 973462, 11 August 2006.
[28] Boulic v Robot Building Supplies[2010] FWA 6905, [16].
[29] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (1995) 62 IR 200, 205-206
[30] Hastie v Impress Australia Pty Ltd [2008] AIRC 102 at [48].
[31] Applicant First Witness Statement [8], [23].
[32] Paul Cronin First Witness Statement.
[33] Ibid.
[34] Steven Croll Witness Statement [9], [16]; Leo Zhang Witness Statement [8].
[35] Steven Croll Witness Statement [5]-[6]; Matthew Fendley Witness Statement [5]; Leo Zhang Witness Statement [9]; Javier Arango Witness Statement [4]; see also Penelope Padua Witness Statement [7].
[36] Applicant Resignation Letter dated 15 April 2024.
[37] Form F2, page 5; Applicant Submissions [13].
[38] Email from Colin Biggers Paisley to Applicant, dated 30 April 2024.
[39] Email from the Applicant to Mr Benson dated 28 July 2022.
[40] Email from Mr Benson to the Applicant to dated 29 July 2022.
[41] Applicant Second Witness Statement [4].
[42] Email from the Applicant to Mr Benson dated 11 August 2022.
[43] Email from Mr Benson to the Applicant dated 11 August 2022.
[44] Email from Mr Benson to Ms Labrum dated 11 August 2022.
[45] Witness Statement of Alan Miller [6].
[46] Peter Benson Witness Statement [69].
[47] Email from the Applicant to Mr Benson dated 21 February 2024.
[48] Witness Statement of Penelope Padua.
[49] Applicant Submissions [23]; Penelope Padua Witness Statement [5].
[50] Email from Mr Benson to the Applicant dated 19 March 2024.
[51] Email from Mr Benson to the Applicant dated 23 March 2024.
[52] Emails from Mr Benson to the Applicant dated 16 April 2024 and 18 April 2024.
[53] Applicant First Witness Statement [25].
[54] Email from Mr Benson to the Applicant dated 26 March 2024.
[55] Applicant Submissions [16]; Email from the Applicant to Mr Benson dated 25 March 2024; Applicant Reply Submissions [13].
[56] Steven Croll Witness Statement [9], [16]; Leo Zhang Witness Statement [8].
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