Simon Tickner v Credit Connect Pty Ltd - [2024] FWC 2735

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FWC 2735
Decision Date: 14 NOVEMBER 2024

CaseChat Overview and Summary

Simon Tickner sought a remedy from the Fair Work Commission under s.394 of the Fair Work Act 2009, alleging that he had been unfairly dismissed from his employment with Credit Connect Pty Ltd on or around 1 May 2024. The Respondent raised a jurisdictional objection, contending that Mr Tickner had resigned and was not dismissed. The Commission considered the jurisdictional objection before determining the merits. The Commission found that the Applicant was not dismissed in accordance with s.386 of the Act. The Application was dismissed.

The Applicant had commenced employment with the Respondent in June 2016 as a contractor. The Applicant commenced full-time employment in June 2017. There was a history of professional disagreements between the Applicant and the CEO of the Respondent, Mr Peter Benson. The Applicant had resigned in March 2022, but reconsidered and continued to work for the Respondent. The Applicant argued that he was forced to resign from his employment on 15 April 2024 and was constructively dismissed by the Respondent. The Respondent stated that the Applicant was not forced to resign that he chose to do so freely of his own volition.

The Commission considered the issue of whether the Applicant had been forced to resign by the conduct of the Respondent. The Commission examined the circumstances of the resignation, including the conduct of both the employer and employee. The Commission found that the Applicant had resigned after a heated exchange with Mr Benson, but had ample opportunity to continue working, make a complaint or seek mediation. The Respondent was not seeking to terminate the Applicant, but rather to develop a better working relationship. The Commission found that the Applicant had resigned of his own volition, and the Respondent’s jurisdictional objection was upheld. The Application was dismissed.

Orders