Urush Riaz v BlueScope Steel Limited
[2024] FWC 2837
•11 OCTOBER 2024
| [2024] FWC 2837 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365—General protections
Urush Riaz
v
BlueScope Steel Limited
(C2024/686)
| COMMISSIONER MATHESON | SYDNEY, 11 OCTOBER 2024 |
Application to deal with contraventions involving dismissal – jurisdictional objection – whether Applicant was dismissed or resigned – Applicant dismissed – jurisdictional objection dismissed.
On 5 February 2024, Mr Urush Riaz (Applicant) filed an application for the Fair Work Commission (Commission) to deal with a general protections dispute involving dismissal under Part 3-1 of the Fair Work Act 2009 (Cth) (Act). The Respondent is BlueScope Steel Limited (Respondent).
Section 365 of the Act sets out when the Commission can deal with a general protections application involving dismissal 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 Respondent has raised a jurisdictional objection to the application, alleging that the Applicant was not dismissed. This decision deals with the jurisdictional question as to whether the Applicant was dismissed.
Hearing
The Respondent filed submissions addressing the jurisdictional objection it had raised on 11 April 2024.
The matter was listed for a directions hearing and having heard from the parties, I decided that a hearing was the most appropriate way to determine the matter and the matter was listed for hearing. The Applicant filed closing submissions on 10 May 2024 and the Respondent filed closing submissions on 16 May 2024.
The Respondent sought to be represented by a lawyer and I granted permission pursuant to s.596(2)(a) for the reasons set out in my earlier decision.[1]
The Respondent relies on the witness evidence of Jesse Kater who is the Processing & Logistics Manager – NSW for Australia Steel Products (ASP), a business of the Respondent. A witness statement of Mr Kater was filed by the Respondent on 11 April 2024 and Mr Kater appeared during the hearing to give sworn evidence.
The Applicant also filed a witness statement with 42 attachments and gave sworn evidence during the hearing. Among these was an email dated 19 April 2024 from the Respondent’s Employee Relations Council to the Applicant with the subject ‘Without Prejudice except as to costs – C2024/686 – Riaz v BlueScope Steel Ltd’. The Respondent submitted and I accept that the email is subject to legal professional privilege. Further, I do not consider it to be of relevance to the issue requiring determination. I have not had regard to it in making this decision
Applicant’s position
The Applicant contends that he was both dismissed and notified of his dismissal on 16 January 2024.[2] The Applicant said in his application that he stated he resigned when he believed he clearly gave indications that he did not want to.[3]
In an email sent to the Commission, the Applicant said:
‘Having to deal with Sickness at home, constant misrepresentation at work and being advised my accomplishments were sheet (sic) luck, whilst facing the prospect of 3 months return from knee surgery, I was sick, sad and felt hopeless. I was later advised by PECC and ambulance (called by Injury Care) I was suffering from severe depression’.[4]
Respondent’s position
The Respondent’s position is that:[5]
The Applicant resigned his employment via text message on 15 January 2024, providing
4 weeks’ notice but requesting he cease work immediately and be paid out his notice period. [6]
The Respondent accepted the Applicant’s resignation on 16 January 2024 and agreed to pay out the 4-week notice period. [7]
There was no reasonable basis for the Respondent to hold the view that the resignation was not intended as the Applicant:
odid not attend for work on the day he resigned or any subsequent day;
odid indicate some concerns about resigning given his ongoing workers compensation claim, however the Respondent confirmed the workers compensation claim would not be impacted by the resignation;
oattempted to ‘walk back’ his resignation on 16 January 2024;
osubsequently confirmed his resignation later that day. [8]
On 17 January 2024, the Applicant sought to withdraw the resignation. The Respondent rejected this request.[9]
The reasons the Applicant gave for seeking to rescind were not consistent with an intention not to resign. [10]
The Applicant had a clear choice not to resign and there were no events or circumstances that arose in which the Applicant could have believed he was forced to resign from his employment.[11]
The resignation was not given “in the heat of the moment” and, while the Applicant expressed some hesitation following the resignation, it was ultimately confirmed.[12]
The Respondent did not terminate the employment of the Applicant at its initiative.[13]
The Applicant was not dismissed.[14]
The Respondent submits that the Commission should uphold the objection and dismiss the Application.[15]
Legislation
The term ‘dismissed’ is defined in s.386(1) of the Act as a situation where:
(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.
However, s.386(2) of the Act provides that 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 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 significant reduction in his or her remuneration or duties; and
(ii)he or she remains employed with the employer that effected the demotion.
It is not disputed and I find that none of the circumstances referred to in s.386(2) of the Act are relevant to the present case.
Evidence
It is not in contention that the Applicant commenced employment with the Respondent on 13 June 2023[16] and that Mr Kater was the Applicant’s manager for the duration of the Applicant’s employment.[17]
Events during Applicant’s probational period
The Applicant said that after he commenced employment he undertook a number of initiatives including but not limited to:
going through work health and safety, finance and maintenance reports to understand opportunities;
cleaning up the site and removing redundant cost;
closing out workers’ compensation claims;
reducing labour and accrued leave balances;
reducing maintenance costs;
engaging the landlord to drive site repatriation works as per the lease agreement with the result that there were no outgoings payable by the Respondent.[18]
The Applicant identified that he experienced a number of challenges and, by way of summary, said:
it became apparent that he was not overly welcome and lacked support from his managers in multiple areas;
he did not receive a work mobile phone, was using his phone until November and had to port his number across;
he did not receive a work credit card until September;
he made a complaint of inappropriate conduct in relation to two managers and he was subsequently advised that he was at risk of not making probation;
there were delays in managers actioning matters or providing feedback and follow ups were ignored;
Mr Kater had advised him that his style of leadership was based on ‘wait and see’ and attributed his accomplishments to ‘luck’;
due to a reduction in the number of logistics departments from three to one, he was advised he would be taking on Sydney Logistics managing logistics at Erskine Park and Chullora but there was no discussion with him regarding additional workload and remuneration;
he was not signed off on ‘Safe Systems of Work’ but was required to manage the system and failures in team members who were accredited.[19]
Applicant’s concerns regarding management of the order book, stock holdings and rejection of truck loads
The Applicant filed a number of communications with the Commission that were sent during his probationary period.[20] This included a lengthy email from the Applicant to Mr Kater in which the Applicant on 5 August 2023 stated he had decided to formally escalate behaviours he had ‘encountered in [his] time at the BlueScope Chullora Service Centre (CSC)’ and raised concerns about the management of the order book, stock holdings and rejection of truck loads. In the email the Applicant details his attempts to discuss the issues and frustration with the lack of response and resolution. By way of summary, in the email the Applicant:
said he attended a meeting and during 40 minutes of it was, in his opinion ‘relentlessly attacked, humiliated, dismissed and ignored’;
said he felt a ‘rush of emotions’ and ‘anger stemming from a strong sense of injustice’;
admits he let his frustrations get the better of him and should have shown far more control in the situation;
complained about the conduct of the Respondent’s Northern Region Manager, Distribution, who the Applicant said was mocking him and causing him to experience degradation and humiliation, and another employee who he says spoke quickly and strategically to keep the conversation moving and keep it circular despite attempts to redirect the conversation;
stated that he and ‘Melissa’ were going to the Police Station in the morning to make a statement.
Suggestions for resourcing changes
The Applicant filed a copy of a series of emails relating to the engagement of the services of a physiotherapist on site, which appears to have emerged from a proposal discussed with the Applicant.[21]
The Applicant also filed a copy of an email from Alison Wheway, Road Operations Leader, to Mr Kater, the Applicant and Gonzalo Gutierrez from the Respondent’s human resources department which appears to make some suggestions for resourcing changes within the Sydney Logistics Team.[22] The Applicant filed a copy of his email in response which appears to make some suggestions for change.[23]
On 22 November 2023 Mr Gutierrez wrote to the Applicant, Ms Wheway and Mr Kater indicating he had an initial discussion about this with Respondent’s employee relations expert who was concerned about the idea, it was agreed that it would be explored further and the matter would be picked up again when the employee relations expert was back from leave the following week.[24]
Probationary meeting on 22 December 2023 and passage of probation
Mr Kater gave evidence that:
on 22 December 2023 he met with the Applicant and gave him a letter confirming he had passed his 6 month probationary period on 13 December 2023;
during this meeting he discussed with the Applicant that his attendance would need to improve and this included him being on site at 8.30am to run site meetings for which he was responsible;[25]
22 December 2023 was Mr Kater’s last day of work (before the Christmas/New Year break) and he did not return until Monday 15 January 2024.[26]
The painting project
The Applicant was involved in a painting project in relation to the administration building at the Chullora site. During cross examination the Applicant put to Mr Kater that the painting project had started in early to mid December prior to Mr Kater commencing leave. Mr Kater’s evidence was that there had been a request to give the administration building ‘a birthday’ and the Applicant was involved in a project to assist with this. During the hearing Mr Kater said he left the Applicant to do this, providing limited direction, but did not know why the Applicant made a decision to undertake the painting activities himself.
Applicant’s injury on Thursday 11 January 2024
The Applicant said across 10 and 11 January 2024 he inadvertently worked overnight and injured his knee whilst painting the administration building.[27] The Applicant filed a copy of an incident report made by a security services provider which records that at 1.15am there were staff on site working late.[28] A copy of the Applicant’s drivers licence appears to be attached to that incident report indicating the Applicant was one of the members of staff working late on site.
The Applicant said he was on site until 5pm that day despite Mr Jeff Moore and Mr Ghamadi being aware he had been on site for over 30 hours.[29] I understand the reference to 5pm may be intended as a reference to 5am.
The Applicant filed a copy of a certificate of capacity completed by a medical practitioner, dated 11 January 2024, which indicates that the Applicant’s right knee was affected by a ‘lateral collateral ligament sprain +/- lateral meniscal injury’. A number of restrictions were listed on the certificate of capacity including that the Applicant:
had a lifting/carrying capacity limited to 5 kilograms when standing;
was confined to seated duties only;
was only able to push and pull from a seated position;
was to avoid activities requiring bending, twisting or squatting;
was only able to drive automatic vehicles;
was to avoid lunging, bending, kneeling, squatting, crouching, stooping and climbing.[30]
The Applicant said as there were stairs on entry to the administration building he was advised by Mr Ghamadi that he could work from home.[31]
Discussion between the Applicant and Mr Moore on 12 January 2024
The Applicant said he had a conversation with Mr Moore on 12 January 2024 and appears to suggest that Mr Moore had told him he could have workers paint the administration building in overtime, raised cost issues and said he could not keep ignoring the Applicant’s failures as a site leader.[32] The Applicant appears to suggest he told Mr Moore that he had utilised spare team members, had been tracking ahead of budget for months and had significantly reduced accrued leave.[33] The Applicant said the conversation shocked him as he ‘could not believe how little Mr Moore knew of how Chullora had been tracking’.[34] The Applicant said he felt defeated, sick and did not sleep well over the next few days.[35]
During cross examination Mr Kater said that he was aware that the Applicant and Mr Moore had a discussion on Thursday 11 January 2024 based on what M Moore had told him on Monday 15 January 2024. Mr Kater was asked to elaborate and said that Mr Moore had indicated:
· he had a conversation with the Applicant about his painting activities in the administration building;
· the Applicant had hurt his knee and had not taken it seriously or reported it;
· he was concerned about the Applicant not reporting it;
· once the Applicant had gone out to see the doctor and the doctor had given him suitable duties inconsistent with painting duties, the Applicant had returned to site to continue the painting ;
· he was concerned about the Applicant’s judgement in relation to the incident in the first place and the Applicant’s reaction to the suitable duties.
The Applicant said that he was asked multiple times by multiple managers when the paining would finish and he felt pressured to complete the painting ‘despite it being a contravention of his restrictions’.[36]
Email from the Applicant to Mr Kater on 12 January 2024
Mr Kater’s evidence was that on Friday 12 January 2024 the Applicant sent an email to Mr Kater and Mr Moore of the Respondent with the subject heading ‘6DOT’ (12 January Email). A copy of the email was annexed to Mr Kater’s statement[37] and reads:
‘I believe the time has come for full transperancy [sic]. To date I have spared this out of respect, whilst remaining tight lipped in response to the varying theories bandied around about my Leadership style, Control and Influence.
I would request you to not spare my feelings. I would like to understand all of my Weaknesses and Opportunitites (sic).
Please consider a preferred conclusion to the matter. If it’s not working, it’s not working.’
Mr Kater’s evidence was that he read the above email on the afternoon of Sunday 14 January 2024 as he was preparing to return to work the following day and was confused by the subject heading of the email. ‘6DOT’ and its contents.[38]
Mr Kater said he was aware, from an email he had also received from Mr Moore, that Mr Riaz and Mr Moore had interacted the previous week and that Mr Moore had expressed concerns about Mr Riaz’s conduct and he assumed this is what Mr Riaz was referring to in the email.[39].
Applicant’s non -attendance on site on 15 January 2024
Mr Kater said he returned to work on Monday 15 January 2024 and was expecting the Applicant to attend site at 8.30am but the Applicant did not attend work that day.[40] At 12.26pm on 15 January 2024 Mr Kater messaged the Applicant and said:
‘Hey mate … Can’t see you onsite today. You ok?’[41]
Mr Kater said that as he did not receive a response, at around 2pm he called the Applicant on his work mobile number however the Applicant did not answer.[42] Mr Kater said he then called Mary Riaz, the person listed as the Applicant’s emergency contact, who did not answer and that he left a voicemail message.[43]
As noted above, it is also apparent that Mr Kater had a conversation with Mr Moore about the concerns he held with the Applicant on 15 January 2024.
While the Applicant was not on site, the Applicant contends that he was working from home. During cross examination the Applicant asked Mr Kater whether there were extenuating circumstances that prevented his attendance on site at 8.30am that day and, in particular, whether he was aware that the Applicant was getting fitted for a compression pump for his knee to which Mr Kater indicated he was not aware and that is why he asked the Applicant.
During cross examination the Applicant asked Mr Kater what he knew of the Applicant’s knee injury on 15 January 2024 to which Mr Kater indicated he knew the Applicant had been painting, had twisted his knee and had been given suitable duties inconsistent with him doing painting duties but which still enabled him to do office work, consistent with his primary role. The Applicant asked Mr Kater whether he was aware that the restrictions were not consistent with the Applicant attending the office and Mr Kater indicated that he was not aware at the time of the text message exchange.
Scheduling of meeting with human resources and Applicant’s response
At 2.03pm on 15 January 2024, Mr Kater sent a meeting invite to the Applicant and Mr Gutierrez, the Respondent’s Human Resources Business Partner, for a meeting at 12.30pm on Thursday 18 January 2024 with the heading ‘6DOT feedback’.[44] Mr Kater said he sent the meeting invitation in order to discus the meaning of the 12 January Email with the Applicant.[45]
At 4.59pm on 15 January 2024, the Applicant responded to Mr Kater’s text message that he had sent at 12.26pm that day stating:
‘I’m alright. Just awaiting some invoices to square off the credit card. A couple of loose ends is all.’[46]
Mr Kater responded stating that the Applicant had been expected on site that day and asking whether there was a reason the Applicant was not on site.[47]
The Applicant responded via text messages stating ‘A few reasons’ and sent a subsequent text message, with reference to the meeting Mr Kater had organised with Mr Gutierrez, ‘You have booked in for Thursday. This is not what was requested.’ [48] Mr Kater said he responded with a ‘thumbs up’ emoji to indicate he understood the meeting was not requested.[49]
In response, the Applicant sent a further text message stating:
‘Thanks for liking Jesse, however I have no interest in meeting with Gonz. There are some misconceptions that I believe need to be sorted out with Jeff. These misconceptions have let rise to a number of issues that needn’t be prevalent. We are at a precarious point where I feel unless these are addressed it will be difficult to continue in this manner. Extremely aware I am making a Rod for (sic) own back here, I am still committed to seeing this through. The number of outcomes from here which have a positive outcome for me are extremely limited, however, if you know anything about me, you know I am not willing to drop this now.’[50]
Mr Kater said that he considered a meeting was required to discuss a number of issues.[51] Mr Kater responded via a further text message stating:
‘The meeting on Thursday is designed to discuss your enquiry. Are you onsite tomorrow? Will you be facilitating the 8:30am meeting? Also tomorrow could you please provide an update on the progress and plan for the office update. Including a layout drawing. I am looking to update broader team on expected finish date’.[52]
The Applicant said he could not understand why human resources would be in the meeting and formed the opinion that he was going to be reprimanded.[53]
The ‘Resignation Texts’
In response the Applicant sent a further seven successive text messages stating:
‘That’s disappointing’;
‘We should discuss exit strategy’;
‘I would not like to return, BlueScope reward me first my hours of extended dedication, pay me till the 9/2 fortnightly as normal, so as not to upset my wife and I need some time for the knee to heal, prior to pre employment medicals’;
‘I will virtually meet with Jesse K to provide handover’;
‘Credit card is in office, keys, sim and laptop returned to BlueScope prior to end of this week’;
‘I can send email advising team, issues outside of work have forced unexpected step and thank BlueScope for support’; and
‘Happy to do any and all tests/scans to prove knee injury is not fake’ (Resignation Texts).[54]
Mr Kater’s evidence was that he understood the Resignation Texts to be the Applicant saying that he did not want to return to the Respondent and that he wanted to resign and was offering the terms of his resignation.[55] At 10.33pm that night Mr Kater responded stating:
‘Urush chasing this request up. I will get back to you tomorrow, can you quantify the extra hours?’[56]
Mr Kater said that the reference to ‘chasing this request up’ was intended as a reference to the Applicant’s request that he be paid out for his four week notice period rather than being required to work out his notice period.[57]
Applicant’s non-attendance at site on 16 January 2024
Mr Kater’s evidence was that the Applicant did not attend work on 16 January 2024, being the day after the Applicant sent the Resignation Texts.[58]
While the Applicant was not on site, the Applicant contends that he was working from home.
Communication of acceptance of resignation and Applicant’s response
On 16 January 2024 at 9.29am Mr Kater send the following text message to the Applicant:
‘Urush
Confirming we accept your resignation effective immediately.
In acknowledgement of your hours of extended dedication we are happy to pay you until the 9/02/24 (inclusive) without working.
I will arrange a time on Thursday to facilitate a virtual handover.
Could you please then arrange to return the company assets by the end of the week.
Prior to this time could you please reconcile your credit card.
I will send a communication to the team acknowledging your leaving. I will do this as it will incorporate additional information for the teams immediate future.
Regards
Jess.’[59]
The Applicant responded as follows via text message:
‘This will have to go on back burner. Need to understand knee pain.’[60]
Mr Kater said he understood from the message that the Applicant was expressing a concern about what his resignation would mean for his ongoing workers’ compensation claim.[61] At 11.13am on 16 January 2024 Mr Kater responded via text as follows:
‘Not to worry. Your knee claim is supported by our workers comp team beyond your employment. You will still be supported for it. The workers comp team will be in contact. When is your next appointment? We have processed your resignation as previous direction’.[62]
In response the Applicant sent the following four successive text messages:
‘I gave no direction’.
‘It states we should discuss’.
‘Happy to test this if you like?’; and
‘Actually don’t worry, I’ll sort it out’.[63]
Mr Kater said he understood the last of the text messages outlined above to mean that the Applicant was confirming he agreed he had resigned.[64] On 16 January 2024 Mr Kater emailed the Applicant attaching his offboarding documentation[65] and at 3.49pm that day Mr Kater sent the following text message to the Applicant:
‘Hey Urush
I have sent your exit paper work through to your gmail account.
I am conscious this process is not easy so would like to define a day/time for you to return the assets and pick up your personal items.
Conversely if easier you could courier equipment to us and vice versa.
Which would you prefer?
Jess’[66]
Mr Kater said on the afternoon of 16 January 2024 he completed the Applicant’s paperwork and sent it to human resources for processing and understands that the Applicant’s access to the Respondent’s IT systems were removed that afternoon.[67]
On 17 January 2024 the Applicant refutes that he resigned
The following morning, 17 January 2024, the Applicant sent the following text messages to Mr Kater:
‘I’ll be on site at Chullora today Jesse, feel free to drop in. I’ll be there all day…’; and
‘Need to get a hold of IT, my phone and laptop playing up. All good, I got in’.[68]
Mr Kater sent the following text message in response:
‘Urush
Your retirement was effective immediately. I have some time at 1.30pm today for a handover and submission of assets if that is a good time.
I would request that you don’t attend site outside of this time so as not to distract the staff.
Outside that you no longer have an onsite function and don’t need to be onsite.
Cheers
Jess.’[69]
The Applicant responded ‘I don’t recall retiring’ to which Mr Kater said ‘Apologies your resignation’.[70] The Applicant then sent the following two successive text messages to Mr Kater:
‘There was no resignation’; and
‘Hence I continue operating as normal’.[71]
Mr Kater responded stating:
‘It is the company’s position that you have resigned. Do not attend site until 1.30pm for a handover. If you attend you will be asked to leave.’[72]
In response the Applicant sent the following six successive text messages to Mr Kater:
‘Well the company is ill informed’;
‘I did not resign, you have evidence of such throughout the chat you chose to ignore. A contravention of general protections. Bullying me into resignation is also protected;’
‘Bluescope is well aware this is a dismissal, however happy to just play it out in court.
It gives you what you need right now, no one to question the way the site had been run for an extended period of time. No systems, no processes, not even close to Manufacturing Excellence.
The system Jeff was high diving Charles about is a basic handover, purported after the CSL4 car hydraulic lines replacement.
However, despite Jeff’s years of Manufacturing Excellence he can’t read lose (sic) the process doesn’t work for this P4.
This would rely on 50 sets of eyes missing the open cabinet for 20 business days. Highly improbable. Another botched investigation.
Funny how Jeff didn’t know we run only 8 shifts a week not 9?
The finances for December look quite good considering carrying OT Supers. But why rely on facts when we have management who ran Chullora, know Chullora.
Are you and Jeff concerned my ideas show how little you accomplished in your time?’;
‘Funny how someone goes from painting an office to save money, gets injured, 2 days later clutching at straws for his resignation?
What happened here?
I painted all night trying to get another colour change done, so as not to drag into the year.
The weekend prior to the 8th, I spent all weekend onsite cleaning up so CS and sales would have a clean office to walk into.
How is this someone you want to get rid off (sic)?’;
‘Anyway, your claims of resignation mean very little. You can apply to court to have them upheld and injunction for me not to return’;
‘But your legal team know that already. Hence pushing the resignation’.
On 17 January 2024 at 9.01am the Applicant sent an email to Rebecca Roberts, Tania Archibald and Gerald Cornelius of the Respondent which had the subject line ‘I just want to improve’ and stated:
‘Morning Rebecca,
I’m at a loss as to why I’m being let go?
22 December – 8 January. Managed Bay 1 rail removal works and painted admin building levels 1 and 2. Crew of 5 assisting.
6 – 7 January, spent the weekend onsite cleaning in preparation for teams due back in 8th. Wife and son joined me onsite so as to spend time with me.
8 January, Advised paint colour pre picked, was not was expected. Colour changed.
9 -10 January, Painted 1 coat white and 1 coat Sothern, with 1 person assisting as I didn’t want to utilise OT.
11 January, Inadvertently painted all night from 10-11, Charles came onsite around 5.30am startled me. I twisted, knee felt pain. Kept painting.
After morning meeting 8.30 – 9. Onsite physio spotted me limping, assessed. Sent to doctor. Doctor booked at 1.30pm. Kept painting. Advised grade 2-3 strain lateral ligament (?) right knee. Need scans to confirm.
12 January, Did not paint
15 January, Jesse first day back asking in text message when the painting would be finished? Advised Jesse I wanted to discuss some things with Jeff, meeting invite sent. Meeting Invite, Jeff replaced with Gonz.
16 January, Despite constantly advising Jesse I did not want to resign, I have resigned.
I just want to know what I did wrong? I’m not faking the knee injury. I have been advised I can’t go back to site. ‘There is no onsite role for me’.
I have spent countless hours building Chullora, the teams are averaging 1800T/week, however only work 8 of the 9 shifts. We utilise Fridays for maintenance instead of the weekend, saving buckets loads of cash.
I proposed extending the conveyors on the 4 lines to remove the risk posed by the cranes, with a labour saving. We send out what deliveries are likely to miss every Thursday to CS have a chance to advise customers for a more amicable relationship.
What did I do wrong? Question Jeff M?
This is a harsh punishment …’[73]
Wednesday 17 January 2024
Mr Kater said the Applicant did not attend for work on Wednesday 17 January 2024.[74]
During the hearing the Applicant gave evidence that he did return to site on Wednesday 17 January 2024. During cross examination the Applicant also asked Mr Kater whether he was aware that he had dialled into the 8.30am meetings on 16 and 17 January. Mr Kater indicated he was unaware and could not remember if he had asked anyone about this.
Text message exchange between Mr Kater and the Applicant on 18 January 2024
On 18 January 2024 Mr Kater sent the Applicant the following text message:
‘Hey Urush
Had you made a decision about best method to return the computer and other items and pick up personal items? How is 3pm Wed 24 Jan?
I am conscious you have 2 pallets of tile and the old trailer onsite aswell (sic). How would you like to pick these up?
If you haven’t thought of an alternative by the 24th I will gather your items from the office and get a courier organised for them and the above pallets/trailer to your home address to make it easy
Cheers
Jess.’[75]
The Applicant replied:
‘The computer you should let me have, or at least the HDD. There’s more than that there, there’s the safe, the old boom gates, old conduit.
In all seriousness though, the knee is getting pretty concerning. Not responding to icing and strapping buckled on me.
Sorry about what I said to you yesterday. I have a lot more respect for you than that.
I was just trying to hurt you like you hurt me.
I know you are doing this because you wanted me on site in the morning. Industry 4.0 requires a self-managed work place. The guys on the floor need to be accountable to each other, not to me or the business. That’s when you’ll have lasting change.
I’m probably just tired, but I think I get it.
Though this was a drastic step to make a point.
I’ll move on, you’ll move on, but I did respect you during my tenure.’[76]
Mr Kater said that the only interactions he had with the Applicant during this period were via the text messages as set out above.[77] Mr Kater said the Applicant did not call him during this period and he did not call the Applicant during this period as he was worried about communicating verbally and preferred to communicate in writing.[78]
Credit card expenditure
Mr Kater said that there are around $14,400 worth of purchases made on the Applicant’s company credit card which are unaccounted for, including around $11,900 worth of purchases that do not appear to be business related such as purchases from Amazon marketplace and Pickles Auction House.[79] A copy of the relevant credit card statements and purchases were attached to Mr Kater’s witness statement, indicating that purchases were made between 20 September 2023 and 16 January 2024.[80]
Letter confirming termination
On 16 January 2024 the Respondent’s People Services Team wrote to the Applicant stating:
‘We wish to confirm the end of your employment with BlueScope’s ASP Manufacturing business which becomes effective on 09.02.2024.
People Services have been notified of your departure date and will commence calculating your final pay. If you have any questions please contact People Services on 1800 993 968.
BlueScope’s purpose reflects our capacity and intent to deliver on our commitments to create and inspire smart solutions in steel, and to strengthen our communities for the future. Urush, we would like to take the opportunity to express our sincere gratitude for the contributions you have made to BlueScope throughout the duration of your employment to achieve this aim. We wish you all the best for the future’ (Termination Letter).[81]
Relevant legislation
In order to make an application to the Commission to deal with the dispute, the Applicant needs to have been dismissed. This is a jurisdictional prerequisite, and the Commission can only deal with a dispute under s.368 (e.g. by exercising conciliation powers and issuing a certificate) if the application can be “made under” s.365.[82] In this regard, the Full Bench in Lipa Pharmaceuticals Ltd v Mariam Jarouche[83] said:
‘Where the respondent to a s 365 application contends, in its response to the application or otherwise, that the application was not validly made because the applicant was not dismissed, this must be determined prior to the Commission ‘dealing’ with the dispute under s 368 including by conducting a conciliation conference.’[84]
The dispute about whether the Applicant has been dismissed and an application can be made under s.365 must therefore be resolved before the non-determinative powers conferred by s.368 can be exercised.[85]
Section 12 of the Act defines the term ‘dismissed’ by reference to s.386. Section 386 provides:
“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’.
It is not in contention that the circumstances described in s.386(2) do not apply to the Applicant.
Consideration
In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[86]the Full Bench observed that the usual position is that where an employee uses unambiguous words of resignation, the employer is entitled to treat this as an effective resignation which operates to terminate the employment.[87]
However the Full Bench went on to consider case law and authorities dealing with circumstances in which an ostensible resignation may not operate as an effective resignation capable of acceptance by the employer. The Full Bench found:
‘[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[88]
Applicant’s submissions
During the hearing, the Applicant appeared to confirm that he resigned in the heat of the moment however in his closing submissions the Applicant said, by way of summary:
the Respondent was attempting to ‘make a connection where one did not exist’;
he had been experiencing a high load of stress due to personal matters and the injury, including the prospect of surgery, and conversations on 15 and 16 January served to compound his stress levels;
during the message exchange on 15 January 2024:
othe Applicant raised specific complaints which affected his standing within the business, the Respondent sought to dismiss the claims, including by discussing other matters;
ofrom this point there appeared to be a noticeable shift in the way the Applicant was messaging, moving from a long multifaceted text message to start the conversation to smaller text messages;
othe Applicant raised issues which give insight into a state of confusion and heightened stress;
the final message ‘Happy to do any and all tests/scans to prove knee injury is not fake’ raises significant insight into the Applicant’s state of mind and provided Mr Kater, who had intimate knowledge of the Applicant’s significant other ongoing personal matters, a reason to confirm the initiated path;
Mr Kater had another reason to confirm the Applicant’s direction and reasoning when he received the Applicant’s text message at 9.30am on 16 January asking to ‘put this one the back burner’ and where the Applicant said at 11.13am ‘I gave no direction’, ‘we should discuss’, ‘Happy to test this if you like?’ and ‘Actually don’t worry, I’ll sort it out’;
even if Mr Kater is to be believed that he took the final message out of this exchange to ‘mean acceptance’, this still served to provide Mr Kater with a tangible example of erratic behaviour, heightened mental state and confusion;
the Commission can be satisfied of a ‘heat of the moment’ text message exchange which saw the Applicant raise specific complaints and when it appeared the matter was heading down a similar path to complaints he raised previously, the manner of messaging changed significantly and shows the Applicant was in a state of ‘emotional stress or mental confusion’;
the Applicant’s messaging from 16 January shows aggression and further evidenced emotional stress or mental confusion;
the Respondent has a sizable human resources department and dedicated legal counsel and has no excuse for not clarifying the Applicant’s genuine intention;
the Applicant continued to log into work and work from home as per the arrangement with Mr Ghamadi on 15, 16 and 17 January whilst dialling into the 8.30am morning meeting on each of those days, evidencing that the Applicant was not absolute in his intention to resign;
the Respondent was aware the Applicant was working from home and logging in daily however has sought to mislead the Commission in relying on his physical absence from site.[89]
The Applicant appears to submit his resignation was made:
‘in the heat of the moment’; and/or
when he was in a state of emotional stress or mental confusion such that he could not reasonably be understood to be conveying a real intention to resign.
While the evidence filed by the Applicant relates to a series of events occurring during the Applicant’s employment and extending as far back as July 2023, it is not apparent that he contends that he was forced to resign due to the Respondent’s conduct. The materials provided to the Commission dealing with events throughout the course of the Applicant’s employment may however have been provided in order to provide some insight into the Applicant’s state of mind. In particular, the Applicant submitted that during the text message exchange on 15 January 2024 in which the Applicant resigned, it appeared the matter was heading down a similar path to complaints he raised previously resulting in a change in the manner of messaging.
The Applicant also submitted that there are parallels with his case and Bethan St John Rutter v Anglogold Ashanti Australia Limited.[90] In that matter it was found that the resignation was tendered while the Applicant was in a state of high stress such that it was considered to have fallen into the category of resignation contemplated by the decision in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[91] after the applicant had a reaction to eating icing from a cake after having disclosed food allergies to her employer.
Respondent’s submissions
The Respondent submitted, by way of summary, that:
· the Applicant, while leading medical evidence as to his knee injury, has led no evidence of ‘emotional stress or mental confusion’ and at best says, without any supporting evidence, at some later point in time which is unclear, he was told he was suffering from severe depression;[92]
· it was incumbent on the Applicant to lead evidence in support of his contention that his mental state was affected at the time his resignation was proffered and an inference should be drawn, absent such evidence, that any such material would not have assisted the Applicant’s case;[93]
· while the Applicant may have felt defeated and nauseous and may not have slept well, the Respondent was not made aware of any of those matters at the time and nor do they permit a conclusion that he was incapable of rationally articulating himself.[94]
The Respondent also submitted that:
despite some evidence from the Applicant that he was working from home on Monday 15 January 2024 he did not immediately answer Mr Kater’s messages or return his calls;[95]
the Applicant’s evidence that he was working, message to Mr Kater stating “I’m alright” and was waiting for invoices as well as dealing with “loose ends” is at odds with the Applicant’s suggestion that he was of unsound mind as at 15 January 2024 when the resignation was proffered;[96]
even if the Applicant was of unsound mind (which the Respondent does not concede), it is difficult to see how Mr Kater, in the absence of ever receiving any medical evidence alerting him to any kind of mental health issue and having been told by the Applicant that he was “alright” was objectively supposed to deduce that the Applicant was not “alright” such that Mr Kater needed to make further enquiries as to the genuineness of the intention behind the messages that followed.[97]
The Respondent submitted that the content of the Applicant’s messages demonstrate that the Applicant had carefully considered his resignation and the next steps that need to be followed once the employment relationship ended and if the Applicant was not of sound mind, his resignation would not have demonstrated consideration of issues like a handover or communications with staff.[98]
Further, the Respondent submitted the detail in the messages sent by the Applicant meant that his contention that his resignation was given in the ‘heat of the moment’ is unable to be accepted.[99]
The Respondent also submitted that a conclusion that s.386(1)(a) is not engaged, i.e. that the Applicant’s employment has been terminated on the Respondent’s initiative, is supported by three additional matters:
the Applicant indicated in his opening oral submission that his resignation was something he had considered in advance, stating words to the effect that he was “disappointed” with his conversation with Mr Kater, “put up an empty threat” and may have “overstated his importance to the business and their need to keep [him]”.[100] The Respondent submitted it may well be that, in the Applicant’s mind, the resignation was a threat that would be resisted by Mr Kater and lead to some change in the direction of their correspondence but that did not occur and the resignation, once given, could not be unilaterally withdrawn;[101]
the Applicant’s messages refer to some time ‘for the knee to heal, prior to pre employment medicals’ and this demonstrates that the Applicant had so carefully considered his resignation that he had already turned his mind to alternative employment opportunities.[102] In particular, the Respondent referred to the Applicant’s request to not attend work in order to allow time for his knee injury to heal to put him in the best position to pass a pre-employment medical check with future employers and said such a detailed level of consideration is contrary to the suggestion the resignation was given in the ‘heat of the moment’ or that the Applicant was overwhelmed by emotion or any other mental health issue at the time;[103]
there is no evidence at all that any of the messages were, in fact, sent in the ‘heat of the moment’, or at a time when the Applicant was overwhelmed by emotion or some kind of mental health condition and in circumstances where the Applicant bears the onus of establishing jurisdiction, the absence of this evidence is fatal.[104]
The Respondent noted that an issue that arose in the Applicant’s cross-examination was the Applicant’s contention that he did not resign on 15 January 2024 but instead, only wanted to have a discussion with the Respondent about it.[105] In this regard the Respondent submitted that a resignation is not something that can be ‘discussed’ in the sense that an employer can reject it but what can be discussed between and employer and employee is the terms and practical features of how the resignation will be implemented.[106] The Respondent submits this is what the Applicant asked to talk about with Mr Kater, in other words the Applicant was not discussing whether he would exit the business or not, but rather, the ‘exit strategy’.[107]
The Respondent submitted that even if the Commission were to accept that the resignation was given in the ‘heat of the moment’, the analysis does not end there and there must be a prompt withdrawal of the resignation when the ‘heat dies down’.[108] The Respondent submitted that if a resignation is not swiftly withdrawn it cannot be said to have been given in an ill-considered and non-binding manner in the first place.[109] In this regard the Respondent submitted that it was open to the Applicant to send a text message to Mr Kater at any time in the afternoon or evening of 15 January 2024 or in the morning of 16 January 2024 seeking to withdraw his resignation but he did not do so and did not present any evidence or other material to explain his failure to withdraw his resignation.[110] The Respondent submitted this was particularly stark when Mr Kater wrote to the Applicant at 10.33pm on 15 January 2024 asking for clarification on one of the Applicant’s requests associated with his resignation and no response was forthcoming.[111]
The Respondent noted that at 9.29am on 16 January 2024 Mr Kater conveyed the acceptance of the Applicant’s resignation with immediate effect and submitted the Applicant’s response to the communication was telling in that he does not challenge the proposition that he had resigned the day earlier and instead said ‘it’ needs to go on the backburner.[112] The Respondent submitted:
· the reference to ‘it’ must be a reference to the resignation;
· there was no withdrawal of the resignation but to the contrary the Applicant embraced the fact of his resignation by asking it to be delayed, i.e. ‘go on back burner’;
· even if the resignation was given in the ‘heat of the moment’ a withdrawal of the resignation would have been too late as the ‘heat died down’ by the evening of 15 January 2024.[113]
The Respondent submitted that the messages sent by the Applicant on 17 January 2024 could be deemed to be an attempt to belatedly withdraw the resignation given two days earlier but this resignation was not capable of being unilaterally withdrawn as it was not given in the heat of the moment and even if it was, it was not withdrawn sufficiently promptly.[114]
The Respondent submitted that the email sent by the Applicant on 17 January 2024 with the subject ‘I just want to improve’ contained an inaccuracy in that the Applicant stated ‘16 January … Despite constantly advising [Mr Kater] I did not want to resign, I have resigned’.[115] The Respondent submitted that as to the assertion that the Applicant was ‘constantly advising’ Mr Kater on 16 January 2024 that he did not want to resign, there is no evidence of this occurring.[116]
Consideration – s.386(1)(a) – was the Applicant’s employment terminated on the Respondent’s initiative?
Was there an ostensible resignation?
The Applicant emailed Mr Kater on 12 January 2024, whilst he was on annual leave, raising concerns. Mr Kater gave evidence during the hearing that he had taken three weeks leave and returned to work on Monday 15 January 2024.
The Applicant did not attend site on 15 January 2024 and when Mr Kater enquired about this the Applicant said:
‘I’m alright. Just awaiting some invoices to square off the credit card. A couple of loose ends is all.’[117]
When Mr Kater asked whether there was a reason the Applicant was not on site[118] the Applicant responded stating ‘A few reasons’ and sent a subsequent text message, with reference to the meeting Mr Kater had organised with Mr Gutierrez, ‘You have booked in for Thursday. This is not what was requested.’[119]
After Mr Kater said he responded with a ‘thumbs up’ emoji the Applicant sent a further text message indicating he did not want to meet with Mr Gutierrez, he had issues with Jeff and unless they were addressed it would be difficult for him to continue. When Mr Kater responded indicating that the meeting would be to discuss his enquiry and asking whether he would be on site the following day the Applicant sent seven successive text messages stating:
‘That’s disappointing’;
‘We should discuss exit strategy’;
‘I would not like to return, BlueScope reward me first my hours of extended dedication, pay me till the 9/2 fortnightly as normal, so as not to upset my wife and I need some time for the knee to heal, prior to pre employment medicals’;
‘I will virtually meet with Jesse K to provide handover’;
‘Credit card is in office, keys, sim and laptop returned to BlueScope prior to end of this week’;
‘I can send email advising team, issues outside of work have forced unexpected step and thank BlueScope for support’; and
‘Happy to do any and all tests/scans to prove knee injury is not fake.[120]
While the term ‘resignation’ was not specifically used the above text messages indicate, in response to the question as to whether the Applicant would be on site the following day, that the Applicant would not like to return. The text messages proceeded to suggest arrangements for pay up until a suggested date being 9 February, handover and an exit communication to the Applicant’s team and it also contemplates that the Applicant would need to undergo ‘pre employment medicals’, contemplating the commencement of a new job. On the face of the evidence, I find that there was an ostensible resignation by the Applicant.
In Birrell v Australian National Airlines Commission,[121] Gray J found that the authorities supported the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible and proceeded to say:
“…In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice period could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.”
Gray J did however consider the decision in Martin v Yeoman Aggregates Ltd[122] and contemplated that words uttered in the heat of the moment may be capable of withdrawal where those words are retracted swiftly.
Further, as noted above, the Full Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[123] said that there may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. The Full Bench said that if, in this situation, the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
Was the resignation made ‘in the heat of the moment’?
As noted above, the Applicant appears to submit his resignation was made ‘in the heat of the moment’.
It is apparent that the Applicant experienced issues that were a cause of frustration for him during the course of his employment and I have summarised some of these earlier in this decision. The Applicant indicates that among these issues were delays in managers actioning matters or providing feedback. The Applicant’s frustrations appear to have been compounded when the Applicant injured his knee on 11 January 2024, and following an interaction he had on 12 January 2024 with Mr Moore in which Mr Moore appears to have raised concerns about the Applicant’s approach to the painting of the administration building and leadership style.[124] I accept the Applicant’s evidence that he had worked through the night painting on 11 January 2024 and it seems likely that the Applicant considered that in doing so he was showing his commitment to his work and getting the painting finished. However the Applicant injured himself in the process and Mr Kater’s account of his conversation with Mr Moore on 15 January 2024 suggests that Mr Moore was concerned about the Applicant’s judgement in relation to the incident in and in continuing to paint once it happened. The Applicant said that following this conversation he felt defeated, sick and did not sleep well over the next few days.[125]
The Applicant’s frustrations appear to have led to the Applicant sending an email to Mr Kater on 12 January in which he said, among other things:
‘I believe the time has come for full transperancy [sic]. To date I have spared this out of respect, whilst remaining tight lipped in response to the varying theories bandied around about my Leadership style, Control and Influence.
I would request you not to spare my feelings. I would like to understand all of my Weaknesses and Opportunitites (sic).
Please consider a preferred conclusion to the matter. If it’s not working, it’s not working.’
While this is predominantly a request for feedback, it is apparent that the Applicant was unhappy about how he felt he was perceived and was seeking an outcome.
I accept that the Applicant may have been working at home on account of his injury however Mr Kater had been on leave for three weeks and was likely unaware of this when he returned to site on 15 January and asked the Applicant why he was not on site. Peculiarly, the Applicant did not state that he was working from home on account of his knee injury or that this had been arranged with Mr Ghamadi. Instead, he stated ‘a few reasons’, indicated that he had no interest in meeting with human resources and proceeded to state:
‘…There are some misconceptions that I believe need to be sorted out with Jeff. These misconceptions have let rise to a number of issues that needn’t be prevalent. We are at a precarious point where I feel unless these are addressed it will be difficult to continue in this manner. Extremely aware I am making a Rod for own back here, I am still committed to seeing this through. The number of outcomes from here which had a positive outcome for me are extremely limited, however, if you know anything about me, you know I am not willing to drop this now.’[126]
When Mr Kater responded stating that the meeting was designed to discuss the Applicant’s enquiry, asking the Applicant whether he would be on site the following day and seeking an update on the progress and plan for the office update, the Applicant sent the Resignation Texts which I have found amount to an ostensible resignation.
The Applicant’s own evidence was that when Mr Kater invited him to a meeting with human resources the Applicant formed the opinion that he was going to be reprimanded. In submitting that he resigned in the ‘heat of the moment’ the Applicant submits that he had raised specific complaints and when it appeared the matter was heading down a similar path to complaints he raised previously, the manner of messaging changed significantly and shows the Applicant was in a state of ‘emotional stress or mental confusion’.
It is apparent that there had been a build up of frustrations for the Applicant during the course of his employment. It seems likely that the Applicant’s perception that he was going to be reprimanded combined with frustration that his concerns were not going to be resolved motivated the Applicant to send the Resignation Texts. The Respondent submitted that the content of the Applicant’s messages demonstrate that the Applicant had carefully considered his resignation and the next steps that need to be followed once the employment relationship ended and if the Applicant was not of sound mind, his resignation would not have demonstrated consideration of issues like a handover or communications with staff.[127] However the Resignation Texts were comprised of seven texts sent in quick succession and were preceded by an earlier text that day in which he indicated that there were ‘misconceptions’ that he believed needed to ‘sorted out’ with Mr Moore. While the Applicant indicted in the text that unless his issues were addressed it would be ‘difficult to continue’ in the manner that he was, he also indicated he was ‘committed to seeing this through’ which is likely intended as a reference to his employment. There is no indication in that text message that the Applicant was seeking to resign in the text sent immediately prior to the Resignation Texts.
During the hearing the Applicant provided his perspective in relation to the text exchange and submitted that he was having a discussion with a manager, he believed he was not getting anywhere, was disappointed with the way the discussion was going and tried to ‘force the argument’ by putting up an ‘empty threat’ and ‘perhaps mistakenly overstated [his] importance to the business or need to keep [him]’. I accept that this was the case and that after becoming frustrated that Mr Kater was not dealing with his concerns, he sent the Resignation Texts in the ‘heat of the moment’ in hope of forcing an outcome but did not actually intend to resign.
The Applicant said he was disappointed that there was no communication back for five hours and another 11 hours lapsed before he received the next communication which was the communication accepting his resignation. It is apparent to me that the Applicant did not believe the Respondent would actually take his resignation to be a resignation and was instead hopeful of a different resolution and when it appeared that Mr Kater had accepted the Resignation Texts as his resignation he acted quickly to withdraw the resignation by indicating it would have to ‘go on the back burner’. If this did not make it explicitly clear that he did not wish to resign, the subsequent texts in which he states he ‘did not resign’ made it abundantly clear.
In summary, I find that the ostensible resignation on 15 January 2024 resulted from the Applicant’s frustration arising from his perception that there would not be a resolution to his concerns about Mr Moore and he was to be reprimanded and that it was made ‘in the heat of the moment’ in the sense contemplated in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli.[128] Rather than accepting the resignation on the morning of 16 January 2024 the Respondent should have allowed a reasonable period of time to elapse before discussing the text message exchange with the Applicant and seeking confirmation of his intention to resign. I find that the Respondent unreasonably accepted and acted on the Applicant’s ineffectual resignation on 16 January, thus terminating the Applicant’s employment at the initiative of the employer. Accordingly, I find that the Applicant was dismissed for the purposes of s.386(1)(a) of the Act.
In these circumstances I find that the Applicant was dismissed. The Respondent’s jurisdictional objection is therefore dismissed.
COMMISSIONER
Appearances:
Mr U Riaz on his own behalf.
Mr M Watts of Counsel instructed by Kingston Reid on behalf of the Respondent.
Hearing details:
2024.
Sydney.
May 6.
[1] [2024] FWC 1163.
[2] Application at 1.2 at questions 1.2 and 1.3.
[3] Application at question 3.1.
[4] Applicant’s email to the Commission dated 16 April 2024.
[5] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.2.
[6] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.2.
[7] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.2.
[8] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.2.
[9] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.2.
[10] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.2.
[11] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.3.
[12] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.3.
[13] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.3.
[14] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 1.2.
[15] Respondent’s Outline of Submissions: Jurisdictional objection – no dismissal at para 2.4.
[16] Application at question 1.1, Witness Statement of Jesse Kater at [4], email from Applicant to the Commission dated 26 April 2024.
[17] Witness Statement of Jesse Kater at [4].
[18] Applicant’s email to the Commission dated 26 April 2024.
[19] Applicant’s email to the Commission dated 26 April 2024.
[20] Applicant’s Witness Statement, email from Mathew Rees to Chollora Logistics, subject ‘CH – DEMATIC (K&S Depot) – Delivery cancellation CN03824’, dated 6 July 2023; email from Rusell Wade to Mathew Rees and Chullora Logistics, subject ‘CH – DEMATIC (K&S Depot) – Delivery cancellation CN03824’, dated 6 July 2023; email from Russell Wade to Aasil Alam and the Applicant, subject ‘CH – DEMATIC (K&S Depot) – Delivery cancellation CN03824’, dated 6 July 2023; email from the Applicant to Mathew Rees and Aasil Alam, subject ‘CH – DEMATIC (K&S Depot) – Delivery cancellation CN03824’, dated 6 July 2023; email from Russell Wade to Chris Lake, subject ‘Southern Bankstown’, dated 10 July 2023; email from Peter Frame to the Applicant, subject Southern Bankstown’, dated 10 July 2023; Microsoft Teams meeting invitation sent from the Applicant to Rikita Ramaswamy, subject ‘CS & OPs Collab’, dated 20 July 2023; email from the Applicant to Akshata Ojha and Aasil Alam, subject ‘Southern Orders’, dated 21 July 2023; email from Aasil Alam to the Applicant and Ashkata Ojha, subject ‘Southern Orders’, dated 21 July 2023; email from the Applicant to Ashkata Ojha, subject ‘Southern Orders’, dated 21 July 2023; email from the Applicant to Ashkata Ojha, subject ‘Southern Orders’, dated 26 July 2023; email from Ritika Ramaswamy to the Applicant and oother recipients, subject ‘Southern processing out of Chullora’ dated 3 August 2023email from Garry Douglas to email from the Applicant to Akshata Ojha, subject ‘Southern Bankstown’, dated 3 August 2023; email from the Applicant to Ritika Ramaswamy and Garry Douglas, subject ‘Southern Bankstown’, dated 3 August 2023; email from Ritika Ramaswamy to the Applicant and Garry Douglas, subject ‘Southern Bankstown’ dated 3 August 2023; email from Garry Douglas to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 2 August 2023; email from Ritika Ramaswamy to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 2 August 2023; emails from Alison Wheway to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 2 August 2023; emails from David Gaze to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 2 August 2023; emails from Melanie Queen to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 2 August 2023; emails from Ashkata Ojha to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 2 August 2023; email from the Applicant, subject ‘Southern Bankstown’, dated 3 August 2023; email from the Applicant to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 3 August 2023; emails from Melanie Queen to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 3 August 2023; email from Ashkata Ojha to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 3 August 2023; email from Alison Wheway to multiple recipients, subject ‘Southerns only accepting priorities?’, dated 3 August 2023.
[21] Applicant’s email to the Commission dated 26 April 2024, emails from Stephanie Bruseker to the Applicant, subject ‘Building onsite capability at Chullora’, dated 21 August 2023; email from the Applicant to Stephanie Bruseker, subject ‘Building onsite capability at Chullora’, dated 21 August 2023; email from Flora Zhu to the Applicant, subject ‘BlueScope Chullora Physio Service onsite’, dated 22 November 2023; email from the Applicant to Jason McCallum, subject ‘BlueScope Chullora Physio Service onsite’, dated 22 November 2023; email from Jason McCallum to the Applicant, subject ‘BlueScope Chullora Physio Service onsite’, dated 23 November 2023; emails from the Applicant to Jason McCallum, subject ‘BlueScope Chullora Physio Service onsite’, dated 12 December 2023; email from Jason McCallum to the Applicant, subject ‘BlueScope Chullora Physio Service onsite’, dated 12 December 2023; email from the Applicant to Mahi Singh, subject ‘BlueScope Chullora Physio Service onsite’, dated 21 December 2023; email from Mahi Singh to the Applicant, subject ‘BlueScope Chullora Physio Service onsite’, dated 21 December 2023; emails from Billy Vicoroski to Mahi Singh and the Applicant, subject ‘BlueScope Chullora Physio Service onsite’, dated 22 December 2023; email from the Applicant to Billy Vicoroski and Mahi Singh, subject ‘BlueScope Chullora Physio Service onsite’, dated 22 December 2023; email from the Applicant to Billy Vicoroski and Mahi Singh, subject ‘BlueScope Chullora Physio Service onsite’, dated 9 January 2024; email from Billy Vicoroski to the Applicant and Ahi Singh, BlueScope Chullora Physio Service onsite’, dated 9 January 2024.
[22] Applicant’s email to the Commission dated 26 April 2024, email from Alison Wheway to Jesse Kater, the Applicant and Gonzalo Gutierrez, subject ‘Benefits of WSSC Planner based in Sydney Logistics team’, dated 14 November 2023.
[23] Applicant’s email to the Commission dated 26 April 2024, email from the Applicant to Alison Wheway, Jesse Kater, and Gonzalo Gutierrez, subject ‘Benefits of WSSC Planner based in Sydney Logistics team’, dated 14 November 2023.
[24] Applicant’s email to the Commission dated 26 April 2024, email from Gonzalo Gutierrez to the Applicant, Alison Wheway and Jesse Kater,subject ‘Benefits of WSSC Planner based in Sydney Logistics team’, dated 22 November 2023.
[25] Witness Statement of Jesse Kater at [5].
[26] Witness Statement of Jesse Kater at [6].
[27] Applicant’s email to the Commission dated 26 April 2024.
[28] Applicant’s email to the Commission dated 26 April 2024, Incident Report of Southern Cross Protection dated 11 January 2024.
[29] Applicant’s email to the Commission dated 26 April 2024.
[30] Applicant’s email to the Commission dated 26 April 2024, Certificate of Capacity dated 11 January 2024.
[31] Applicant’s email to the Commission dated 26 April 2024.
[32] Applicant’s email to the Commission dated 26 April 2024.
[33] Applicant’s email to the Commission dated 26 April 2024.
[34] Applicant’s email to the Commission dated 26 April 2024.
[35] Applicant’s email to the Commission dated 26 April 2024.
[36] Applicant’s email to the Commission dated 26 April 2024.
[37] Witness Statement of Jesse Kater, Annexure JK-1
[38] Witness Statement of Jesse Kater at [8].
[39] Witness Statement of Jesse Kater at [8].
[40] Witness Statement of Jesse Kater at [9].
[41] Witness Statement of Jesse Kater at [11], Attachment JK-2.
[42] Witness Statement of Jesse Kater at [12].
[43] Witness Statement of Jesse Kater at [13].
[44] Witness Statement of Jesse Kater at [15].
[45] Witness Statement of Jesse Kater at [15].
[46] Witness Statement of Jesse Kater, Attachment JK-2.
[47] Witness Statement of Jesse Kater, Attachment JK-2.
[48] Witness Statement of Jesse Kater, Attachment JK-2.
[49] Witness Statement of Jesse Kater at [16].
[50] Witness Statement of Jesse Kater, Attachment JK-2.
[51] Witness Statement of Jesse Kater at [16].
[52] Witness Statement of Jesse Kater, Attachment JK-2.
[53] Applicant’s email to the Commission dated 26 April 2024.
[54] Witness Statement of Jesse Kater, Attachment JK-2.
[55] Witness Statement of Jesse Kater at [16].
[56] Witness Statement of Jesse Kater, Attachment JK-2.
[57] Witness Statement of Jesse Kater at [20].
[58] Witness Statement of Jesse Kater at [21].
[59] Witness Statement of Jesse Kater, Attachment JK-2.
[60] Witness Statement of Jesse Kater, Attachment JK-2.
[61] Witness Statement of Jesse Kater at [24].
[62] Witness Statement of Jesse Kater, Attachment JK-2.
[63] Witness Statement of Jesse Kater, Attachment JK-2.
[64] Witness Statement of Jesse Kater at [26].
[65] Applicant’s witness statement, email from Jesse Kater to the Applicant dated 16 January 2024.
[66] Witness Statement of Jesse Kater, Attachment JK-2.
[67] Witness Statement of Jesse Kater at [28].
[68] Witness Statement of Jesse Kater, Attachment JK-2.
[69] Witness Statement of Jesse Kater, Attachment JK-2.
[70] Witness Statement of Jesse Kater, Attachment JK-2.
[71] Witness Statement of Jesse Kater, Attachment JK-2.
[72] Witness Statement of Jesse Kater, Attachment JK-2.
[73] Applicant’s witness statement, email from Applicant to Rebecca Roberts, Tania Archibald and Gerald Cornelius dated 17 January 2024.
[74] Witness Statement of Jesse Kater at [30].
[75] Witness Statement of Jesse Kater, Attachment JK-2.
[76] Witness Statement of Jesse Kater, Attachment JK-2.
[77] Witness Statement of Jesse Kater at [32].
[78] Witness Statement of Jesse Kater at [32].
[79] Witness Statement of Jesse Kater at [36].
[80] Witness Statement of Jesse Kater, Attachment JK-4
[81] Letter dated 16 January 2024 attached to Applicant’s Form F8 Application.
[82] Coles Supply Chain Pty v Milford [2020] FCA 152; MacFarlane v AECOM Australian Pty Ltd [2021] FWCFB 1343 at [13].
[83] [2023] FWCFB 101.
[84] [2023] FWCFB 101 at [23].
[85] Coles Supply Chain Pty v Milford [2020] FCA 152; MacFarlane v AECOM Australian Pty Ltd [2021] FWCFB 1343 at [13].
[86] [2017] FWCFB 3941.
[87] [2017] FWCFB 3941 at [35].
[88] [2017] FWCFB 3941 at [35].
[89] Applicant’s closing submissions dated 10 May 2024.
[90] [2023] FWC 1891.
[91] [2017] FWCFB 3941.
[92] Respondent’s closing submissions dated 16 May 2024 at [7].
[93] Respondent’s closing submissions dated 16 May 2024 at [9].
[94] Respondent’s closing submissions dated 16 May 2024 at [9].
[95] Respondent’s closing submissions dated 16 May 2024 at [11].
[96] Respondent’s closing submissions dated 16 May 2024 at [12] – [13].
[97] Respondent’s closing submissions dated 16 May 2024 at [13].
[98] Respondent’s closing submissions dated 16 May 2024 at [16] – [17].
[99] Respondent’s closing submissions dated 16 May 2024 at [18].
[100] Respondent’s closing submissions dated 16 May 2024 at [19].
[101] Respondent’s closing submissions dated 16 May 2024 at [20].
[102] Respondent’s closing submissions dated 16 May 2024 at [20].
[103] Respondent’s closing submissions dated 16 May 2024 at [21].
[104] Respondent’s closing submissions dated 16 May 2024 at [21].
[105] Respondent’s closing submissions dated 16 May 2024 at [26].
[106] Respondent’s closing submissions dated 16 May 2024 at [27].
[107] Respondent’s closing submissions dated 16 May 2024 at [27].
[108] Respondent’s closing submissions dated 16 May 2024 at [28].
[109] Respondent’s closing submissions dated 16 May 2024 at [28].
[110] Respondent’s closing submissions dated 16 May 2024 at [29].
[111] Respondent’s closing submissions dated 16 May 2024 at [29].
[112] Respondent’s closing submissions dated 16 May 2024 at [30] – [31].
[113] Respondent’s closing submissions dated 16 May 2024 at [32].
[114] Respondent’s closing submissions dated 16 May 2024 at [39].
[115] Respondent’s closing submissions dated 16 May 2024 at [40].
[116] Respondent’s closing submissions dated 16 May 2024 at [41].
[117] Witness Statement of Jesse Kater, Attachment JK-2.
[118] Witness Statement of Jesse Kater, Attachment JK-2.
[119] Witness Statement of Jesse Kater, Attachment JK-2.
[120] Witness Statement of Jesse Kater, Attachment JK-2.
[121] [1984] FCA 378.
[122] (1983) ICR 314.
[123] [2017] FWCFB 3941.
[124] Applicant’s email to the Commission dated 26 April 2024.
[125] Applicant’s email to the Commission dated 26 April 2024.
[126] Witness Statement of Jesse Kater, Attachment JK-2.
[127] Respondent’s closing submissions dated 16 May 2024 at [16] – [17].
[128] [2017] FWCFB 3941 at [47].
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