Fair Work Act 2009

s.394 - Unfair dismissal

Termination of employment - jurisdiction - resignation.

[1] This decision concerns an application by Mr David Blackham (Mr Blackham or the Applicant) made under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The Respondent is Parker Ezi-Hose Pty Ltd (Ezi-Hose or the Respondent).

[2] At the hearing Mr Blackham gave evidence on his own behalf. For Ezi-Hose evidence was given by Mr Trent Jemmeson (Mr Jemmeson), the Mining Services Manager, Ms Deniz Baloglu (Ms Baloglu), a Human Resources Business Partner and Mr Michael Galante (Mr Galante), a Mine Technician.

[3] Mr Blackham was employed with Ezi-Hose as a Hose Technician. He commenced employment in May 2017.

[4] Mr Blackham sent an email to Ezi-Hose which was received on 21 January 2018 the subject of which was 'Letter of Resignation'.

[5] The email of two pages contained a range of complaints and criticisms by Mr Blackham and concluded by saying,

"I chose to leave because I can't stay in this environment any longer."

[6] Mr Blackham in his evidence says that he experienced bullying, harassment and inappropriate or accusatory behaviour by work colleagues and management over the nine-month period he was employed. He says he witnessed staff and supervisors behaving outside the Ezi-Hose code of conduct without any ramification or consequences.

[7] Mr Blackham says he made numerous efforts to try and resolve the issues and also escalated these issues to management. His evidence was there was a lack of action by management to respond to his concerns and the issues were causing him distress.

[8] He has experienced loss of tools and clothing, poor working conditions and an unreasonable workload.

[9] His evidence was he had no choice but to leave and take another job.

[10] Mr Blackham's evidence included a letter of offer for another position with a different employer which was dated 5 January 2018. This is the position he ultimately accepted.

[11] Mr Blackham's evidence includes a log of what he refers to as bullying, harassment and inappropriate behaviour that he says occurred during his nine months of employment.

[12] In June 2017 he complained about the tap water and says it took three to four months for a water cooler to be provided.

[13] He complains about another employee who told him he wasn't allowed to use a particular self-contained accommodation unit. He mentioned this to his supervisor who said that he should just use it but he chose not to. Mr Blackham says this employee's bad behaviour was just accepted by the supervisor.

[14] A supervisor showed him an email from another employee of screenshots of a former employee's Facebook comments complaining about the Respondent.

[15] He requested Ezi-Hose provide him with more gloves and was told to take them from the mine sites.

[16] Ezi-Hose's Mining Services Manager Mr Jemmeson sent an email to Mr Blackham and another employee accusing them of leaving cigarette butts at the Newman site. Mr Blackham says he does not smoke.

[17] In August at a shutdown at the West Angelas site the supervisor called him on his mobile phone and accused him in a verbally aggressive manner of not being at the pre-start meeting that morning. Mr Blackham told him that he was there and the supervisor realised he had made a mistake.

[18] Later the same supervisor spoke to him about other employees working on the shutdown and was rude about them.

[19] An employee told Mr Blackham that the supervisor at West Angelas had said he didn't like Mr Blackham.

[20] This supervisor asked him if he had done a take five safety check in front of a superintendent. Mr Blackham told him that he had and the supervisor was quite surprised.

[21] Mr Blackham had to break a lock on a toolbox because there was no key. He was advised by a supervisor that in future he should call him before he did so as the locks were expensive. Mr Blackham mentioned this to the supervisor a few days later and the supervisor, Mr Blackham says, yelled at him for doing it in front of another employee.

[22] Mr Blackham queried how the supervisor was recording pre-starts and the supervisor got angry that Mr Blackham was questioning him.

[23] Mr Blackhan had been rung on the phone during a day when he would normally be sleeping because he had been on night shift.

[24] Mr Blackham says his supervisor was angry because he had emailed Mr Jemmeson to try to get a change to his roster because he didn't want to be away for 17 - 19 days.

[25] Somebody sabotaged the door lock on Mr Blackham's donga so he couldn't get into his room.

[26] He had to ring his supervisor at 6.00 a.m. on a weekday regarding an urgent matter but the supervisor got very angry and sent him a message not to call him at that time.

[27] Ezi-Hose changed the airport pickup and drop-off plans every swing which he found unsettling.

[28] Graffiti was drawn on the work ute which Mr Blackham used with another employee.

[29] Mr Blackham's statement was that on 27 December 2017 he advised Mr Jemmeson via a text message that he had received a verbal job offer and would likely be leaving Ezi-Hose soon. Mr Blackham says he explained how he was disappointed by the Respondent's behaviour towards their staff.

[30] He had requested a different roster for many months and Mr Jemmeson managed to do this and give him a 2 and 1 roster which he appreciated. However he was allocated, he says, to the worst site West Angelas but his statement was that he didn't mind at that point.

[31] Mr Blackham's statement was,

"The breaking point for me came when I was allocated a swing on my own and was expected to the do the work of 3 employees. At that point I had also found another job so I resigned."[1] (Underlining added)

[32] Mr Blackham's materials include text messages between himself and a number of other Ezi-Hose employees, relevantly these show that on 26 December 2017 he sent a text to Mr Jemmeson as follows,

"Hi Trent I just want to give you a heads up. I have been verbally offered a new job subject to medical which won't be a problem. I will wait for the official offer and keep you posted..."

[33] On 27 December 2017 he sent a text message as follows,

"No not this one mate this is for a boilermaker. I will be honest tho, I am interested in a role for PWR I sent my cv and have nothing back, not even sure I will. I made a decision to leave after Stu jumped the gun again, I have applied for lots of jobs. Its things like 45 and hour for a useless lazy David Unwin... Its not just stu, it's parker/ezi hose in general. Such a disappointing company to work for. They have a poor understanding of their staff and a lack of respect with their condescending emails. Its really sad that we all feel the same. So in answer about PWR, no its not. I will take whatever comes j27th ust to move on." (sic)[2]

[34] Consistent with this the evidence of Mr Jemmeson was that on 26 December 2017 the Applicant had advised him that he had verbally been offered a job subject to the medical and was waiting for the official letter.

[35] His evidence was that on 9 January 2018 Mr Blackham cancelled his flights back to Perth with Ezi-Hose saying his partner surprised him and he would be remaining to show her the sights in Newman where he was working. Mr Jemmeson's evidence was this was a false statement as Mr Blackham had by then already started with his new employer, without advising Ezi-Hose, and while he was still an employee of Ezi-Hose.

[36] Mr Jemmeson rejects the allegations of bullying and refers to an email dated 20 September 2017 where Mr Blackham tells him that he really likes his job but would like him to consider the possibility of a shorter swing such as a 2 on 2 off to assist him to cover his personal commitments at home.

[37] His evidence was that Mr Blackham knew what he had to do in cases of bullying as the Ezi-Hose code of conduct was communicated to him. He had not received any complaints about bullying from other employees either.

[38] Mr Jemmeson disputes that the Applicant was forced to work extreme hours as he claims. He worked Monday to Saturday 6.00 a.m. to 5.00 p.m. on a cycle of 19 days on and 9 days off.

[39] Mr Jemmeson points to a series of emails dated 12 December 2017 between Mr Stu Smith (Mr Smith), the Site Supervisor for Ezi-Hose and Mr Blackham regarding a criticism by Mr Smith of Mr Blackham for signing off a job as completed when it had not even been started as an example of Mr Blackham causing an issue on site and his supervisor handling it in a positive and professional manner.

[40] Mr Smith's communication whilst critical of Mr Blackham was polite and reasonable in its tone.

[41] Mr Blackham's response defending his actions was impolite and rude in reference to other employees. Mr Smith in response replied to Mr Blackham explaining that he needed to look into the situation when asked by the client and that when he comes back they will sit down and talk face-to-face and work through any issues so that at the end they have a clear positive plan and direction to move in.

[42] Mr Smith's email was entirely reasonable but Mr Blackham's was not.

[43] Mr Jemmeson says throughout Mr Blackham's employment he had a positive and supportive attitude towards him. Even on one occasion where the Applicant missed his flight, although the employee would normally then have to pay for this, Mr Jemmeson paid for Mr Blackham's flights and there was no deduction regarding this payment by Ezi-Hose.

[44] The evidence of Ms Baloglu was that Mr Blackham was not forced to work extreme hours as he claimed. Her evidence also was that HR never received any complaints from him during his employment regarding his hours.

[45] The hours Mr Blackham worked were the same hours other employees worked.

[46] Her evidence was that Mr Blackham was aware what to do in cases of any bullying or harassment and he never reported any incidents to HR or senior management during his employment. He never called Ezi-Hose's integrity line to report any incidents.

[47] Her evidence was that Mr Blackham's attitude was very negative towards the Respondent in his communications not the other way round.

[48] Mr Galante's evidence was that Mr Blackham had a negative attitude towards others. He was always interested in what other people were doing rather than focusing on his own job.

[49] Mr Galante witnessed a site supervisor trying to reach Mr Blackham regarding work and later Mr Blackham told Mr Galante that he would not answer the supervisor's phone calls, emails or texts. Mr Blackham totally ignored the supervisor.

[50] Mr Blackham never mentioned anything to do with bullying to Mr Galante throughout his employment. Mr Blackham only said he didn't get along with Mr Seaton and Mr Smith.

[51] Mr Galante has worked for Ezi-Hose for 16 months and has not witnessed any bullying or heard of any other employees complaining about bullying.

[52] Section 386 of the Act sets out the meaning of 'dismissed' as follows,

(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.

(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

(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

(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."

[53] Section 386(1)(b) of the Act provides that if an employee has resigned but was forced to do so because of conduct, or a course of conduct, engaged in by the employer then that employee has been dismissed for the purposes of section 394 of the Act and so notwithstanding the fact they resigned they are able to make an application for an unfair dismissal remedy.

[54] A Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli[3] summarised the test to be applied in cases where an applicant asserts their resignation was 'forced' as follows,

"[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."

[55] In this case the onus is on Mr Blackham to prove that he did not resign voluntarily but that Ezi-Hose by its conduct forced his resignation. There must be evidence that Ezi-Hose took action with the intention to bring the relationship to an end or that would have that probable result.

[56] There is no doubt Mr Blackham was dissatisfied with his employment for a number of reasons. He was critical of his supervisors and managers, their actions and sometimes their inaction. He was critical of other employees' behaviour towards him and critical of other employees being paid more than him. Mr Blackham was unhappy with the working hours and roster and had requested this be changed. He was also critical of the workload at times.

[57] I accept that some of the reasons for Mr Blackham's dissatisfaction amounted to conduct of the employer.

[58] However many of the reasons for his dissatisfaction including the actions and behaviour of other employees toward him, some of the interactions with his supervisors and managers, the particular roster that applied to him and others and the rate of pay another employee received cannot properly be said to be "...conduct, or a course of conduct, engaged in by his or her employer."

Ending the employment the intended or probable result of that conduct?

[59] There is no evidence to support a finding that Ezi-Hose engaged in any of the conduct with the intention of bringing Mr Blackham's employment to an end nor does the evidence considered objectively support a finding that this was the probable result of Ezi-Hose's conduct.

[60] Being generally dissatisfied with your employer, even for good reason, would not usually equate to being forced to resign.

[61] Mr Blackham's statement says that when his roster was changed he appreciated this change and didn't mind being moved to the West Angelas site. He said the breaking point was when he was allocated a swing on his own and was expected to do the work of three employees. His statement was that at this point he had also found another job so he resigned.

[62] Mr Blackham's text message of 27 December 2017 provides a variant of this explanation,

"I made a decision to leave after Stu jumped the gun again, I have applied for lots of jobs. Its things like 45 and hour for a useless lazy David Unwin... It's not just stu, its parker/ezi hose in general. Such a disappointing company to work for..." (sic)

[63] This shows that prior to 27 December 2017 he had decided he would leave Ezi-Hose and in fact had already "...applied for lots of jobs". Whilst he was dissatisfied he was content to remain working at Ezi-Hose while he applied to find another job. Around 26 December 2017 he was verbally offered a new job by PWR Pty Ltd. After this he continued to work at Ezi-Hose and on 5 January 2018 he received a formal letter of offer from PWR Pty Ltd. After this he still chose to continue working at Ezi-Hose until he resigned on a date of his choosing, 21 January 2018.

[64] It is clear that when Mr Blackham resigned on 21 January 2018 he did so voluntarily. He chose to continue working at Ezi-Hose notwithstanding the events that had caused his dissatisfaction and only resigned after he had accepted another job and was starting that job.

[65] Mr Blackham did not resign in January 2018 because he was forced to do so because of conduct or a course of conduct engaged in by his employer. The fact Mr Blackham was dissatisfied with his experience at Ezi-Hose and this caused him to look for employment elsewhere is not the same as him being forced to resign when he did. What he had experienced at Ezi-Hose was not so intolerable that he had no real choice but to resign.

[66] Mr Blackham made a decision to leave his employment many weeks before he resigned. He made the choice to continue working at Ezi-Hose until another job was offered to him in writing and then waited a further two weeks after this to tender his resignation.

[67] Mr Blackham was not dismissed within the meaning of s.386 (1)(b) of the Act and so is not able to make this application for an unfair dismissal remedy.

[68] As a consequence this application will be dismissed and an Order [PR607111] to that effect will be issued in conjunction with this decision.

[1] Exhibit A2, Attachment 2 at paragraph 24.

[3] [2017] FWCFB 3941.

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