s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - application dismissed.

• [1] David Hayblum has made an application under s 365 of the Fair Work Act 2009 (Cth) (Act). The respondent, MSS Security Pty Limited, objects to the application on the basis that it did not dismiss Mr Hayblum, but rather he resigned.

• [2] Mr Hayblum commenced employment with the respondent on 5 July 2019. At the time his employment ceased, Mr Hayblum was performing the role of security manager. Mr Hayblum said this involved managing a team of security guards as well as the staff and contractors on site within the multi tenancy commercial building at which he performed his work. Mr Hayblum contends that 95% of his role included the processing of compliance paperwork and seated at a desk (as opposed to conducting patrols more generally), although he says he never received a position description for the role.

• [3] Mr Hayblum has a neurological condition that affects his leg. He had spinal surgery on 20 February 2025 and between 18 February and 11 March 2025, was absent from work on personal leave. On 13 March 2025, following his return to work, Mr Hayblum was directed by the respondent's business manager to pull out a number of archive boxes that were located on the floor under a L-shaped desk in order to go through them in search of a missing key. Mr Hayblum describes this event as being required to crawl under the desk, bend, and lift boxes. Mr Hayblum refused to perform this task. In his evidence he said he had no objection to lifting the boxes, but his medical restrictions prevented him from bending down to get them.

• [4] Following this event, the respondent requested a certificate of capacity from Mr Hayblum's treating practitioner. The respondent noted that Mr Hayblum had returned to work with a mobility scooter and wearing a moonboot which it says had not been communicated to it. Mr Hayblum was requested not to attend work pending production of a certificate of capacity.

• [5] The certificate of capacity Mr Hayblum provided to the respondent dated 17 March 2025 stated that between 11 March and 3 April 2025, Mr Hayblum could work 8-hours per day but not longer, could do his desk job and could walk short distances within the building. The certificate also stated that Mr Hayblum "can also do other duties, to be advised by his physio." Mr Hayblum's physiotherapist completed a certificate of capacity on 18 March 2025. It relevantly stated that Mr Hayblum could sit, kneel, reach above shoulder, use injured arm/hand and had neck movement. It advised that, with modifications, Mr Hayblum could stand/walk, squat and lift. It stated that Mr Hayblum could not bend "from lower back". It required a "cam boot" to be worn at all times and the use of a mobility scooter as much as possible, with no walking more than 300m.

• [6] There was some discussion between the parties about Mr Hayblum's return to work with a shadow who could assist him with the duties of his role that he could not perform in light of his restrictions. This arrangement did not ultimately proceed in light of the respondent's view that it required a fitness for work assessment to be conducted by his treating practitioner against his work duties.

• [7] On 1 April 2025, while Mr Hayblum remained off work, the respondent provided Mr Hayblum with a letter of allegations. In summary, it was alleged inter alia, that Mr Hayblum had failed to ensure a robust procedure was in place and followed by all staff in relation to the management of security keys. Mr Hayblum contends that the key was lost on 5 March 2025 during the period in which he was on personal leave. On 2 April 2025, Mr Hayblum sent the respondent an email asking procedural question about the letter of allegations and said that he had a number of medical appointments in the coming days:

I have a number of medical appointments in the next few days. If during those appointments my doctors believe that I am fit for work to return to normal duties, would I be returning to site, or would I be stood down pending the investigation?

Furthermore, if I do get certificates stating I am fit for work, would I resume work immediately (if resuming work is on the table) or would it need to be approved by the P & C team?

I fully appreciate the seriousness of these allegations and while I do have a desire to return to work, I also don't want to tie anyone up in extra red tape that would further delay these proceedings.

• [8] On 4 April 2025, Mr Hayblum sent the respondent a "fitness for duty letter" and said in an email, "Please see the certificate of fitness from my surgeon. As stated I am fit to return to work. As I can now drive again I no longer require the use of a mobility scooter." The respondent's General Manager Victoria, Ms Sellman, responded on the same day by advising Mr Hayblum that the respondent needed an assessment from his doctor based on the "full list of duties." Ms Sellman said:

We can forward this request to them today using the details in the certificate. We cannot approve your fitness for duty until we have this assessment as we do not have confirmation that the doctor has considered all relevant duties. I also note that the letter states that you will be able to return to full duties but it does not say from what date this is applicable.

• [9] Ms Sellman sent a further email to Mr Hayblum on 4 April 2025 stating relevantly as follows:

I have attached a copy of the assessment letter that your doctor will need to complete.

Please can you contact them directly to approve them to communicate with me on this matter and provide them with the form attached.

• [10] Attached to the email was a "Fit for Work Assessment" for the position of Security Officer, a role that Mr Hayblum did not hold. Mr Hayblum said that he had requested that a position description for his role of Security Manager be provided. Also on 4 April 2025, Mr Hayblum sent an email to the respondent in response to the letter of allegations, stating:

Now that I am fully mobile I am free to attend an interview regarding the allegations...

• [11] On 5 April 2025, by way of emails sent within minutes of each other, Mr Hayblum provided a response to the letter of allegations and tendered his resignation in writing. The resignation letter stated relevantly as follows:

I am writing to inform you that I am resigning from my employment with MSS Security effective immediately. Given that I am required to give 4 weeks notice, I will conclude my duties on 3rd May 2025.

Please let me know if I am still required to attend the investigation interview scheduled for 7th April 2025.

I acknowledge that I may not be able to work at 500 Bourke st for the remainder of my employment, however I will need to attend site to clear out my lockers and return my locker keys. I am happy to coordinate with James and Cristian to be supervised during this visit.

• [12] Mr Hayblum's position is that he was dismissed within the meaning of s 386(1) of the Act. He says that the cumulative effect of the respondent's conduct, including a failure to pay wages and by creating an unsafe and hostile working environment prevented him from returning to work and pressured him to resign, such that he had no real choice but to resign (s 386(1)(b)). Further, Mr Hayblum gave evidence that the letter of allegations was so ludicrous that he formed the view that the respondent had reached a pre-determined outcome and if he did not resign, he would be dismissed the following week. Mr Hayblum gave evidence as follows:

... I felt that the risk of me being terminated would affect my ability for future job prospects and I was worried that that was going to cause problems for me and for my ability to pay the bills. I was already in financial strife from not having worked...

• [13] Mr Hayblum's evidence is that he resigned to avoid being terminated by the respondent and the risks this would create for his future job prospects. I accept this evidence and find that this was the motivating factor for his resignation. However, Mr Hayblum's subjective conclusion that he would be dismissed by the respondent imminently, such that he wanted to safeguard his future employment prospects, does not engage s 386(1)(b) of the Act. Mr Hayblum's resignation was at his election, with a resignation letter prepared while the investigation was ongoing, delivered on a timeframe of Mr Hayblum's choosing and with the provision of four weeks' notice. The resignation letter was produced simultaneously with Mr Hayblum's response to the allegations, before the respondent had any meaningful opportunity to consider his response and prior to the pre-arranged meeting to discuss the allegations taking place. There is no evidence to support a conclusion that the respondent had pre-determined the investigation outcome, nor that it issued the letter of allegations for unlawful reasons. It follows that I reject the contention that the resignation was forced because of the respondent's conduct in issuing the letter of allegations.

• [14] Nor do I accept that Mr Hayblum's resignation was forced because the respondent prevented him from returning to work and failed to pay his wages. The respondent's position is that Mr Hayblum was on personal leave in connection with his ongoing injury and pending provision of a fitness for work assessment. I accept this is so, noting that Mr Hayblum's Form F8 application also states that he was on sick leave on 14 March 2025. I accept that this period of sick leave was unpaid, as Mr Hayblum had exhausted his paid personal leave entitlement. Accordingly, the respondent did not fail to pay Mr Hayblum's wages, as contended.

• [15] The evidence before the Commission, produced by Mr Hayblum, includes a trail of email correspondence between he and Ms Sellman. Amongst other things, the following matters can be taken from this correspondence:

(a) In an email to Mr Hayblum on 1 April 2025 Ms Sellman noted that Mr Hayblum was "currently unfit for work due to a personal injury."

(b) On 2 April 2025, Mr Hayblum emailed Ms Sellman advising that he had a number of medical appointments in the next few days. He did not quibble with Ms Sellman's statement that he was unfit for work at the time.

(c) Also on 2 April 2025, Mr Hayblum emailed his wife stating, "No point saying I'm fit for work. Will be tied up for weeks".

(d) As earlier noted, on 4 April 2025, Mr Hayblum sent an email to the respondent stating, "Please see the certificate of fitness from my surgeon. As stated I am fit to return to work. As I can now drive again I no longer require the use of a mobility scooter."

(e) Also on 4 April 2025, Mr Hayblum emailed Ms Sellman stating, "Now that I am fully mobile I am free to attend an interview regarding the allegations. Once the interview time is set I will prepare my written response to the allegations for the interview."

(f) On 4 April 2025, Ms Sellman responded to Mr Hayblum's email stating, "Thank you for confirming you are fit to attend the interview despite your ongoing personal injury."

(g) On 5 April 2025, Mr Hayblum tendered his resignation.

• [16] There is no evidence before the Commission demonstrating that Mr Hayblum challenged the respondent's view that he was medically unfit for work pending provision of a fitness for work assessment. On the contrary, Mr Hayblum's correspondence of 2 April 2025 to Ms Sellman supports this position, indicating he had medical appointments in the coming days before subsequently advising he was "now...fully mobile" on 4 April 2025. I reject that the respondent unreasonably prevented Mr Hayblum from returning to work during this period.

• [17] I acknowledge Mr Hayblum's contention that the fitness for work assessment provided by the respondent on 4 April 2025 was for the position of Security Officer, a role that Mr Hayblum did not hold. But rather than address this with the respondent, Mr Hayblum tendered his resignation the following day. The terms of Mr Hayblum's letter are brief but communicate his resignation in unambiguous terms and he has not sought to withdraw it. He makes no reference to the contentions he now advances that his decision was forced by reason of the respondent preventing him from returning to work, failing to pay his wages and providing an incorrect fitness for work assessment. For the reasons given, I am satisfied that these matters did not compel his resignation for the purposes of s 386(1)(b) of the Act.

• [18] It follows that I reject Mr Hayblum's alternative contention that the respondent repudiated his employment agreement, and the termination of the employment relationship was therefore at the respondent's initiative (s 386(1)(a)).

• [19] I find that Mr Hayblum's resignation on 5 April 2025 was voluntary and legally effective. I am satisfied, on the evidence, that Mr Hayblum was not dismissed. This being so, Mr Hayblum was not eligible to make an application under s 365 of the Act, and the application must be dismissed on this basis.

• [20] Mr Hayblum's application is dismissed.

J. Zhou, of Counsel, instructed by Legal Enablers, for the applicant.

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