s.394 - Application for unfair dismissal remedy

Application for an unfair dismissal remedy - application dismissed.

• [1] On 27 July 2024, Mr Leon Slobe (the Applicant or Slobe) made an application to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an order granting a remedy, alleging that he had been unfairly dismissed from his employment with Bella Build & Design Pty Ltd (the Respondent or Bella).

• [2] Bella objects to the application on the basis that Mr Slobe was not dismissed.

• [3] Before considering the merits of the application, the Commission must be satisfied that the Applicant has been dismissed.

• [4] In this matter, Bella asserts that no dismissal at its initiative has taken place, rather Mr Slobe resigned from his employment.

• [5] A threshold issue to be determined is whether the Applicant has been dismissed from their employment.

• [6] Section 386(1) of the Act provides that the Applicant has been dismissed if:

(a) the Applicant's employment with the Respondent has been terminated on the Respondent's initiative; or

(b) the Applicant has resigned from their employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Respondent.

• [7] This definition contains two elements. The first concerns termination on the employer's initiative and the second, resignation in circumstances where the person was forced to do so because of conduct or a course of conduct.

• [8] The two tests were explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli.[1]

• [9] Mr Slobe contends that the employment relationship was repudiated at the initiative of Bella when it removed his fuel card, worth around $60 per week, without any consultation. Furthermore, Mr Slobe submits that Bella sought to repudiate the contract of employment at their initiative by suggesting he look for another job and sending him links to apply for alternative positions. Mr Slobe contends that this conduct constituted a dismissal at the initiative of Bella consistent with s386(1)(a) of the Act.

• [10] Mr Slobe submits in the alternative that he had no option but to resign as Bella engaged in a course of conduct that became intolerable, making it clear Bella no longer wanted Mr Slobe to remain as an employee.

• [11] Mr Slobe submitted that he was bullied by Mr Tristan Burton (Burton) Director of Bella for an extended period, Mr Slobe suggested that the conduct of Mr Burton commenced after Mr Slobe had raised concerns with the Head Office of Bella over some accounts for work which was being completed at Mr Burton's private residence.

• [12] Mr Slobe outlined that from April onwards Mr Burton made the following remarks:

• Made negative remarks about Mr Slobe's work.
• Directed Mr Slobe to no longer attend the weekly construction meetings that Mr Slobe had attended previously.
• Emails to Mr Slobe pushing Mr Slobe to apply for other work.
• Putting Mr Slobe on a Performance Improvement Plan (PIP) in the position of office and accounts administrator, where the focus of the PIP was around implementation of the Sitebook program which was not part of Mr Slobe's position.
• Mr Burton asked Ms Amanda Rogers to follow up on all Mr Slobe's work when no one else in the office was under scrutiny.
• Mr Burton yelled at Mr Slobe in front of other employees in the office because a trade person had parked in Mr Burton's parking space, telling Mr Slobe that he had to ensure no one parked in Mr Burton's parking space.

• Mr Slobe requested leave in lieu of overtime to attend a relative's funeral and this was declined, causing Mr Slobe to take leave without pay.

• [13] Mr Slobe outlined that this conduct had an adverse impact on his physical and mental health, which resulted in him having no alternative but to resign from his employment with Bella.

• [14] Bella submitted that Mr Slobe was placed on a PIP in April of 2024, as his performance was not to the required standard and Bella had concerns over his ability to fulfil the requirements of his position. Bella submitted that on 2 July 2024, Mr Slobe was issued with a written warning as his performance had not improved during the PIP process. Bella submitted that Mr Slobe was ill with COVID-19 from 2 July 2024 until 8 July 2024 when he resigned from his employment. Bella confirmed that they offered Mr Slobe the opportunity to withdraw his resignation whilst they investigated the concerns outlined in Mr Slobe's resignation letter. That being the issuance of a written warning and that Mr Slobe had been encouraged to find alternative employment. Mr Slobe rejected this offer and as a result, Bella accepted his resignation on 10 July 2024.

• [15] It was the evidence of Mr Burton, that he was initially impressed with the performance of Mr Slobe and as a result he was motivated to keep Mr Slobe employed with the business when Mr Slobe had another opportunity in December 2023. Mr Burton's evidence was that after commencing the revised position of Construction Administrator in April 2024, he became concerned about the performance and suitability of Mr Slobe for that position. Mr Burton provided examples of his performance concerns including the inability of Mr Slobe to project manage the introduction of "site book" an online site safety management tool, project managing the office renovation, not completing tasks to a satisfactory standard, failure to maintain the office, and a lack of interest in the role.

• [16] Mr Burton outlined that Mr Slobe was assisted by him, by providing information that could assist in progressing the projects, but did not see any notable progress being made. Mr Burton states that Mr Slobe was provided with support and lines of communication to set him up for success.

• [17] Mr Slobe was allocated a vandalism rectification project to complete within a two-week period for Bella's client. Mr Burton states that, after two weeks, Mr Slobe informed him that the project was complete and that he had attended the site. Thereafter, Mr Burton was contacted by the client who informed him the job had not been completed properly. Mr Burton then attended the site and agreed that the condition was not satisfactory. Mr Burton asserts that he later found out Mr Slobe never attended the site or sought supervisor assistance.

• [18] Following this, Mr Burton commenced informal discussions with Mr Slobe regarding his underperformance and apparent lack of interest in his role. During these discussions, Mr Burton states Mr Slobe informed him he was looking for other work and attending interviews, to which Mr Burton then offered his support.

• [19] After the incidents above, Mr Burton asserts that Mr Slobe's performance continued to decline. Mr Burton notes tasks within Mr Slobe's job description which were not completed and a further client complaint.

• [20] Mr Burton outlined that due to the performance of Mr Slobe being inadequate and requiring substantial improvement a PIP process was commenced with the aim of addressing the performance concerns Mr Burton held.

• [21] The parties were not in dispute that Mr Slobe commenced employment initially in September 2023 in the position of Office and Accounts Administrator. Mr Slobe was offered an alternative position elsewhere in December 2023. Following this alternate offer of employment, it was agreed that Mr Slobe was to transition into a position that allowed for him to be involved in estimating work along with a salary increase. This took effect in April 2024.

• [22] Mr Slobe does not contend that his resignation occurred in the heat of the moment. Furthermore, Bella provided Mr Slobe with the opportunity to withdraw his resignation and investigate the allegations made in his letter of resignation. Mr Slobe elected to decline this option. I am satisfied that Mr Slobe did not resign in the heat of the moment.

• [23] Having considered the submissions and evidence of the parties, I have formed the view that Bella, in all probability, was not displeased that Mr Slobe resigned from his employment. However, the question before the Commission is did the conduct amount to conduct that left Mr Slobe with no alternative but to resign from his employment due to the conduct of Bella.

• [24] Mr Slobe contends that Bella repudiated his contract of employment when they removed his fuel card and when Ms Rogers emailed Mr Slobe an opportunity with another business. The parties are in dispute in relation to the entitlement to the use of the fuel card. Mr Slobe submitted it was agreed verbally in December 2023, however, was then not included in his revised contract of employment in April 2024. On the evidence before the Commission, there is no evidence that suggests this was ever a contractual entitlement in writing, therefore I have determined that Bella did not repudiate Mr Slobe's contract of employment.

• [25] I have reviewed the evidence in relation to the Performance Improvement Plan (PIP) and have formed the view that elements of the PIP were unfair to Mr Slobe. From the evidence of Mr Slobe it is clear that the matter in relation to the gear box involved multiple stakeholders and the lack of communication between Mr Burton and Mr Paul Bellardino, another director based in Adelaide, left Mr Slobe in a situation whereby he was left trying to ensure he had the adequate authorisation for the work to be completed. Mr Burton and Mr Bellardino were giving Mr Slobe competing information. The poor communication between management is not something Mr Slobe could reasonably be held responsible for. I have formed the view that the implementation of the site book program suffered from similar communication issues for which Mr Burton was either ignorant or unwilling to listen to. This would have left Mr Slobe in a difficult position; however, I am not satisfied that this situation created an environment whereby there was no alternative for Mr Slobe but to resign.

• [26] There is no substantive evidence that suggests Bella undertook a course of conduct that left Mr Slobe with no alternative but to resign from his employment. I accept the evidence of Mr Burton that there were legitimate concerns around the general performance of Mr Slobe and that his performance needed to improve. The implementation of the PIP does not mean that an employee such as Mr Slobe needs to resign, rather it is a mechanism to provide clear direction to an employee in relation to the areas that need to improve.

• [27] Mr Slobe made a serious allegation that Mr Burton bullied Mr Slobe after Mr Slobe had questioned some invoices in relation to work that was allegedly occurring at Mr Burton's private home. There is no substantive evidence before the Commission that Mr Burton commenced some form of campaign against Mr Slobe in retaliation for raising these concerns. However, as I have found above, Mr Burton had a legitimate reason to be concerned about the performance of Mr Slobe from the feedback received from clients and the general performance concerns the business held in relation to the overall performance of Mr Slobe.

• [28] In relation to the actions of Ms Rogers, Ms Rogers was not Mr Slobe's manager, rather she was the executive assistance to Mr Burton. Ms Rogers did not give evidence before the Commission as to why she sent an email to Mr Slobe in relation to other employment opportunities, however I am not satisfied that this action by Ms Rogers left Mr Slobe with no alternative but to resign.

• [29] I note the comments of the Full Bench in ABB Engineering Construction Pty Ltd v Doumit:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."2 (emphasis added).

• [30] The Full Bench in Pawel v Advanced Precast Pty Ltd provides a helpfully illustrative example of how an employer's conduct may result in a resignation but does not necessarily render the resignation a dismissal at the initiative of the employer:

"Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment."3

• [31] In the circumstances of the matter currently before the Commission, I am not satisfied that Mr Slobe's resignation was a dismissal as contemplated in section 386(1)(b) of the Act. Despite the deficiencies noted above, I am not satisfied that Bella's conduct (or course of conduct) resulted in Mr Slobe having no other option than to resign or that it would have that probable effect.

• [32] Upon assessment of all the evidence before me, in the circumstances of this matter, I am inclined to conclude that Mr Slobe's resignation was voluntary. I accept that Mr Slobe may have struggled with the conflicting messages he received from Mr Burton and Mr Bellardino and in part, the issuing of a PIP, however I do not consider this to be a situation whereby there was no alternative but to resign from his employment with Bella.

• [33] It is my conclusion that Mr Slobe made the understandable decision to seek employment elsewhere as his employment at Bella had turned sour.

• [34] Having concluded that the Mr Slobe was not dismissed by Bella as defined in the Act, Mr Slobe's application for an unfair dismissal remedy is therefore dismissed.

• [35] An Order to that effect has been issued.

[1] [2018] FWC 1074, [34]-[43].

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