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[2017] FWC 1730
Fair Work Commission
2017-04-05
Commissioner Cambridge
Original judgment source is linked above.
s.394 - Application for unfair dismissal remedy
Unfair dismissal - jurisdictional objection - s. 386 - employment not terminated on initiative of employer - application dismissed.
[1] This Decision involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Stephen Geoffrey Fitzgerald (the applicant). The respondent employer is Woolworths Limited (the employer).
[2] The application was filed at Sydney on 5 December 2016, and the employer filed a response on 29 December 2016. The application indicated that the date that the applicant was allegedly constructively dismissed was 27 November 2016. Consequently, the application was made within the 21 day time limit prescribed by subsection 394 (2) of the Act.
[3] Conciliation of the claim was unsuccessful, and the matter proceeded to arbitration in a Hearing held on 3 March 2017. The Hearing involved the taking of evidence in respect to both the jurisdictional objection raised by the employer, which involved the question of whether the applicant was a dismissed employee, and also the substantive merits of the application.
[4] At the Hearing, the applicant represented himself. The applicant gave evidence as the only witness who was called to provide evidence in support of the claim. However, the Commission permitted two further witness statements which had been made on behalf of the applicant, to be introduced into evidence without the deponents of those statements being called as witnesses. The employer was represented by its Employment Relations Specialist, Ms N Barclay. Ms Barclay introduced evidence from four witnesses each of whom was cross-examined by the applicant.
[5] The applicant commenced employment with the employer on 14 June 2008. The applicant was engaged as a Team Support member working at the Woolworths Supermarket store located in the Sydney suburb of Avalon. The applicant worked on a part-time basis which involved engagement for 25 hours per week. The applicant's regular working hours involved five shifts of five hours duration each, Saturday to Wednesday evenings, from 5:30 pm to 10:30 pm. The work that the applicant performed was principally connected with stock movement via what was referred to as the Back Dock of the store. The applicant described his position as that of "Back Dock Coordinator (trucks unloader) and Safety Officer".
[6] In March 2016, there was a change in the management personnel at the Avalon Supermarket. At this time, Mr Tiller, who had previously been the Store Manager at the Woolworths' Warriewood Supermarket, became the Store Manager at the Avalon Supermarket, and Mr Lose, who previously worked as Assistant Store Manager at the Woolworths' Mona Vale store, became Assistant Store Manager at the Avalon Supermarket. The transfer to the Avalon Supermarket of Mr Tiller as Store Manager, and Mr Lose as Assistant Store Manager, were changes that were introduced with the aim of improving the performance of the Avalon store.
[7] These management personnel changes meant that the applicant was supervised by two "new" managers. Mr Lose, as Assistant Store Manager, became the applicant's immediate supervisor, and Mr Tiller, as Store Manager, was the most senior on-site manager. The working relationship between the applicant and Mr Lose was, until about June 2016, harmonious and without recorded incident. Mr Lose considered the applicant to be very proficient in performing his role, and he said that the applicant did not require a lot of direction. In any event, there was only limited opportunity for interaction between the two men because the applicant commenced his part-time evening role at a time when, on most occasions, Mr Lose had finished and left the store.
[8] In June 2016, Mr Lose was looking for an item of equipment referred to as a Radio-Frequency unit (RF unit). RF units are devices that are used for scanning items for inventory, ticketing, receiving and shrinkage purposes. The RF units are generally stored in the office area of the Avalon Supermarket. However, Mr Lose was aware that the applicant had a practice of storing an RF unit in a metal lockbox that was located on the wall of the Back Dock area. The applicant also used this metal lockbox to store various personal items, and he had purchased and attached his own padlock to the lockbox as a means to establish his exclusive access to the metal lockbox.
[9] On this occasion in June, Mr Lose obtained an RF unit from the metal lockbox which would ordinarily only be accessible to the applicant. Mr Lose said that the padlock that the applicant had put on the metal lockbox was not locked, and thus he was able to access the RF unit that had been stored inside the lockbox. The applicant subsequently discovered that the particular RF unit that he had stored in the metal lockbox had been removed, and he confronted Mr Lose about what he believed to be the use of a locksmith who, at the direction of Mr Lose, opened the padlock that he had used to establish his exclusive access to the metal lockbox.
[10] The applicant was very aggrieved at what he considered to be the highly inappropriate access to his personal belongings stored in the metal lockbox. Mr Lose rejected the applicant's complaint, and he asserted that the applicant's padlock was not locked, and thus he did not "break into" the metal lockbox. Further, Mr Lose challenged that the applicant had any legitimate basis to use his own padlock as a means to establish exclusive access to the lockbox. Mr Lose rejected that the metal lockbox was a storage facility for the exclusive use of the applicant, and he made a distinction between the metal lockbox as a storage facility for general access, as compared with the personal lockers that were provided for employees in an upstairs area of the store.
[11] The applicant's concerns were not at all assuaged by the explanations provided by Mr Lose. The applicant maintained that Mr Lose had employed a locksmith to break into his personal locker, and he conveyed this message to the Store Manager, Mr Tiller, when he met with him shortly after his discussion with Mr Lose. Subsequently, Mr Tiller had a discussion with Mr Lose about what appeared to be the engagement of a locksmith to access the applicant's personal locker. Mr Lose told Mr Tiller that a locksmith had been on site for an entirely different purpose, the applicant's personal locker had not been touched, the metal lockbox in the Back Dock area was not locked, and, in any event, the lockbox was a storage facility for general purposes and not for the personal use of the applicant.
[12] Mr Tiller accepted the explanations that were provided by Mr Lose about the circumstances surrounding the applicant's complaint about unacceptable access to the metal lockbox, and, as the applicant did not approach him again about the matter, he believed it had been resolved.
[13] At around the same time that the lockbox issue had arisen, the applicant also became aggrieved about another matter that involved Mr Lose making changes to the placement of furniture in the Back Dock area. In brief, Mr Lose decided that a desk and stool that the applicant used should be removed and replaced with a repair station. Mr Lose told the applicant about the removal of the desk and stool and the applicant resisted this change. Mr Lose moved the desk and stool and the applicant returned these items of furniture to their previous location. This to and fro movement of the desk and stool occurred on several occasions until finally Mr Lose had the desk and stool collected with the garbage.
[14] The applicant complained to Mr Tiller about Mr Lose throwing "his" desk and stool into the garbage. Mr Tiller raised this matter with Mr Lose, who explained that the desk and stool were removed so that a repair station could be situated under the stairs in the area previously taken up by the desk. Further, Mr Lose told Mr Tiller that two ledges had been installed in the Back Dock area so that employees, including the applicant, could complete paper work.
[15] Mr Tiller accepted the explanations that were provided by Mr Lose about the circumstances surrounding the removal of the desk and stool which the applicant regularly used, and, as the applicant did not approach him again about the matter, he believed it had been resolved.
[16] The applicant commenced a continuous period of leave from 2 July 2016 to 26 November 2016, comprising a combination of personal leave and annual leave. The applicant provided various medical certificates for the period of his absence on personal leave which did not specify the nature of the illness or other basis for the personal leave.
[17] During the period of the applicant's leave between July and November 2016, he regularly attended the Avalon Supermarket as a customer. On separate occasions during November 2016, the applicant had discussions with both Mr Lose and Mr Tiller at times when he was at the Avalon Supermarket as a customer. Unsurprisingly, these discussions included inquiry as to when the applicant might be returning to work. In response to these enquiries, the applicant did not indicate any prospect of his return to work.
[18] On or around 27 November 2016, the applicant provided a letter of resignation to Mr Tiller. The applicant's letter of resignation stated, inter alia, that:
"In view of ongoing and persistent bullying, harassment and intimidation by Will Lose, the 2IC of Woolworths Avalon, and the associated dangers of working in a disruptive environment and also, since my leave entitlements have now expired, I am left no choice but to resign.
In view of the above, my employer and employee relationship with Woolworths is extinguished as of 27 November 2016. "
[19] Consequently, on 27 November 2016, the applicant resigned from his employment, without providing any period of notice.
[20] The applicant provided three tranches of written submissions respectively dated 1 February, 1 March, and 15 March 2017.
[21] In summary, the applicant submitted that he had been dismissed in the sense that he was forced to resign his position as back dock coordinator at Woolworths Avalon, on 27 November 2016, because of the employer's conduct towards him. The applicant said that the employer's conduct represented severe intimidation, harassment and bullying over the months prior to the applicant taking what he described as forced leave.
[22] The written submissions made by the applicant asserted that the applicant felt forced to take personal leave on and from 29 June 2016, up until 30 October 2016. Further, the applicant submitted that he then took annual leave up until 26 November 2016, and at that point felt forced to resign from Woolworths on 27 November 2016.
[23] The applicant submitted that the conduct of the employer which forced him to commence his period of leave involved Mr Lose breaking into the locker that he used in the receiving area to store personal belongings and equipment. The applicant said that equipment and personal belongings were taken including his padlock, a hairbrush and an analogue RF gun. Further, the applicant mentioned that access to his workstation, desk and stool had been repeatedly interfered with by Mr Lose over an extended period.
[24] In addition, the submissions of the applicant mentioned that the alleged bullying, harassment and intimidation of the applicant by Mr Lose included requests for him to undertake particular cleaning of the Back Dock area, and questioning regarding the applicant returning to his home to assist his disabled wife during his meal break. The applicant submitted that the various activities of Mr Lose particularly including, breaking into his locker, and removing his desk and workstation, were clear examples of bullying, harassment and intimidation which forced the applicant to resign.
[25] The applicant's submissions rejected that he had not properly elevated his concerns with the employer as he had spoken to the Store Manager, Mr Tiller about the various actions of Mr Lose. Further, although the applicant acknowledged that Mr Lose had asked him back to work in a "squeaky little mouse voice" the applicant was unwilling to work for a company that was involved in unlawful workplace practice.
[26] The applicant further submitted that he had witnessed the employer's treatment of other employees which resulted in their respective resignations. The applicant submitted that these other employees had been subjected to coercion, bullying, harassment and intimidation which had caused them to depart from employment at Woolworths Avalon. The applicant submitted that these events involved "despicable acts of human indecency and illegal."
[27] In his closing written submissions, the applicant made a detailed examination of what he described as Woolworths attempted character assassination of himself. In particular, the applicant rejected that he was in possession of confidential material in the form of a deed of license between Pittwater Council and Woolworths. The applicant submitted that this material was something that could be accessed in the public domain. The applicant made submissions which were strongly critical of what he described as false accusations that had been made against him.
[28] The applicant submitted that Woolworths had engaged in an attack upon his credibility which involved getting Indian immigrant workers to make false accusations and "cast dispersions" [sic] on his character. The applicant submitted that Woolworths conduct of bullying, harassment and intimidation meant that "most workers walk out, beaten and damaged, and fade quietly into the night." However, the applicant submitted that he had overcome the jurisdictional objection raised by Woolworths, and he referred to the text of subsection 386 (1) (b) of the Act.
[29] The closing written submissions of the applicant also returned to a further examination of the actions of Mr Lose, particularly involving the alleged breaking into the locker (Lock Box), the constant moving of the applicants desk, and ultimately throwing the desk, chair and the applicant's safety photo, out with the rubbish. The applicant submitted that these actions involved intimidation, harassment and bullying.
[30] The applicant also made submissions which highlighted his concern about the presence of a legal representative during the Hearing. The applicant submitted that Woolworths had been engaged in "witness tampering" and that some extremely disturbing issues had come to light in relation to interfering with "known witnesses." The applicant submitted that these issues would "come out in the wash in the District Court".
[31] The applicant made submissions which sought to address evidence about the applicant not escalating any of his complaints about the alleged bullying, harassment and intimidation engaged in by Mr Lose. The applicant submitted that Woolworths' criticisms of the applicant's actions were designed to avoid disclosure of Woolworths' "unlawful workplace practice, bullying, harassment and intimidation, unfair dismissal and assorted despicable acts of human indecency."
[32] The applicant submitted that he had overcome the jurisdictional objection raised by Woolworths, and he had established that he had been constructively and unfairly dismissed. The applicant submitted that he required an unfair dismissal remedy. The applicant provided a proposed Order for remedy for his unfair dismissal which had been calculated as an amount of $71,276.00, which represented two years' wages and long service leave.
[33] The employer provided written submissions respectively dated 22 February, and 9 March 2017. The written submissions made by the employer strongly maintained jurisdictional objection to the application on the basis that the applicant had not been dismissed as provided by the definition contained in s. 386 of the Act. Alternatively, the employer submitted that if the applicant was to have overcome this jurisdictional objection, the circumstances surrounding the cessation of the applicant's employment should not be considered, on any objective basis, to be harsh, unjust or unreasonable.
[34] The employer's written submissions recounted in detail the particular events which the applicant alleged constituted harassment, intimidation and bullying. The employer submitted that when properly examined these events were little more than reasonable management action undertaken by Mr Lose. The employer acknowledged that the applicant had made complaint to Mr Tiller about the metal lockbox incident and the removal of the desk and chair from the Back Dock area. However, the employer submitted that it was not aware that the applicant continued to hold a grievance or concern such that it might result in his resignation from employment.
[35] The submissions made by the employer further asserted that the applicant had not pursued and exhausted various avenues of potential redress that were available to him in respect of any concerns that he may have had regarding the conduct of Mr Lose. Consequently, the employer submitted that on any objective assessment, the conduct of the employer could not be held to have been intended to bring about the end of the employment relationship, or have the end of the employment relationship as a probable result.
[36] The employer's submissions referred to various authorities and other decided cases which dealt with the question of alleged constructive dismissal. The employer submitted that the employer had not engaged in conduct that was intended or may have had the probable result of causing the employment to come to an end. Further, the employer submitted that the applicant had considered his resignation for some time and he did not explore any alternatives to this course of action. Consequently, according to the submissions made by the employer, the termination of the employment of the applicant could not be held to be as a result of the actions of the employer.
[37] The employer submitted that the applicant chose to resign on 27 November 2016, in circumstances where he clearly had various alternative actions available to him if he maintained genuine on-going concern about the alleged intimidation, harassment and bullying of Mr Lose. The employer submitted that the applicant had not been constructively dismissed, and the application for unfair dismissal remedy should be dismissed by the Commission.
[38] The employer also made submissions seeking that the Commission make an Order for the applicant to pay the employer's costs which it stated to be an amount of $30,000. This amount was said to encompass external legal fees and other internal costs associated with the defence of the applicant's unfair dismissal claim. In this regard, the employer made submissions which requested that it be provided with an opportunity to introduce further materials including without prejudice correspondence previously extended to the applicant, as this material would be relevant to the Commission's consideration and determination of the employer's costs application.
[39] Section 385 of the Act stipulates that the Commission must be satisfied that four cumulative elements are met in order to establish an unfair dismissal. These elements are:
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
[40] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. The question of whether or not a person has been dismissed from employment involves mixed findings of both fact and law. Further, section 386 of the Act prescribes a meaning of "dismissed". Relevantly, sub-section 386 (1) of the Act is in the following terms:
(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."
[41] In this instance the applicant provided a written resignation from his employment in the form of a letter dated 27 November 2016. The written resignation had immediate effect as it did not include any period of notice. The applicant has asserted that he was forced to resign from his employment because of conduct, including a course of conduct, engaged in by the employer. These circumstances are often described as a constructive dismissal in that it is asserted that it was the intention of the employer to have the applicant resign from employment, and that it was action or actions of the employer that essentially compelled the applicant to resign.
"Alternatively, the employee may, in certain circumstances, treat herself or himself as discharged from further performance of the contract, and leave the employment without giving the requisite notice. This course will be justified where the conduct of the employer amounts to a repudiation of the contract, that is, the employer's breach or proposed breach is sufficiently serious to allow the employee to regard herself or himself as discharged from further performance of the contract. The term "constructive dismissal" is often used to describe this situation."
[43] Consequently, the circumstances in this instance involve an alleged constructive dismissal where the resignation given by the employee did not include any period of notice. In such circumstances, the conduct of the employer must be carefully examined so as to establish whether it was sufficiently serious so as to be an egregious breach of the contract of employment which represented a repudiation of the contract of employment. If the evidence established that the employer's conduct was such an egregious breach, proper basis would exist so as to permit the applicant to regard himself as discharged from further performance of the contract. In such circumstances, the applicant would be constructively dismissed.
"However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer."[3]
"Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?"
"In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee..."
[46] In the present case, the relevant actions of the employer which the applicant said forced him to resign occurred during June 2016. Some considerable period of time elapsed before the applicant provided his written resignation without notice on 27 November 2016. During this intervening period the applicant was firstly on a period of personal leave followed by a period of annual leave. Importantly, at no time during this leave period did the applicant either advise the employer that his leave was connected with grievance regarding the actions of the employer, nor did he further agitate or elevate his grievance about the alleged actions which was said to cause his resignation.
[47] Consequently the employer was unaware that the absence of the applicant was apparently connected with complaints that he had raised with Mr Tiller about the actions of Mr Lose, particularly concerning the metal lockbox incident and the removal of the desk and chair that the applicant used in the Back Dock area. Unless the actions of the employer were so egregious as to amount to manifest repudiation of the employment, any reliance upon objectionable action of the employer as basis for a constructive dismissal, would, as a matter of logic and fairness, have to have been the subject of properly articulated complaint. How could an employer rectify the situation if it was not informed that the employee believed that they were subjected to harassment, intimidation and bullying?
[49] As previously mentioned, if upon objective analysis, the actions of the employer upon which the constructive dismissal was founded, were so egregious as to represent the repudiation of the employment, then the applicant may have been able to treat the employment to be at an end. In such circumstances, any communication of complaint to the employer, and proper escalation of grievance may be considered to have been unnecessary because no rectification of the grossly egregious action of the employer could have resuscitated the employment.
[50] Therefore, the particular actions of Mr Lose about which the applicant made complaint need to be carefully assessed so as to determine whether this conduct represented grossly egregious action of such severity that it repudiated the employment, and permitted the applicant to treat the employment to be at an end. There were two primary aspects of the applicant's complaints about the actions of Mr Lose; (1) the metal lockbox incident, and (2) the desk/stool removal.
[51] An objective and balanced assessment of all of the evidence surrounding the metal lockbox incident has established that the applicant had justifiable basis to be upset about Mr Lose accessing the lockbox. The applicant had attached his own padlock to the lockbox as a means to establish his exclusive access to this particular storage facility. It was clear that, rightly or wrongly, the applicant was treating the metal lockbox as a personal storage facility.
[52] Although Mr Lose had a legitimate business purpose in seeking to find the RF unit that he understood to be in the lockbox, by opening the unlocked box Mr Lose was consciously entering what would have obviously been the private domain of the applicant. This was a regrettable misjudgement on the part of Mr Lose, as I believe that any person, including Mr Lose himself, would be aggrieved if some other person accessed a storage facility or locker which was clearly the private domain of an individual, without first obtaining the consent of that individual.
[53] Regrettably, the applicant did not pursue his legitimate complaint about the actions of Mr Lose in respect to the metal lockbox incident with reasonable care, diligence or persistence. Unfortunately, the applicant's description of the incident led Mr Tiller to believe that Mr Lose had gained entry to the applicant's personal locker located in another area of the store. When questioned by Mr Tiller about the incident, Mr Lose explained that he had gained access to a metal lockbox and not the applicant's personal locker. Further, the applicant had assumed that the presence of the locksmith was linked to the access obtained to the lockbox, and when this connection was disavowed the strength of the applicant's complaint suffered. In the absence of any further agitation by the applicant regarding the metal lockbox incident, the matter simply fell away in the mind of Mr Tiller.
[54] In any event, although the applicant had legitimate basis for complaint about the conduct of Mr Lose when he accessed the metal lockbox, this was action reflective of a misjudgement on the part of Mr Lose rather than something that could be construed to represent an egregious breach of the employment relationship. The metal lockbox incident should have been a matter that, if properly agitated and following proper and thorough investigation, resulted in firstly, an apology from Mr Lose to the applicant, and secondly, a formal directive to the applicant to remove his personal padlock from the lockbox together with any other personal items that he had stored in it.
[55] The evidence surrounding the removal of the desk and chair/stool that the applicant used in the Back Dock area manifested as something akin to a childish power struggle between a longer serving junior employee who refused to accept the new manager's instruction. In simple terms, Mr Lose had a legitimate business purpose as his motivation for rearrangement of furniture in the Back Dock area. Although the applicant may have disapproved of the rearrangement he was obliged to accept it.
[56] There was no evidence to support any inference that the rearrangement of the desk and stool and other changes to the furniture and layout of the Back Dock area, were actions which were taken to deliberately strain the employment relationship with the applicant. Mr Lose was acting in pursuit of legitimate business purposes as he believed that a repair station in the area of the desk would provide for some genuine commercial benefit.
[57] An objective analysis of the specific aspects of the applicant's complaints regarding the conduct of Mr Lose does not permit any finding that the metal lockbox incident and/or the desk/stool removal, either separately or in combination, and having regard for the broader context of the interactions between the applicant and Mr Lose, were actions of the employer that were designed to produce or likely to lead to the resignation of the applicant. In particular, the actions of Mr Lose could not be construed as egregious breaches of the employment relationship which repudiated the employment, so as to permit the applicant to have treated the employment to be at an end.
[58] Unfortunately, rather than pursuing the legitimate aspects of complaint about the actions of Mr Lose, the applicant commenced a period of leave which the employer quite understandably did not consider to be connected with the concerns that the applicant had previously raised with Mr Tiller. There is an obligation on both parties to the employment relationship to take reasonable steps to maintain the relationship. The absence of any pressed articulated complaint meant that the employer had no opportunity to rectify the legitimate aspects of complaint about the conduct of Mr Lose. In these circumstances the subsequent resignation of the applicant that coincided with the expiry of his paid leave, cannot be properly connected with any conduct, or a course of conduct engaged in by the employer.
[59] The determination of this matter has involved a contest about whether or not the applicant was a person dismissed from employment. Upon application of the relevant tests and an analysis of the evidence involving the circumstances of the termination of employment, it has been established that the resignation of the applicant was not caused by conduct, or a course of conduct, on the part of the employer.
[60] Unfortunately, the applicant has appeared to misconstrue the concept of constructive dismissal, and he has translated certain misjudged actions of Mr Lose which provided for understandable concerns, into conduct which was artificially elevated to represent the repudiation of the employment. A constructive dismissal is not established simply because an employee decides to treat the conduct of an employer as the repudiation of the employment. The conduct of the employer will be the true initiator of the termination of employment only if it can be objectively and properly established to have been incompatible with the continuation of the employment.
[61] As a matter of fundamental fairness, the applicant was obliged to elevate his complaints and engage in further discussion and other communications about his concerns. If, after further discussion, the employer made little or no attempt to rectify the legitimate aspects of the applicant's complaints, only then could the concept of constructive dismissal be potentially enlivened. In this instance, the applicant did not have proper basis upon which to treat the actions of the employer as a repudiation of the employment.
[62] The applicant had a variety of options other than resignation, including elevating his complaints as was suggested to him by another employee. The applicant was clearly not forced to resign.
[63] Consequently, a careful analysis of the circumstances in this instance has established that it was not the actions of the employer that operated as the real and effective initiator of the termination of the contract of employment. The applicant was not a person dismissed from employment, and the jurisdictional objection as advanced by the employer must be upheld.
[64] The application is dismissed as it is without jurisdictional foundation. An appropriate Order shall be issued accordingly.
Printed by authority of the Commonwealth Government Printer
Stephen Geoffrey Fitzgerald
Woolworths Limited [2017] FWC 1730