1
Fair Work Act
2009
s.394 - Application for unfair dismissal remedy
Stephen Geoffrey Fitzgerald
v
Woolworths Limited
(U2016/14484)
COMMISSIONER CAMBRIDGE SYDNEY, 5 APRIL 2017
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.
Factual Background
[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
[2017] FWC 1730 [Note: An appeal pursuant to s.604 (C2017/2237) was
lodged against this decision - refer to Full Bench decision dated 17 October
2017 [[2017] FWCFB 2797] for result of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/documents/decisionssigned/html/2017FWCFB2797.htm
[2017] FWC 1730
2
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
[2017] FWC 1730
3
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.
[2017] FWC 1730
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[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.
The Applicant’s Case
[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
[2017] FWC 1730
5
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.
[2017] FWC 1730
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The Employer’s Case
[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.
[2017] FWC 1730
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Consideration
[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:
(a) the person has been dismissed; and
(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:
“386 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.”
[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.
[42] The concept of constructive dismissal which involves the alleged forced resignation of
an employee, often includes a resignation that provides the requisite notice given by the
employee. In this instance the resignation provided by the applicant did not include any period
of notice, and such circumstances can be comprehended by the concept of constructive
dismissal as explained by the learned authors of the often quoted source book, Macken’s Law
of Employment 1 and the following passage from that text is instructive:
“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.”
[2017] FWC 1730
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[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.
[44] There is a significant amount of case law authority on the question of constructive
dismissal. One case which is often referred to is that of Mohazab v Dick Smith Electronics
(No2)2 (Mohazab) which succinctly summarised the concept of constructive dismissal as
follows:
“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
[45] In Mohazab, the Full Bench of the Court also referred to another authority in the case
of Allison v Bega Valley Council 4 (Allison). The following extracts from the decision in the
Allison case is particularly helpful for application in the present circumstances:
“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?”
and
“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
[2017] FWC 1730
9
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?
[48] In this case, the extent to which the applicant agitated complaint involved verbal
complaints made to the Store Manager Mr Tiller, without any further indication to him or
other more senior managers, that the grievance had not been satisfactorily addressed. The
evidence clearly established that the applicant was aware of a “hierarchy through
Woolworths”5 although he may have considered it complex and convoluted, there was no
evidence that he took any action whatsoever to alert Woolworths to his unresolved grievance
which was of such significance that it ultimately caused his resignation from employment.
[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.
The Metal Lockbox Incident
[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
[2017] FWC 1730
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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.
The Desk/Stool Removal
[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.
Conclusion
[2017] FWC 1730
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[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.
COMMISSIONER
Appearances:
Mr S Fitzgerald appeared unrepresented.
Ms N Barclay appeared for the employer.
[2017] FWC 1730
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Hearing details:
2017.
Sydney:
March, 3.
Printed by authority of the Commonwealth Government Printer
Price code C, PR591338
1 Macken’s Law of Employment , [Sappideen et al,] Seventh edition, Lawbook Co. @ [9.20] page 346.
2 Mohazab v Dick Smith Electronics Pty Ltd (No.2), (1995) Industrial Relations Court of Australia, 62IR 200.
3 Ibid @ page 207.
4 Allison v Bega Valley Council, (1995) Full Commission of the Industrial Relations Commission of NSW, 63IR 68.
5 Transcript PN410.
