Sathananthan, Ravi v BT Financial Group Pty Limited. - [2019] FWC 5583

1

Fair Work Act 2009 
s.394 - Application for unfair dismissal remedy

Ravi Sathananthan

v

BT Financial Group Pty Limited
(U2019/5050)

COMMISSIONER HAMPTON ADELAIDE, 30 OCTOBER 2019

Application for an unfair dismissal remedy - jurisdictional issue - applicant resigned 
employment - whether dismissed - dismissal if applicant forced to resign because of conduct, 
or course of conduct, engaged in by respondent - respondent’s conduct considered - alleged 
treatment of complaint against applicant taken more seriously than his complaint against co-
worker - some of applicant’s complaints not investigated or considered - excessive working 
hours - respondent did not properly address some legitimate and significant workplace 
concerns and no indication that it would do so - consistently excessive working hours a major 
factor given the context - applicant regularly informed respondent of impact - no real or 
effective choice but to resign and resignation probable as a result - on balance applicant 
forced to resign because of conduct or course of conduct - dismissal found - dismissal unfair -
reinstatement not sought and inappropriate - compensation ordered.

1. What this decision is about 

[1] Mr Ravi Sathananthan (the Applicant) has applied to the Fair Work Commission (the 
Commission) for an unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the 
FW Act) following his alleged unfair dismissal from BT Financial Group Pty Limited (BT or 
the Respondent).

[2] BT is a wealth management company wholly owned by Westpac Banking Corporation 
(Westpac). Relevantly for present purposes BT operates from various locations around 
Australia including offices in Perth, Sydney and Adelaide. 

[3] Mr Sathananthan’s employment with BT commenced in April 2012 as a Customer 
Relations Consultant based in South Australia. From June 2015, Mr Sathananthan was 
employed as a Business Development Manager (BDM) in Western Australia. In June 2018 
the Applicant returned to Adelaide, ostensibly in the same BDM role.

[4] It is common ground that Mr Sathananthan tendered his resignation from BT on 
12 March 2019 and that his final day of work was 12 April 2019. Mr Sathananthan lodged 
this unfair dismissal application on 3 May 2019 and contends that under s.386(1)(b) of the 

[2019] FWC 5583

DECISION


E AUSTRALIA FairWork Commission




 



[2019] FWC 5583

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FW Act he was forced to resign because of conduct, or a course of conduct, engaged in by the 
Respondent.

[5] BT contends that the Commission does not have jurisdiction to decide the matter 
because there was no dismissal. It posits that the resignation was not forced within the 
meaning of s.386(1)(b) and the Applicant resigned of his own freewill and volition. 

[6] After conducting a directions conference with the parties on 5 July 2019 and 
considering the nature and extent of the evidence involved, I determined that a hearing would 
be the most effective and efficient way to resolve this matter.1 I also determined, with the 
support of both parties, that the jurisdictional issue should be heard together with the
questions of merits and remedy in the matter, as a matter of efficiency. 

[7] As a result, this decision deals with both the jurisdictional question of whether 
Mr Sathananthan was dismissed within the meaning of the FW Act and, given my findings,
the substantive questions of merit and remedy.

[8] I observe that there is no contest that the application was validly made within time2

and that Mr Sathananthan was protected from unfair dismissal.3

2. The cases presented by the parties 

2.1 Mr Sathananthan

[9] Mr Sathananthan was represented, with permission, by Mr Smith and Mr Krishnan of 
Norman Waterhouse Lawyers. Mr Sathananthan provided written and later oral submissions, 
and two witness statements, which were supported by comprehensive annexures. 

[10] The general propositions underpinning Mr Sathananthan’s position may be 
summarised as follows:

 He began working for BT in April 2012 as a Customer Relations Consultant based in 
South Australia before, in June 2015, moving to a BDM position in Perth;

 While based in Perth he began a consensual, casual relationship with an Adelaide-
based Business Support Officer (BSO) who also worked for BT (the A-BSO)4;

 This relationship lasted from December 2017 to April 2018, whilst he was based in 
Perth;

 In late June 2019 he entered a new personal relationship;

 From at least December 2017 he was aware of performance concerns regarding the A-
BSO but felt she could improve with him as her mentor;

                                               
1 Section 399(1) of the FW Act.
2 Section 394(2) of the FW Act.
3 Section 382 of the FW Act. Mr Sathananthan had served the minimum employment period and was not paid above the high 

income threshold.
4 For reasons later discussed I have determined that the A-BSO’s identity will not be disclosed in this Decision.








[2019] FWC 5583

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 On a few occasions, after he had returned to Adelaide he was requested by the A-BSO
to attend her house to counsel her regarding workplace issues and did so as a mentor;

 He was often required to cover the A-BSO’s duties as her performance did not 
improve and she was frequently absent or unproductive at work;

 He eventually cut all ties with the A-BSO to protect his reputation and “personal 
brand”, “instructing” her not to contact him at all, apart from as required to support 
him in her BSO role;

 He reported serious concerns about the A-BSO’s work performance and the impact on 
the team to the appropriate people at BT on a number of occasions but these matters
were not adequately addressed;

 He also reported on a number of occasions that the A-BSO’s conduct and performance 
was having a serious effect on his health and well-being, and that if the situation did 
not improve his position may become untenable;

 When he made a formal complaint regarding the A-BSO, including allegations 
regarding the A-BSO’s continuing conduct in contacting him on a personal basis, it 
was not appropriately dealt with or investigated while the A-BSO’s “vexatious”
complaints against him (which were largely found by BT to be unsubstantiated) were 
treated very seriously and investigated by BT on two occasions; 

 His workload increased significantly while a colleague was on paternity leave, whilst 
he was also required, in effect, to cover the A-BSO’s duties. BT did not offer him any 
proper support to help manage the workload, despite him flagging such concerns to 
BT on multiple occasions; 

 This increased workload resulted in him having to work excessive additional hours, 
contrary to an arrangement made with BT regarding excessive hours when he 
relocated from Perth to Adelaide and the impending departure of a fellow Adelaide-
based BDM only added to that workload;

 During March 2019 he suffered health episodes stemming from these events including 
a panic attack; and

 Given the impact the workplace and his working conditions were having on his health 
and the lack of any alternatives, he had no choice but to resign his employment. This 
was a forced resignation and a dismissal for the purposes of the FW Act.

[11] Mr Sathananthan contends that the dismissal was, having regard to the considerations 
provided by s.387 of the FW Act, unfair and that the maximum compensation available in lieu 
of reinstatement should be ordered by the Commission.

2.2 BT Financial Group Pty Limited

[12] BT was represented, with permission, by Ms Makris of HWL Ebsworth Lawyers and
provided written and later oral submissions responsive to the issues. In addition, BT relied 
upon witness statements and led sworn evidence from the following employees:

 Ms Krystina Taddeo, Case Manager - Employee Care Team - Human Resources;

 Mr Dennis Cargill, State Manager WA, SA and NT - BT Life Insurance Advisor 
Distribution, based in Perth; and








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 The A-BSO, Business Support Officer - Life Insurance.

[13] Given the personal aspects of the relationship between the A-BSO and 
Mr Sathananthan, which is relevant to the contextual background in this matter, coupled with 
the fact that the A-BSO is a witness rather than a party to these proceedings and there may be 
related workplace developments,5 I have determined it is not appropriate to publish the A-
BSO’s name in this decision.

[14] The general propositions underpinning BT’s position may be summarised as follows:

 It was aware of personal issues between Mr Sathananthan and the A-BSO and that 
each had made complaints about the other;

 It recognised that the working relationship between Mr Sathananthan and the A-BSO
was deteriorating and informal solutions were implemented to address issues between 
the pair;

 When these informal solutions were not successful, it escalated the issues to Human 
Resources (HR) and implemented additional steps to manage the working relationship 
while HR investigated;

 The HR review found that Mr Sathananthan’s complaints about the A-BSO were 
outside the scope of an investigation as, with one exception, they related to work 
performance, whereas the A-BSO’s complaints about Mr Sathananthan were within 
scope as they related to conduct;

 The outcome of the process was that the A-BSO’s performance issues would be 
managed by the A-BSO’s People Leader through the relevant process, while the 
conduct issue would be further investigated;

 The outcome of this investigation was properly communicated to Mr Sathananthan 
and he was coached on appropriate behaviours;

 BT took both Mr Sathananthan’s complaints about the A-BSO and the A-BSO’s 
complaints about Mr Sathananthan seriously;

 On two prior occasions BT had persuaded Mr Sathananthan not to resign;

 BT had never considered ending Mr Sathananthan’s employment with it prior to his 
resignation and this was not intended;

 Mr Sathananthan resigned his employment of his own volition, he was not forced to 
do so by BT and therefore he was not dismissed; and

 If Mr Sathananthan’s resignation is considered a dismissal, he was not unfairly 
dismissed within the meaning of the FW Act.

[15] In the alternative, BT contends that there may have been a valid reason for dismissal 
and that there was no evidence that it had “breached” its obligations under the FW Act, and in 
effect, that any compensation considered by the Commission should be limited given the 
history of issues surrounding Mr Sathananthan and his decision to resign and the absence of 
evidence about appropriate mitigation attempts made by him.

                                               
5 A Confidentiality Order was made by the Commission concerning this matter.








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3. Observations on the evidence 

[16] I found Mr Sathananthan’s evidence was given honestly and openly and was supported 
by contemporaneous notes and records in many cases. Mr Sathananthan displayed impressive
recall and voluntarily made concessions regarding previous events. Overall 
Mr Sathananthan’s evidence was clear and convincing and, with some limited exceptions, I 
prefer it to the evidence of Ms Taddeo and the A-BSO where there is a direct factual dispute.

[17] Where there is a dispute between Mr Sathananthan’s evidence and Mr Cargill’s 
evidence I will deal with such, if relevant, as it arises noting that there is an element of 
subjectivity in each case. 

[18] The exceptions mentioned earlier regarding Mr Sathananthan’s evidence are the 
number of text message communications Mr Sathananthan apparently had with the A-BSO. 
Mr Sathananthan gave evidence that the small selection of SMS messages provided during the 
evidence comprised some 40-50% of the total messages between the pair. I consider that a
reasonable presumption, based upon the evidence, is that the two engaged in frequent text 
message communications for a period and that the selection provided comprised a much 
smaller proportion of that total and I have taken into account that the full context has not been 
provided. I do however accept the SMS messages provided by Mr Sathananthan are genuine
and largely support his version of the relevant events.

[19] Secondly, Mr Sathananthan’s position, that the personal issues he had about the A-
BSO did not have any impact upon his assessment of her work performance, was not credible. 
It is apparent to me that Mr Sathananthan’s view of the A-BSO changed after the end of their
personal friendship and that he became much more critical of her work performance. In 
addition, whilst Mr Sathananthan did not expressly call upon BT to dismiss the A-BSO, he 
did make regular communications to Mr Cargill and others that called into question (in his 
view) the viability of her continuing employment. 

[20] I found Ms Taddeo’s evidence regarding the facts of BT’s response to the unfolding 
circumstances to be given honestly but was guarded in some respects. Ms Taddeo was often 
not able to give her evidence, even on general propositions, independently of a reference to
documentary materials and she was at times reluctant to make concessions on the most 
obvious of matters. I also observe that, given her role in the company, she was not in a 
position to give direct evidence on many particularly contested matters.

[21] Despite making some appropriate allowance for personal mitigating circumstances, I 
found the A-BSO to be less than fully convincing as a witness. Her recall of key events 
involving herself and Mr Sathananthan was poor and she did not convincingly explain 
significant inconsistencies between allegations made to BT about Mr Sathananthan and her 
own contemporaneous communications with the Applicant. The A-BSO also materially 
altered her statement on some aspects without adequately explaining why that material was 
left out of the original statement. In making this assessment I have allowed for the fact that 
the embarrassment likely to be associated with these aspects and the A-BSO’s distress about 
some of the events leading to this application may have impacted upon her capacity to provide 
convincing evidence. The fairness of making this allowance is supported by some of the
medical evidence provided to the Commission and my own observations of her as a witness.








[2019] FWC 5583

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[22] Mr Cargill displayed good recall, gave his evidence clearly and generally made 
concessions on obvious matters. Subject to some important caveats I found his evidence to be 
of assistance in determining the facts of this matter. However, it is apparent that Mr Cargill is 
quick to form a definite view on issues as they arise, and that this may have impacted upon 
how such issues are later dealt with. It was also clear that Mr Cargill now holds a strong 
negative opinion of Mr Sathananthan; however his written description of the Applicant in his 
witness statement differed significantly from his oral evidence. This included, variously,
comments regarding Mr Sathananthan’s work performance, the veracity of his health 
concerns and his characterisation of Mr Sathananthan’s behaviour in relation to the A-BSO, 
including that he described such as being “predatory”. The relative strength of these 
comments was not consistent with his more moderately worded witness statement or any of 
the actions taken at the time. The lack of objectivity now evident, particularly in his oral 
evidence, has in my view also influenced his evidence more generally and this leads me to 
treat it with some caution.

[23] Mr Cargill also appeared to downplay his interactions with the Mr Sathananthan 
regarding the A-BSO. Given the apparent friendship between Mr Cargill and the Applicant 
and my view of the evidence, I consider it more likely than not that Mr Cargill did engage in 
some frank conversations with the Applicant regarding the A-BSO, largely along the lines 
contended by Mr Sathananthan.

[24] To the extent that any of the witnesses expressed subjective views about the 
reasonableness of the parties’ conduct, this is a matter for the Commission itself to determine.

4. Findings about the key events 

4.1 Chronology of events

[25] Given the particularly contested factual background in this matter it is helpful to lay 
out the general chronology of events before making my substantive findings. The chronology 
is not intended to be exhaustive. I have also included a number of disputed events in what 
follows based upon my view of the evidence. In some cases, I note the alternate positions and 
will return to my findings about these matters where required.

 Mr Sathananthan commenced employment with BT as a Customer Relations
Consultant based in Adelaide, South Australia in 2012. The A-BSO, then based in 
Sydney, also commenced employment with BT in 2012. Mr Cargill commenced in 
2009 as a BDM, and later became the People Leader for both the Applicant and the 
A-BSO.

 In June 2015 Mr Sathananthan was promoted to a BDM role based in BT’s 
Western Australian branch and subsequently moved to Perth. While in Perth, 
Mr Cargill and the Sathananthan family (the Applicant, his father, his mother and, 
on one occasion, his brother), attended dinners at Coco’s Riverside Restaurant, and 
Matilda Bay Restaurant together. Mr Cargill says that the Applicant’s father paid 
on both occasions, whereas the Applicant states that it was he who paid. 

 The Applicant and the A-BSO first met sometime between 2012 and 2014, or 
possibly as late as September 2015. The two initially spoke by phone as 








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Mr Sathananthan was a “Subject Matter Specialist” with expertise relevant to the 
A-BSO’s duties.

 In October 2017, a BSO role became available at BT’s Adelaide office.
Mr Sathananthan recommended the A-BSO to Mr Cargill for the role. The A-BSO
was subsequently offered the job, and she travelled to Perth to undertake her 
training.

 In around September or October 2017, Mr Sathananthan attempted to tender his 
resignation to Mr Cargill out of respect to a female colleague as he felt had 
behaved inappropriately toward her. However, Mr Cargill did not accept the 
resignation and indicated in effect that Mr Sathananthan was not at fault. The 
Applicant described Mr Cargill as being “fantastically supportive”.

 In or around the end of 2017, according to the A-BSO, she confided in the 
Applicant that she had feelings for two people (neither of whom were 
Mr Sathananthan). I add that the Applicant contends that, later in July 2018, the A-
BSO had said she was ‘torn’ between him and her former partner.

 During the first evening of the BT National Adviser Distribution Conference in 
November 2017, the A-BSO became intoxicated, and Mr Cargill was required to 
intervene. He asked the A-BSO to leave the staff function and privately disciplined 
her the next day for her behaviour. 

 In December 2017, while staying in Adelaide on annual leave, Mr Sathananthan 
attended a BT Christmas event at a local bar. The A-BSO and the Applicant were 
the last two to leave the event. They were affectionate with each other after other 
BT employees had left, and later went to the A-BSO’s home. Mr Sathananthan left 
the A-BSO’s home the next morning. This appears to be the first time the 
Applicant visited the A-BSO’s house.

 Throughout the period of December 2017 to January 2018, Mr Sathananthan and 
the A-BSO maintained a personal friendship outside the workplace and arranged to 
meet each other from time to time. This continued intermittently in both Adelaide 
and Perth up until around April 2018. 

 In around March 2018, Mr Sathananthan advised Mr Cargill that he was 
investigating a job opportunity at Telstra in Adelaide. This was driven, in part, by 
the Applicant’s desire to return to Adelaide due to home sickness. 

 During March 2018, Mr Sathananthan raised concerns to Mr Cargill about his 
excessive working hours undertaken in his role as a Perth-based BDM and the 
impact this was having on his health. Mr Cargill advised the Applicant to stop 
working “overtime”. 

 On 26 April 2018, BT offered Mr Sathananthan a contract of employment for a 
BDM role based in South Australia, due to start in June 2018.

 On 30 April 2018, prior to agreeing to the new contract of employment, 
Mr Sathananthan sought assurances from Mr Rogers,6 via email, that he would not 
regularly work “excessive” hours as a BDM in Adelaide. Mr Sathananthan 
accepted the BDM role after receiving an assurance to this effect.

                                               
6 The South Australia People Leader at that time.








[2019] FWC 5583

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 On 12 June 2018, Mr Sathananthan commenced work as a BDM in Adelaide. The 
A-BSO supported him (and other staff) in her role as BSO.

 On 14 June 2018, Mr Sathananthan sent an internal email which was 
complimentary of the A-BSO’s performance. He says this was positive 
reinforcement designed to encourage her; however, he also says he discovered 
issues with her performance from “day one”. This is disputed.

 Also on 14 June 2018, Mr Sathananthan picked up the A-BSO from her home 
before jointly travelling to meet a client. Mr Sathananthan dropped the A-BSO
back at her home later that day. Although cited by the A-BSO as the reason that 
Mr Sathananthan subsequently knew about her home address as part of later events, 
it is clear that the Applicant had already attended there after the BT Christmas 
party in December 2017.

 On 18 June 2018, Mr Sathananthan extended an interest free $750 loan to the A-
BSO to assist her. 

 In late June 2018, Mr Sathananthan entered a new personal relationship.

 The events of 3 July 2018 are particularly contested. The A-BSO did not attend the 
office on this day - Mr Sathananthan contends that the A-BSO slept in and sent a 
false report that she was sick to Mr Cargill. The A-BSO contends that Mr Cargill 
gave her permission to work from home due to a sore shoulder. At some point on 
this day Mr Sathananthan, allegedly at the A-BSO’s request - also a contested 
matter, attended her home. The Applicant states the A-BSO requested his guidance
to deal with the falsely-claimed sick leave issue. Conversely, the A-BSO states the 
Applicant entered her home uninvited and stayed causing her distress. 
Mr Sathananthan further contends that while consoling the A-BSO, she said “If I 
go down, I’m taking you down with me” - a statement the A-BSO denied making. 
Given the potential significance of these highly contested versions, I will return to 
these events in due course.

 At some time on 3 July 2018, the A-BSO contacted Mr Cargill and expressed 
regret for being less than open about the circumstances of her non-attendance that 
day. This is supported by the A-BSO’s own evidence about the matter.7

 On 5 July 2018, Mr Sathananthan sent an unequivocal text message to the A-BSO 
ceasing all non-essential contact with her and ending the professional and personal 
relationship between the two of them.

 Later on 5 July 2018, Mr Sathananthan emailed his concerns about the A-BSO’s 
attendance and effort while at work that day to Mr Cargill and Mr Dwyer. He also 
made recommendations for how the A-BSO may be better managed to achieve 
targets.

 On 8 July 2018, the A-BSO contacted Mr Sathananthan in a distressed state. The 
Applicant says that this communication obliged him to visit the A-BSO’s home 
once more to console her. Later that day he received a text message8 from the A-
BSO thanking him for his time and imploring him not to sever their personal 
friendship.

                                               
7 Exhibit R3 at paras 35.10-35.11. 
8 Annexure 6 of Exhibit A1. 








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 On 11-12 July 2018 the BT South Australian team attended a conference in 
Sydney. At some point during the conference Mr Sathananthan expressed concerns 
about the A-BSO to Mr Cargill. On their return flight the next day, the A-BSO sat 
next to the Applicant and he told her of his then-current personal relationship.

 At some point in July, Mr Sathananthan began documenting the A-BSO’s general 
behaviour within the office in a document titled “[A-BSO] Aaargh.docx”. This was 
a working document with the last addition made around September 2018.

 On 27 July 2018, Mr Sathananthan flew to Perth unannounced at his own expense 
in order to discuss his perceived problems with the A-BSO with Mr Cargill. This 
discussion included comments from Mr Sathananthan to the effect that he was 
feeling significant pressure due to the A-BSO’s behaviour and work performance 
and that he was not sure how much longer he could continue. 

 On 31 July 2018, the A-BSO sent a long text message to Mr Sathananthan 
expressing that she felt she was underperforming in her role as BSO, and was 
unliked/unsupported by the wider Adelaide team. A series of calls also took place 
that night between the pair. At 11:10 pm the Applicant phoned the A-BSO and they 
spoke for 22 minutes. Mr Sathananthan’s evidence is that he made this call out of 
his concern for the A-BSO’s wellbeing. Mr Sathananthan contends that the A-BSO
was intoxicated and seeking attention, and that he eventually terminated the call. At 
11:32 pm the A-BSO called the Applicant back and the call was connected for 6 
minutes before Mr Sathananthan disconnected the call. At 11:39 pm the A-BSO
called him again. This call was connected for 1 hour and 45 minutes. 
Mr Sathananthan says that he found the calls from the A-BSO ‘harassing’, and that 
he had put his phone down in a different room while the A-BSO spoke; the A-BSO
says they were both talking the entire time. 

 The next day, 1 August 2018, is also particularly contested. The A-BSO and 
Mr Sathananthan attended Magill Estate, a restaurant in Adelaide, in preparation 
for an upcoming work event. Upon leaving the restaurant, the two were sitting at a 
café where Mr Sathananthan told the A-BSO that he was cutting all ties with her, 
except as strictly required at work. During this discussion Mr Sathananthan also
gave the A-BSO a necklace from Tiffany & Co.; a high-end jeweller. He claims 
this was a “parting gift” and that he had originally bought the necklace as gift in 
anticipation of her upcoming birthday. His evidence was that after the phone calls 
the night before he decided that he needed to strictly limit their ongoing contact. 
The A-BSO contests this and suggests that Mr Sathananthan ceased their mentoring 
relationship because he had confessed his love for her. I will later discuss my 
findings in relation to the “parting gift”.

 At some point in early August 2018 Mr Sathananthan continued tracking the A-
BSO’s attendance at work and related information but commenced recording this in 
a further document called “[A-BSO] Tracker”. Mr Sathananthan contends he began 
tracking her movements pursuant to private legal advice that he note dates, times 
and events relating to the A-BSO given the earlier “threats”.

 At various times throughout August 2018 to mid-2019, the A-BSO attended her 
General Practitioner (GP) complaining of being bullied at work, anxiety, weight 
loss, and needing alcohol to sleep. The A-BSO states that her GP assessed her as 
unfit for work at various times. 








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 On 24 August 2018, the A-BSO alleges she received a call from Mr Sathananthan
demanding that she allow him to come over for a “deep and meaningful” - a 
request she rejected. Mr Sathananthan contends this phone call never occurred and 
that he has never had a conversation with the A-BSO to that effect. I cannot be 
satisfied that this occurred given the state of the evidence.

 On 30 August 2018, Mr Sathananthan had a discussion with Mr Cargill where he 
expressed his concerns that his work environment was unsafe due to the A-BSO’s 
conduct and performance. 

 In late August 2018, interactions in the BT office between Mr Sathananthan and 
the A-BSO became few, and the A-BSO alleges that the Applicant usually ignored
her. This is likely to have been the case.

 On 31 August 2018 Mr Sathananthan allegedly “snapped” at the A-BSO whilst 
requesting she get display stock out of her car. This allegation formed part of a 
formal complaint by the A-BSO against Mr Sathananthan. Mr Sathananthan denies 
the allegation and maintains that the A-BSO was the person who “snapped” at him. 
Around this time the A-BSO had also made a request to Mr Cargill that she be 
stationed away from the Adelaide office, or to be permitted to work from home.
Mr Cargill permitted the A-BSO to change the location of her office work station.

 On or around 17 September 2018 a team meeting took place between the Perth and 
Adelaide BT offices via Skype teleconference; the attendees included 
Mr Sathananthan, the A-BSO and Mr Cargill. At one point Mr Sathananthan 
requested his screen be shown to the group. When the Applicant was presenting his 
materials, the A-BSO and Mr Cargill noticed a document entitled “[A-BSO] 
Aaargh.docx” was open on Mr Sathananthan’s computer.

 On 20 September 2018, Mr Sathananthan completed a Guided Questionnaire with 
Mr Cargill to document his workplace concerns regarding the A-BSO. As part of 
the Questionnaire, Mr Sathananthan requested, in effect, that the A-BSO be 
replaced as his BSO with another locally-based BSO. It was also suggested that he 
requested the new BSO be “a clone” of a particular BSO who was engaged in the 
Perth Office. 

 On 10 October 2018 at approximately 6:08 pm, the A-BSO sent a text message to 
Mr Sathananthan asking that he meet her at a bar in Adelaide. The next day, 
Mr Sathananthan complained via email to a BT HR officer, Ms Price, about the A-
BSO contacting him outside of work hours for non-work business.

 On 15 October 2018, Mr Sathananthan emailed Mr Cargill a timeline of events and 
expressed his dismay that BT had not investigated his concerns with the A-BSO
earlier. The next day, Mr Cargill replied that Mr Sathananthan had not sufficiently 
particularised his complaints in a manner which would allow a formal workplace 
investigation. Mr Cargill also attached a guide to raising a workplace issue. 
Mr Sathananthan says he followed this up with a conversation with Mr Cargill on 
17 October 2018, where he was advised that he would need to formalise his 
complaints in a Document of Concerns, and was notified that the A-BSO may file a 
similar complaint against him.

 In mid to late-October, the A-BSO learned of allegations against her that she had 
misused her corporate credit card (PCard).








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 On 21 October 2018, the A-BSO submitted the first Document of Concerns (the 
First A-BSO Complaint) against Mr Sathananthan. Those concerns included
allegations that: he had attended her house uninvited; he had spoken and behaved 
inappropriately; he was inappropriately tracking her; he was monitoring her work 
performance; and he had yelled at her.

 On 29 October 2018, Mr Cargill implemented new measures to distance 
Mr Sathananthan and the A-BSO in the workplace. This involved changing support 
lines, so that Mr Sathananthan would receive BSO support from the particular 
Perth-based BSO earlier referenced by Mr Sathananthan and the A-BSO would 
provide BSO support to other BDMs in BT’s WA/SA offices. Other measures 
taken by BT around this time included ensuring Mr Sathananthan and the A-BSO
would not be alone in meetings, that they could attend meetings via phone or 
videoconference when possible, and creating a shared inbox to which BDMs could 
send support requests so that Mr Sathananthan would not need to email the A-BSO
directly. I will also return to the significance of these and other measures in due 
course.

 At some point in October or November 2018, after the First A-BSO Complaint had 
been filed, Mr Sathananthan approached the A-BSO to discuss repayment of the 
$750 loan he had advanced in June 2018. The tenor of this conversation is 
contested by the A-BSO, who asserts he threatened her with debt collectors, and 
Mr Sathananthan, who states he simply inquired whether she intended to repay the 
loan. The evidence before the Commission is that the A-BSO repaid the loan soon 
after this discussion occurred. 

 On 4 November 2018, Mr Sathananthan submitted a Document of Concerns
(the Sathananthan Complaint) against the A-BSO. This raised concerns about: the 
level of BSO support provided by the A-BSO and the impact this was having on 
team morale and sales; the flow on effects for his work-life balance, including 
working weekly hours in excess of the National Employment Standards; the A-
BSO’s alleged rude and disrespectful behaviour; the A-BSO’s alleged unreliability 
and potential fraud; and the alleged invasion of his personal life by the A-BSO.

 On 5 November 2018, Mr Sathananthan was provided a letter of allegations arising 
from the First A-BSO Complaint. He provided a response to Ms Taddeo by email 
the same day. 

 On 6 November 2018, Mr Sathananthan provided Ms Taddeo with more detail to 
his responses from the previous day and raises concerns about both him and the A-
BSO attending a work-related Christmas event in December. 

 On 9 November 2018 Mr Sathananthan provided further detail in reply to the A-
BSO’s complaints to Ms Taddeo. According to Ms Taddeo, this meeting went from 
1:30 pm to 3:30 pm. Her evidence was that during this meeting she informed 
Mr Sathananthan that the complaints he had made about the A-BSO were 
performance related, not conduct related, and as such they were referred back to 
Mr Cargill as the People Leader.

 On 26 November 2018, Mr Dwyer - the other Adelaide-based BDM, commenced 
paternity leave. This leave was projected to last until mid-February 2018.

 On 30 November 2018, Mr Sathananthan was advised of the outcome of the 
First A-BSO Complaint via video conference with Ms Taddeo and Mr Cargill. Of 
the five allegations made against him, only two were substantiated: namely, that he 








[2019] FWC 5583

12

had been tracking the times when the A-BSO was in the office, and that he was 
monitoring her work performance. The remaining three allegations were 
unsubstantiated. Mr Sathananthan says he continued on the conference with
Mr Cargill after Ms Taddeo had left, and says that Mr Cargill suggested that 
Mr Sathananthan “duck, weave, bob” in relation to facing any further complaints of 
the A-BSO and suggested that the A-BSO had not presented matters in a 
forthcoming manner.9 I find on balance that a conversation to that effect occurred. 
Mr Sathananthan was also provided with a written letter of outcome on this day 
which advised, in addition to the allegations and findings, that the concerns 
expressed in the Sathananthan Complaint about the A-BSO’s attendance and 
performance would be handled by her People Leader in line with Westpac policy 
and procedure.

 On 4 December 2018, the A-BSO received a letter informing her of the outcome of 
the investigation into the First A-BSO Complaint. An outcome meeting was 
conducted with the A-BSO, her partner as support, Mr Cargill and Ms Taddeo.

 On 14 December 2018, both the A-BSO and Mr Sathananthan attended the BT
Christmas event. Mr Sathananthan alleges that the A-BSO approached him in 
private, after which he told the A-BSO that he was unwilling to have any 
conversation without HR, a manager, or his lawyer present. The A-BSO alleges 
that Mr Sathananthan actually threatened her that she should get a lawyer. I will 
later return briefly to this disputed exchange.

 During the period 4 to 8 February 2019, the Perth-based BSO went on annual leave 
and the A-BSO was assigned to provide BSO support to Mr Sathananthan. 
Mr Cargill directed Mr Sathananthan to communicate to the A-BSO only via email 
and only during work hours. It is clear that Mr Sathananthan did make some phone 
calls to the A-BSO during this period. He contends this only occurred when the A-
BSO was not responsive to emails and he was required to communicate via a BT 
landline for work purposes. The A-BSO contends Mr Sathananthan was continuing 
to monitor her movements and would contact her immediately upon her leaving the 
office.

 On 7 February 2019 the A-BSO had a car accident, allegedly due to the stress of 
receiving a call from Mr Sathananthan whilst driving. This is speculative at best.

 On 10 February 2019, the A-BSO submitted a second Document of Concerns 
against Mr Sathananthan (the Second A-BSO Complaint). The Second A-
BSO Complaint raised a number alleged behaviours by Mr Sathananthan towards 
the A-BSO. These alleged behaviours included: telling her to “get a lawyer” during 
the BT Christmas party; making calls to her for matters which could and should 
have been dealt with by email; setting “cryptic” and “misleading” tasks for her; and 
generally not following the agreed communication structure put in place by BT.

 On 28 February 2019, Mr Sathananthan was made aware of the Second A-
BSO Complaint. A meeting also took place on 28 February between 
Mr Sathananthan, Mr Cargill and Mr Wilson - who appears to be a member of 
BT’s HR team. Certain comments made during this meeting attributed to 
Mr Cargill by Mr Sathananthan are contested, including: “[the A-BSO] is under a 
lot of pressure with this PCard issue…”, “these things can be used as a weapon 

                                               
9 Transcript PN525-526.








[2019] FWC 5583

13

against trying to deal with another issue (the PCard investigation)”, and “She is 
completely fucking mental. She’s trying every diversionary tactic to make the 
PCard thing go away.” Mr Cargill refutes these allegations, stating he did not make 
them or, in at least one case, they were actually Mr Sathananthan’s words.

 On 6 March 2019, Mr Dwyer, the other Adelaide-based BDM, resigned from BT.

 On around 7-11 March 2019, Mr Sathananthan contends he suffered a “mental 
breakdown” due to the combined pressure of the A-BSO’s behaviour, his excessive 
working hours and an alleged failure to act by BT. Mr Sathananthan further 
contends that this episode, combined with BT’s alleged failure to address his 
concerns, resulted in him concluding that he had no alternative but to resign from 
his employment.

 The next day, 12 March 2019, Mr Sathananthan tendered his resignation to 
Mr Cargill with one month’s notice. This resignation was accepted by Mr Cargill.
Mr Sathananthan’s last day with BT would be 12 April 2019.

 On 20 March 2019, Mr Sathananthan sent an email to Mr Cargill stating, amongst 
other matters, that he was resigning under duress due to the excessive workload 
required of him with Mr Dwyer’s departure and the A-BSO’s alleged poor 
performance, BT’s failure to support him to address this workload, and the 
vexatious complaints made against him.

 On 21 March 2019, Mr Sathananthan was notified of the investigation outcome 
from the Second A-BSO Complaint. The allegations made in this complaint were 
also found to be unsubstantiated and no further action would be taken by BT. The 
letter did recommend a facilitated conversation between Mr Sathananthan and the 
A-BSO given the two were required to work in the same office.

 During his notice period a meeting took place between the Adelaide and Perth BT 
teams, with Mr Sathananthan and the A-BSO attending by phone. During that 
meeting Mr Sathananthan allegedly walked past the A-BSO’s desk and told her to 
“pay attention”; a proposition he denies. It is probable that an exchange of some 
description took place but I am unable to make any definitive finding given the 
state of the evidence.

 On 28 March 2019, Mr Sathananthan attended a farewell function for Mr Dwyer at 
a hotel in Adelaide. Mr Cargill was also an attendee at this function and used the 
occasion to announce Mr Sathananthan’s resignation to the broader SA team. 
Mr Sathananthan gave a farewell speech.

 After the function on 28 March 2019, Mr Sathananthan drove Mr Cargill to the 
airport. Mr Sathananthan again aired his concerns about the A-BSO’s behaviours 
and the impact these had on him. He alleged that during the journey Mr Cargill said 
words to the effect that “[the A-BSO] has now cost me two quality BDMs.” This is 
possible but there is no direct evidence to support the notion that Mr Dwyer’s 
departure was related to the A-BSO’s work performance.

 On 11 April 2019, his penultimate day at BT, the Applicant sent a farewell email to 
his colleagues. This email was friendly in nature and specifically thanked various 
people. That evening, Mr Sathananthan sent an email to the Westpac CEO, 
Mr Hartzer detailing his concerns and what he described as a toxic work 
environment in the Adelaide office. That day Mr Sathananthan also completed an 
online exit interview during which he provided similar feedback.








[2019] FWC 5583

14

 On 12 April 2019 Mr Sathananthan worked his last day with BT. Mr Cargill 
authorised a company funded farewell drinks as a token of BT’s appreciation.

 As at the conclusion of the employment relationship, Mr Sathananthan was paid 
remuneration of $137,970 per annum, inclusive of superannuation. He was also 
paid a discretionary bonus in the period leading up to the resignation.

4.2 The relationship between Mr Sathananthan and the A-BSO

[26] It is clear that both a personal friendship and a professional relationship existed 
between Mr Sathananthan and the A-BSO for periods during Mr Sathananthan’s employment 
with BT. It is not necessary or appropriate to make any detailed findings regarding the scope 
and degree of the personal aspects of the relationship. However, it is necessary to make some 
findings regarding certain alleged interactions inside and outside the workplace.

[27] I turn first to the professional element. The genesis of this relationship appears to have 
been when Mr Sathananthan was based in Adelaide as a Customer Relations Consultant and 
the A-BSO was working in BT’s Sydney office. As part of her role, the A-BSO was able to 
contact Mr Sathananthan by phone or email as a life insurance “subject-matter expert” who 
was able to assist with various queries. The two developed a rapport and Mr Sathananthan 
remained the A-BSO’s preferred source of assistance, despite changes in Mr Sathananthan’s 
role and location. 

[28] The pair maintained this mentor-mentee relationship after Mr Sathananthan took up 
the BDM position in Perth and that relationship continued upon his relocation to Adelaide. 

[29] It is also clear on the evidence that whilst in Perth, Mr Sathananthan strongly 
advocated for the A-BSO to be given the (then) vacant Business Support Officer position 
based in the Adelaide office and that this was influential in her obtaining that role.

[30] When the personal friendship deteriorated in or around July 2018 that fact, and some 
of the associated events and conduct of the A-BSO, led to the professional relationship also 
deteriorating and despite the Applicant’s contrary position, I find that this impacted to a 
degree upon Mr Sathananthan’s assessment and attitude towards her. It is also clear that the 
A-BSO’s attitude and conduct was impacted by the end of that friendship and subsequent 
events.

[31] Mr Sathananthan’s attendance at the A-BSO’s home on 3 July 2018, as summarised in 
the chronology, is highly contested and requires findings of fact. Three primary contests arise: 
the circumstances of the A-BSO working from home; the circumstances of Mr Sathananthan’s 
attendance at her home; and whether during that visit the A-BSO said words to the effect of 
“If I go down, I’m taking you down with me.” I deal with these in turn.

[32] Mr Sathananthan contended the A-BSO worked from home on 3 July 2018 because 
she slept in and made a false “sick leave” request to Mr Cargill. This sets the context for the 
events of that day and I find this inherently plausible, at least to the extent that the A-BSO
was not completely honest about her request not to attend the workplace on that day.
Contemporaneous text messages strongly suggest that the A-BSO did indeed sleep through 








[2019] FWC 5583

15

her alarm and that she did contact Mr Cargill that morning.10 These also indicate that the A-
BSO sought to work from home primarily because she slept in, rather than because her sore 
shoulder prevented her from attending the workplace.

[33] Similarly, I find that the A-BSO invited Mr Sathananthan to her home, as opposed to 
attending uninvited. Mr Sathananthan’s contention that the A-BSO felt guilty about falsely 
claiming “sick leave” and sought his counsel in person, the condition precedent for his 
attendance at her home, is plausible and on the balance of probabilities I find that this was the 
case. The A-BSO could not adequately explain the stark difference between a text message 
sent to Mr Sathananthan later on 3 July 2018 which read: “In all seriousness.. thank you for 
today.. better yet, for everything! Now over to me for some serious [A-BSO] revamp”11 and 
the suggestion in her witness statement that Mr Sathananthan attended her home uninvited, 
acted in a threatening manner, and made her cry uncontrollably.12 The gulf between the A-
BSO’s contemporaneous communication and her witness statement, and the poor attempt to 
portray that Mr Sathananthan only knew where she lived because of having picked her up on 
one occasion for work, did not assist her credibility on this point. I do not doubt that 
Mr Sathananthan, at the A-BSO’s request, attended her home on 3 July 2018 to discuss her 
work situation.

[34] Finally, I need to consider whether Mr Sathananthan was subject to any “threats”
during this visit. Mr Sathananthan contended that while counselling the A-BSO at her home 
she made a statement that “If I go down, I’m taking you down with me.”13 The A-BSO’s 
evidence was that she could not recall making that statement.14 Consistent with my 
observations on the witnesses, I prefer Mr Sathananthan’s evidence when in conflict with the 
A-BSO’s. The fact that the A-BSO was concerned about her work performance at this time is 
also consistent with the objective evidence and the overall circumstances operating at this 
time. On the balance of probabilities, I find that the A-BSO made a statement to 
Mr Sathananthan along the lines he has suggested.

[35] On 5 July 2018, two days after the statement was made, Mr Sathananthan sent the 
following message to the A-BSO seeking to unequivocally end their professional (mentoring) 
and personal relationship:

“Don’t ever:
 Ask me for help again.
 Seek my input again.
 Vent to me again.
 Seek my counsel again.
 Speak to me again (unless absolutely necessary in your capacity as a BSO 

supporting me as a BDM and my panel)
 Expect and rely on my support again / “have your back”
 Seek my coaching/mentoring again. 

Ever.

                                               
10 Annexure 4 of Exhibit A1.
11 Annexure 5 of Exhibit A1.
12 Exhibit R3 at para 35.
13 Exhibit A1 at para 24.
14 Transcript PN1801-1803.








[2019] FWC 5583

16

I am done.
We are done. In both a professional and personal sense.
Please delete this number. It is for private use only for friends and family.”15

[36] Despite the above request, it is the case that the A-BSO contacted Mr Sathananthan 
outside of the workplace on some occasions after the cessation of the personal friendship.

[37] The “parting gift” given by Mr Sathananthan, and accepted by the A-BSO, also merits 
brief consideration. The gift was given as part of a 1 August 2018 exchange where 
Mr Sathananthan repeated his intention that the two share no further relationship other than as 
required for work.16 The gift, a necklace from Tiffany & Co valued at approximately $660,17

can fairly be considered a piece of relatively “high-end” jewellery given the circumstances. 
Mr Sathananthan’s evidence was that he had originally bought the necklace intending to give 
it to the A-BSO for her birthday but instead gave it as a “parting gift” at his cessation of their 
relationship. Mr Sathananthan considers himself a generous person and the evidence in this 
matter supports such a conclusion.18 However, the circumstance of giving the A-BSO a gift of 
this nature during a discussion where Mr Sathananthan was seeking to confirm the end their 
relationship was capable of sending mixed signals. Accepting the gift also does not sit well 
with the competing narrative from the A-BSO about who it was that was seeking to end the 
relationship and seeking have it continue. Ultimately, the giving of the gift by 
Mr Sathananthan and the acceptance of this gift by the A-BSO was perhaps unusual in the 
circumstances and does not assist the adoption of the separate narratives advanced by either 
person.

[38] There are competing allegations about the nature and extent of the personal friendship 
between Mr Sathananthan and the A-BSO, who initiated its cessation, and various 
manifestations of that relationship. Based on the evidence before me it is clear that both a 
personal and a professional relationship existed at times between Mr Sathananthan and the A-
BSO. I make no finding as to the nature of the personal friendship, other than observe that it 
appears to have been consensual and mutual. It was not suggested by either party that the 
personal aspects of the relationship itself were improper. I find that the breakdown of the 
professional relationship was in both cases primarily, but not completely, driven by the 
breakdown of their personal friendship. Based upon all of the evidence, and for reasons 
previously set out, I do not accept BT’s proposition, advanced in this case but not supported 
by its own earlier investigation, that Mr Sathananthan attended the A-BSO’s home without 
invitation. I accept that the A-BSO made the statement to Mr Sathananthan on 3 July 2018 as 
he contends, and I find that Mr Sathananthan sought to end both the personal and the 
professional relationship (except as strictly required for work) as early as 5 July 2018 and 
reiterated such on 1 August 2018, notwithstanding his provision of the “parting gift”.

[39] It is also clear on the evidence that Mr Sathananthan commenced to record 
observations about the A-BSO work attendance and other perceived deficiencies in her work 
performance. I will return to the appropriateness of doing so. It is also clear that this became 

                                               
15 Annexure 6 of Exhibit A1.
16 Exhibit A2 at para 17.
17 Annexure 1 of Exhibit R3.
18 For example, Exhibit A2 at para 30(f). Mr Sathananthan variously provided gifts of concert tickets and other personal 
items to colleagues, and on occasions, to their families. 








[2019] FWC 5583

17

known to the A-BSO and others in the workplace in mid-September 2018 and this would 
reasonably have raised concerns for both BT and the A-BSO.

4.3 The investigations of Mr Sathananthan’s and the A-BSO’s complaints

[40] Both Mr Sathananthan and the A-BSO made complaints about each other to BT. 
Initially these complaints were made informally; however as the working relationship 
between the pair further deteriorated, formal complaints were made. Before commenting on 
the investigation process itself and its impact upon the present matter, it is helpful to generally 
summarise each complaint and any conclusions reached by BT at the time.

The A-BSO’s complaints about Mr Sathananthan

[41] The A-BSO made two formal complaints against Mr Sathananthan as follows.

[42] The A-BSO’s first complaint (the First A-BSO Complaint) was lodged on 21 October 
2018. The First A-BSO Complaint alleged, amongst other things, that:

 On a day when she was working from home, Mr Sathananthan attended her house 
uninvited to question her for working from home (Allegation 1);

 Mr Sathananthan had spoken and behaved inappropriately toward the A-BSO when 
the two of them were collecting work materials from his car (Allegation 2);

 Mr Sathananthan was tracking the times she entered and left the workplace, even 
though she did not report to him (Allegation 3); and

 Mr Sathananthan was keeping files on his computer which tracked aspects of her 
work performance, and these were made visible during a team meeting (Allegation 
4); and

 Mr Sathananthan yelled at the A-BSO and made her uncomfortable prior to a 
meeting she had with a client as he felt she would “ruin the relationships [he] had 
built” (Allegation 5).

[43] The First A-BSO Complaint was formally investigated by BT. Mr Sathananthan 
attended a meeting of the Case Management Team with Ms Taddeo on 5 November 2018, 
after which he also provided a written response to the allegations.

[44] The outcome of the First A-BSO Complaint investigation was formally communicated 
to Mr Sathananthan by letter on 30 November 2018. Allegations 1, 2 and 5 were not 
substantiated, while Allegations 3 and 4 were substantiated. The outcome of this investigation 
was that formal disciplinary action would not be taken, although Mr Sathananthan was 
warned that it was not appropriate for him to monitor and collect data on the A-BSO’s 
attendance and performance. 

[45] The A-BSO’s second complaint (the Second A-BSO Complaint) was lodged on 
10 February 2019. The Second A-BSO Complaint alleged Mr Sathananthan had behaved 
inappropriately toward the A-BSO in the workplace by:

 Advising her to “get a lawyer” during the team Christmas party on 14 December 
2018;








[2019] FWC 5583

18

 Calling her from a private number to discuss work-related matters which could 
have been dealt with by email (after controls were put in place to ensure the two 
could communicate, when required, by email); and

 Not following the above agreed structure when communicating with her.

[46] The Second A-BSO Complaint was formally investigated by BT. The outcome of the 
Second A-BSO Complaint was communicated to Mr Sathananthan by letter on 21 March 
2019. I note that this date is after Mr Sathananthan provided his notice of resignation. This 
letter communicated that the allegations were unsubstantiated as the parties provided different 
accounts and there were no corroborating witnesses. While no further action would be taken, 
it was BT’s view the two should participate in a facilitated conversation. 

[47] I consider, based upon evidence now before the Commission, that the first of these 
allegations is a misunderstanding by the A-BSO about what was being communicated by 
Mr Sathananthan. The other two allegations have some factual foundation; albeit that there 
was no malicious breach of the arrangements by the Applicant who was attempting to have 
work undertaken in circumstances where he considered that the A-BSO was not being 
responsive to his support requirements. Both perspectives are likely to be legitimate to some 
degree. 

Mr Sathananthan’s complaints about the A-BSO

[48] Before discussing Mr Sathananthan’s formal complaint against the A-BSO, it is useful 
to repeat certain aspects of the factual scenario for context, insofar as they represent 
‘informal’ complaints about the A-BSO. 

[49] On 5 July 2018, Mr Sathananthan emailed Mr Cargill (and another person) expressing 
concerns about the A-BSO’s performance. That email contained the following statement
referring to the A-BSO:

“Really disappointing after the fiasco on Tuesday. My read on it is she’s an 
underutilised resource. We’re simply not engaging her enough, or holding her 
accountable. She needs structure and non-negotiable goals. If she responds then 
fantastic. If not, it’s for DC to determine the appropriate course of action.”19

[50] On 20 September 2018, Mr Cargill conducted a “Guided Questionnaire” with 
Mr Sathananthan (as well as a separate questionnaire with the A-BSO on the same day). 
Mr Sathananthan and Mr Cargill both kept notes from this discussion and both documents 
were produced to the Commission.20 Common amongst the two sets of notes are the following 
concerns raised by Mr Sathananthan:

 A lack of support from the A-BSO;

 That Mr Sathananthan felt he had to perform both BSO and BDM duties;

                                               
19 Annexure 7 of Exhibit A1.
20 Annexure 10 of Exhibit A1 and Annexure 5 of Exhibit R5 respectively.








[2019] FWC 5583

19

 That the A-BSO had misused her corporate credit card, implicating 
Mr Sathananthan in the process;21 and

 That the A-BSO was behaving poorly in the workplace, lacked integrity and that 
she could not be trusted. 

[51] I also note that during the Guided Questionnaire Mr Sathananthan expressed concerns 
regarding his work-life balance, his current working hours and the potential impact a 
colleague’s imminent parental leave may have on his mental and physical health.

[52] Mr Sathananthan submitted a formal complaint against the A-BSO on 
4 November 2018 (the Sathananthan Complaint). For context, I have reproduced 
Mr Sathananthan’s concerns, including the lead-in question, below:

“What is it specifically that you have been concerned about? It might be one incident, 
or a number of things that have contributed to your concern.

 Minimal support provided as requested and as per role requirements.

 What little support provided is often lacking in quality, negatively impacting 
clients.

 Lack of performance by BSO negatively impacting sales outcomes.

 Slack has to be picked up by myself and others in the team, resulting in poor team 
harmony and work-life balance.

 Blatantly rude, disrespectful, and argumentative.

 Lack of reliability.

 Dishonesty.

 Poor representation of team brand.

 Potential fraud.

 Invasion of my personal life, eroding what skerrick of work-life balance I have, and 
having flow-on effects on my abilities at work.

 Experienced direct impacts since re-joining the SA Distribution team on 12 Jun; 
however 

 My experience has been consistent with concerns flagged by other team members 
of the SA Distribution Team [six names provided] since [the A-BSO] joined the 
team in Oct 2017.” (emphasis in original)

[53] Mr Sathananthan’s formal complaint also included a number of examples to 
substantiate his concerns. The examples were drawn from both the A-BSO’s alleged actions 
at work and the A-BSO’s alleged actions outside of work and included the following:

“7. 3 Jul Blatantly lied about Sick Leave, later confessing to the lie. Absence 
negatively impacted Adviser onboarding appointment.

                                               
21 One the items of expenditure claimed by the A-BSO was understood by the Applicant to involve a meal or coffee with 
himself and the A-BSO, which he disputed.








[2019] FWC 5583

20

6 Aug Granted ad-hoc Annual Leave/Personal Leave. Weeks earlier had 
advised colleagues she was booked to attend a part assuming 6 Aug was a 
national Public Holiday, then lamented this was not applicable in SA.

24/27 Aug Dubious Sick Leave. Confirmed by Tim Rogers (State 
Manager) as attending V8 car race over the weekend (25/26 Aug).

… …

9. As per PCard report found on printer, seemingly using Corporate Card for non-
business related expenses (multiple transactions at “Booknook & Bean coffee 
shop downstairs; multiple transactions classed as “Purchase Error”; transaction 
on 20 Jun classed as “Meeting with Ravi” which I was not party to.

10. 31 Jul Relentless in calling from 11pm to my personal phone - repeatedly 
calling back despite me hanging up - to claim being bullied by members of SA 
Distribution Team. Also made inappropriate advances towards me. Was clearly 
intoxicated. Eventually closed call at 2am. Next day commenced work at 11am 
(I still started at 8am to honour appointments), missing Adviser onboarding 
appointment for which she was booked well in advance (which I had to pick up 
the slack for). Later that afternoon I “cut the cord”.22

[54] No letter of allegations was put to the A-BSO in relation to the 
Sathananthan Complaint and it was not investigated by BT, other than with respect to the 
PCard issue. This was plainly a different process to that undertaken with the First A-BSO 
Complaint and Second A-BSO Complaint23 and I will return to the significance of this 
shortly.

[55] The outcome of the Sathananthan Complaint was apparently communicated to him on 
or around 9 November 2018 when Ms Taddeo conducted a phone interview with 
Mr Sathananthan. During that interview Ms Taddeo expressed her view that the concerns 
raised by Mr Sathananthan were performance, rather than conduct, matters and that they
would be more appropriately dealt with by Mr Cargill as the A-BSO’s People Leader. 
Ms Taddeo, in separate correspondence, advised Mr Cargill to consider an informal 
performance improvement plan and a “file note conversation” with the A-BSO to resolve any 
issues.24 This was not made known to Mr Sathananthan.

[56] No formal findings were made regarding Mr Sathananthan’s allegations against the A-
BSO and no letter of outcome was provided to him.

[57] It is clear that BT took the allegations made by the A-BSO seriously and subjected 
these to formal investigations. This was appropriate and necessary given the nature of the 
allegations and the requirements of the relevant policies. The findings made that most of these 
allegations was unsubstantiated was reasonably open to BT given the nature of that 
investigation and accords with the findings of the Commission, which by contrast were based 

                                               
22 Annexure 14 of Exhibit A1.
23 For clarity, the Second A-BSO Complaint had not been lodged at this point. 
24 Annexure 5 of Exhibit R1.








[2019] FWC 5583

21

upon sworn and challenged evidence. In relation to the findings that were made about 
Mr Sathananthan’s tracking of the A-BSO, I also consider that these were reasonable and 
proportionate. That is, no disciplinary action was taken and this is consistent with the fact that 
Mr Sathananthan was concerned about the perceived impact of the A-BSO’s performance was 
having upon his workload and was keen to have some defence in light of the events of 3 July 
2018. The fact that Mr Cargill was based in Perth and was not present to directly monitor 
events in the Adelaide Office is also relevant. However, Mr Sathananthan was also warned 
that it was not his place to monitor and collect data about the A-BSO given that he was not 
her Manager. This was also clearly appropriate given that role and the fact that the breakdown 
in the personal friendship meant that there was always going to be some subjectivity in any 
such assessment.

[58] In relation to Mr Sathananthan’s allegations concerning the A-BSO, BT largely took 
the view that these were performance concerns that should be addressed through the A-BSO’s 
People Leader, Mr Cargill. The sustainability of this position is at one level questionable, 
given that some of these allegations could properly be considered as conduct issues; as 
ultimately conceded by Ms Taddeo.25 I observe that the allegations, with some exceptions,
were not complaints about conduct by the A-BSO directed towards Mr Sathananthan and 
whilst they should have been properly investigated and not treated only as performance 
matters, the non-involvement of the Applicant in any process that was undertaken by BT is 
less significant in that particular context.

[59] However, there were also some allegations of conduct by the A-BSO directed towards 
Mr Sathananthan at the workplace that should have been properly investigated by BT
including by putting these matters to the A-BSO and including Mr Sathananthan in the 
process. 

[60] As part of his Document of Concerns, Mr Sathananthan also identified that he was 
falsely named in an inappropriate transaction on the A-BSO’s PCard. The issue about the 
PCard, which had been reported by a whistle-blower not identified to local management, was 
investigated by BT’s Group Investigations team26 and led to some disciplinary outcomes not 
involving the Applicant. The fact that this investigation was conducted outside of HR and 
local management under the whistle-blower regime meant that Mr Sathananthan was not 
interviewed or advised of the investigation or the outcomes. This included the notion that he 
was named, at least by association, in one aspect.

[61] This leaves the matters raised in point 10 of Mr Sathananthan’s formal complaint 
against the A-BSO. This was clearly an issue involving, amongst other matters, alleged 
conduct that was directed towards Mr Sathananthan. BT apparently took the view that this 
involved the personal lives of their employees and I accept that there is some limitation upon 
the degree to which an employer can reasonably be expected to attempt to regulate the private 
lives of their employees. There is also a limit to the degree than an employer has the right to 
do so.27

[62] However, BT took no steps at all to ascertain any linkage to the workplace and this is 
to be contrasted with the approach taken to at least one of the A-BSO’s allegations against the 

                                               
25 Transcript PN1341-1348.
26 Transcript PN1391, 1413-1419.
27 Rose v Telstra AIRC Print Q9292, 4 December; Farquharson v Qantas Airways Limited, PR971685 (2006) 155 IR 22.








[2019] FWC 5583

22

Applicant. There was in fact no investigation and the differential treatment of this aspect, 
particularly without any proper explanation to Mr Sathananthan, would reasonably have 
caused anxiety for the Applicant and reinforced concerns that his complaints were not going 
to be addressed by BT. 

4.4 Actions taken by BT to address Mr Sathananthan’s other concerns

[63] I have set out earlier, the substance of the response implemented by BT to address 
Mr Sathananthan’s other concerns. Leaving aside the workload and working hours aspects, 
the initiatives to reduce the degree of direct contact between the Applicant and the A-BSO
were prudent and this included allocating the Perth-based BSO support. Although this 
involved dealing with time zone differences28 and was less than ideal, the allocation of the 
support preferred by Mr Sathananthan was partially responsive to his concerns.

[64] BT also suggested that Mr Sathananthan access its Employee Assistance Program 
(EAP) and this was not utilised by the Applicant as he was already undergoing some external 
counselling.

4.5 Mr Sathananthan’s workload and working hours

[65] There is little documented evidence about Mr Sathananthan’s actual working hours. It 
is clear that he raised at various times, both when in Perth and when in Adelaide, that he 
considered that he was undertaking excessive hours and this was having a very significant 
impact upon him. This included seeking some assurances that he would not be required to 
work excessive hours as part of his decision to accept the Adelaide BDM position.

[66] Given the nature of the BDM position, no records of attendance or working hours 
were apparently retained by the parties29 and it is evident that there was some flexibility as to 
working hours and the capacity to take some personal time during the nominal working hours. 
I have also taken into account Mr Cargill’s evidence that Applicant had, at least in theory, one 
of the best support (BSO to BDM) ratios and had relatively lower sales targets than the other 
BDMs in his region. However, these aspects do not always go directly to working hours and 
Mr Sathananthan’s evidence was that he was regularly working excessive hours was 
consistent and convincing. 

[67] Mr Sathananthan reported on a number of occasions to BT in the lead up to his 
resignation that he was, due to circumstances including the nature of the BSO support, 
working in excess of 70 hours per week. The evidence does not reveal that these statements 
were questioned at the time.

[68] These statements included that during the Guided Questionnaire which took place on 
20 September 2018, Mr Sathananthan expressed to Mr Cargill that he was working in excess 
of 70 hours per week.30 On 15 October 2018 he further expressed to BT that he was 
                                               
28 The degree of overlap between working days in each location varied depending upon the time of year and this would 

reasonably have impacted upon the effectiveness of the arrangements.
29 There was some suggestion that building or computer access records may have been held by BT, however these were not 
produced (and were not sought) and would only have provided some material going to working hours rather than a complete 

picture given the nature of the BDM role.
30 Annexure 10 of Exhibit A1. The fact that Mr Sathananthan raised the issue is also confirmed by Mr Cargill - Annexure 5 of 

Exhibit R3.








[2019] FWC 5583

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“…managing the workload of a BDM and BSO (something that can only be achieved with 
excessive, unrewarded hours well beyond my contractual employment terms).”31 The 
Document of Concerns lodged by Mr Sathananthan on 4 November 2018 also stated that he 
raised concerns about working hours in excess of the National Employment Standards with 
his People Leader.32 On 5 November 2018 Mr Sathananthan, by email to Ms Taddeo, 
expressed that “In order to pick up the slack [due to the A-BSO’s performance] I have had to 
work in excess of 70hrs per week (including working on weekends, Public Holidays, and 
Annual Leave)”, as part of that same email he further states: “I have serious concerns there 
will come a point in time where I am no longer able to cope, and suffer a major episode.” 33

The substance of these discussions appears to be consistent with the evidence of the 
Respondent, albeit with some differences as to the detail, such as Ms Taddeo’s concession 
that Mr Sathananthan had expressed “grave concerns” about working excessive hours, but that 
she did nothing to directly address those concerns other than notify Mr Cargill.34 Although 
Mr Cargill during his oral evidence rejected the notion that Mr Sathananthan was working 
excessive hours, the Applicant’s evidence on these matters was not substantively challenged 
during cross-examination. I observe in that regard that BT challenged the suggestion that 
Mr Sathananthan had been required to work even whilst on annual leave; but the Applicant’s 
evidence that he continued to be contacted by advisors and dealt with their issues in the 
absence of support staff during such periods was credible.35

[69] I am satisfied that in the months leading up to the resignation and for a period before 
that time, Mr Sathananthan was regularly working in excess of 70 hours per week in his role 
as the BDM.

[70] It is also clear on the evidence that BT was aware that Mr Sathananthan had sought 
and was given some assurances as part of his move to the Adelaide BDM position that his:

“… hours should reflect a sensible work/life balance and the guide of 152 hours every 
4 week cycle is what we should be aspiring to. From time to time business 
development roles require some out of normal hours activity and travel as you know, 
but my focus for all of my team is ensuring we are able to achieve our work goals in 
balance with our personal lives and enjoy flexibility accordingly where possible.”36

[71] This was not in the form of a contractual commitment, but consistent both with the 
fact that there was an understanding that Mr Sathananthan’s working hours would reflect a 
reasonable work/life balance and that regularly working in excess of 70 hours per week would 
be objectively unreasonable in the context of his BDM position. 

[72] The evidence is that Mr Cargill recognised the issue and made a direction to 
Mr Sathananthan about his working hours whilst the Applicant was undertaking the Perth 
BDM position, but that the issue was not properly considered or acted upon when raised by 
Mr Sathananthan in relation to the Adelaide BDM role. 

                                               
31 Annexure 13 of Exhibit A1.
32 Annexure 14 of Exhibit A1.
33 Annexure 16 of Exhibit A1.
34 Transcript PN1371-1387.
35 Transcript PN625 to PN629.
36 Mr Sathananthan’s then People Leader - Annexure 1 of Exhibit A1.








[2019] FWC 5583

24

[73] The fact that the other Adelaide based BDM was absent for a period and had resigned 
at the point of the Applicant’s resignation, would also have contributed to the reality that 
these hours would not be addressed by BT, at least in the immediately foreseeable term. This 
must be considered subject to the fact that Mr Sathananthan’s sales targets and client 
responsibilities may not have been formally increased with the absence of his fellow BDM.37

4.6 Mr Sathananthan’s health

[74] There is limited objective evidence about Mr Sathananthan’s health before the 
Commission. The Applicant contends that, due to the stresses arising at work, he began 
experiencing a number of symptoms including panic attacks at various times, eczema, 
shortness of breath, tightness of chest, and alopecia areata.38 During this period 
Mr Sathananthan sought treatment from Dr Sangarapillai Sathananthan, the Applicant’s 
father, who diagnosed him with anxiety.39 The Applicant did not advance any independent 
medical evidence to support his contentions and Dr Sathananthan was not called to give 
evidence on his diagnosis.

[75] BT contends that the Commission should draw a negative inference from the fact that 
the Applicant did not lead any medical evidence and that only indication of medical advice 
was that Mr Sathananthan had stated that his father, a Gastroenterologist, had diagnosed him 
with anxiety. BT suggested Dr Sathananthan’s field of expertise appeared unrelated to the 
medical condition he diagnosed for his son and, as a result, the Commission should treat 
Mr Sathananthan’s health propositions with caution.40

[76] BT did not seriously challenge Mr Sathananthan’s evidence that he had suffered a 
panic attack and his evidence about his symptoms more generally was also convincing. 
However, the absence of objective medical evidence necessitates that I treat the causes of 
such with caution. In that regard, it is the absence of any evidence from Dr Sathananthan
rather than his field of speciality that is most relevant.

[77] As a result, I accept that Mr Sathananthan consistently reported concerns about his 
workload and working hours to BT management and I accept his evidence that in the lead up 
to his resignation that he suffered what he described as a “panic attack”. It is also a reasonable 
inference that his concerns about what was happening, or not happening, about the issues he 
had raised, including his working hours and the departure of his fellow Adelaide-based BDM, 
and the complaints by and against the A-BSO, contributed to his perception of the 
circumstances at that time. 

[78] However, for reasons outlined earlier, I must determine this matter objectively.

5. What is a dismissal for present purposes? 

[79] Section 386 of the FW Act provides as follows:

                                               
37 The evidence of Mr Cargill.
38 Exhibit A1 at paras 90-91.
39 Exhibit A1 at para 92.
40 Closing Submissions of the Respondent at para 46.








[2019] FWC 5583

25

“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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified 
period of time, for a specified task, or for the duration of a specified 
season, and the employment has terminated at the end of the period, on 
completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for 
any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training 
arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her 
remuneration or duties; and

(ii) he or she remains employed with the employer that effected the 
demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind 
referred to in paragraph (2)(a) if a substantial purpose of the employment of the 
person under a contract of that kind is, or was at the time of the person’s 
employment, to avoid the employer’s obligations under this Part.”41

[80] Although applied under the previous Act,42 the following approach of the Full Bench 
of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd43 in 
my view remains generally apposite to the consideration of s.386(1) of the FW Act:

“[21] In this Commission the concepts have been addressed on numerous occasions 
and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full 
Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important 
feature in the question of whether termination is at the initiative of the 
employer is whether the act of an employer results directly or consequentially 

                                               
41 Subsections (2) and (3) are not relevant to this matter and are included only for context.
42 Workplace Relations Act 1996 (Cth).
43 [2006] AIRC 496 (PR973462). 








[2019] FWC 5583

26

in the termination of the employment and that the employment relationship is 
not voluntarily left by the employee. However, it is to be noted that the Full 
Court described it as an important feature. It plainly cannot be the only feature. 
An example will serve to illustrate this point. 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. This 
situation may be contrasted with the position where an employee is told to 
resign or he or she will be terminated. We think that all of the circumstances 
and not only the act of the employer must be examined. These in our view, will 
include the circumstances giving rise to the termination, the seriousness of the 
issues involved and the respective conduct of the employer and the employee. 
In the instant case the uncontested factual findings are that the applicant had 
for almost the whole of his employment performed welding duties; that there 
was no objective threat to his health and safety involved in the requirement that 
he undertake welding duties so long as it was not on a continuous basis and 
that the welding he was required to do was not continuous.” 

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit
(ABB Engineering) it was said:

“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.”

[23] In our view the full statement of reasons in Mohazab which we have set out 
together with the further explanation by Moore J in Rheinberger and the decisions of 
Full Benches of this Commission in Pawel and ABB Engineering require that there to 
be some action on the part of the employer which is either intended to bring the 








[2019] FWC 5583

27

employment to an end or has the probable result of bringing the employment 
relationship to an end. It is not simply a question of whether “the act of the employer 
[resulted] directly or consequentially in the termination of the employment.” Decisions 
which adopt the shorter formulation of the reasons for decision should be treated with 
some caution as they may not give full weight to the decision in Mohazab. In 
determining whether a termination was at the initiative of the employer an objective 
analysis of the employer’s conduct is required to determine whether it was of such a 
nature that resignation was the probable result or that the appellant had no effective or 
real choice but to resign.” (footnotes omitted)

[81] A relatively recent Full Bench reinforced the relevance of the above approach in Bupa 
Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli44 in the following 
terms:

“[33] Notwithstanding that it was clearly established, prior to the enactment of the 
FW Act, that a “forced” resignation could constitute a termination of employment at 
the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a 
way that retained the “termination at the initiative of the employer” formulation but 
separately provided for forced resignation. This was discussed in the Explanatory 
Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be 
dismissed. A person is dismissed if the person's employment with his or her 
employer was terminated on the employer's initiative. This is intended to 
capture case law relating to the meaning of 'termination at the initiative of the 
employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 
200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they 
resigned from their employment but were forced to do so because of conduct, 
or a course of conduct, engaged in by their employer. Conduct includes both an 
act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of 
constructive dismissal, and allow for a finding that an employee was dismissed 
in the following situations:

 where the employee is effectively instructed to resign by the 
employer in the face of a threatened or impending dismissal; or

 where the employee quits their job in response to conduct by the 
employer which gives them no reasonable choice but to resign.”

[34] It is apparent, as was observed in the decision of the Federal Circuit Court 
(Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of 
s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the 
Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith 
Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian 
Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes 
omitted). The body of pre-FW Act decisions concerning “forced” resignations, 

                                               
44 [2017] FWCFB 3491.








[2019] FWC 5583

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including the decisions to which we have earlier referred, has been applied to 
s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility 
Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” 
(footnotes omitted)

[82] Accordingly, the general legal principles to be applied in this case are well settled. 
Stated succinctly, they include:

 The question as to whether the resignation was forced within the meaning of the 
FW Act is a jurisdictional fact that must be established by the applicant;

 A termination at the initiative of the employer involves the conduct (or course of 
conduct) engaged in by the employer as the principal constituting factor leading to 
the termination;

 The employer must have engaged in some conduct that intended to bring the 
employment relationship to an end or had that probable result;

 Conduct includes an omission;45

 Considerable caution should be exercised in treating a resignation as other than 
voluntary where the conduct of the employer is ambiguous and it is necessary to
determine whether the employer’s conduct was of such a nature that resignation 
was the probable result such that the employee had no effective or real choice but 
to resign; and

 In determining the question of whether the termination was at the initiative of the 
employer, an objective analysis of the employer’s conduct is required.

[83] There is no suggestion in this matter that Mr Sathananthan’s resignation was given in 
the heat of the moment or was not expressly intended.46

6. Was Mr Sathananthan dismissed within the meaning of the 
FW Act? 

[84] I accept that BT did not engage in a course of conduct with the intention of bringing
its relationship with Mr Sathananthan to an end. Accordingly, the resignation of the Applicant 
in this matter will be a dismissal only if I objectively consider that the actions of BT had that 
probable result, with Mr Sathananthan having no effective or real choice but to resign.

[85] The fact that Mr Sathananthan gave and served out his notice is relevant but not of 
itself indicative that he had no choice but to resign. That is, I accept the fact that he did work 
through the notice period, including having some minimal engagement with the A-BSO and 
others who had not met his expectations of fair treatment, is potentially an indication that the 
circumstances were not as dire as contended. However, having resigned, there was clearly an 
end to the excessive working hours and other circumstances in sight. Further, during and at 
the end of the notice period, Mr Sathananthan did communicate to management that he 

                                               
45 Section 12 of the FW Act.
46 See Bupa at [35] to [46] and Davidson v The Commonwealth of Australia (represented by the Department of Climate 
Change and Energy Efficiency) [2011] FWAFB 6265 at [18].








[2019] FWC 5583

29

considered that he was forced to take the step of resignation due to the impact upon his health 
and wellbeing. 

[86] In any event, the assessment for present purposes is to be undertaken objectively. 
Based upon my earlier findings, the following was evident at the point that the resignation 
was communicated by Mr Sathananthan to BT:

 The fall-out of the end of the personal friendship continued to have an impact in the 
workplace and upon both Mr Sathananthan’s assessment of the A-BSO’s work 
performance and the A-BSO’s conduct towards him;

 Mr Sathananthan had raised some legitimate concerns about the alleged conduct of 
the A-BSO concerning behaviour towards him that was not properly investigated 
and there was no indication that BT recognised or intended to deal with those 
issues;

 There were some limitations on the capacity of BT to address the out of hours 
conduct matters however there was little engagement with Mr Sathananthan about 
this aspect and there was no exploration of the degree of actual continuing 
workplace connection. There was also no investigation about the conduct of the A-
BSO whilst at work based upon the allegations made by Mr Sathananthan;

 Mr Sathananthan had raised some concerns about the A-BSO that were properly 
matters for her People Leader and not the subject of an investigation that he would 
be involved in;

 Although based upon some legal advice, the monitoring of the A-BSO’s attendance 
and other matters and the fact that this became known in the workplace, 
contributed to the problematic working relationships and provided some substance 
for her concerns in respect of that aspect;

 Mr Sathananthan had been the subject of two complaints by the A-BSO. At the 
time of the resignation, both of these had been investigated with the First A-BSO 
Complaint being dealt with appropriately with reasonable findings made given the 
prevailing circumstances and the Second A-BSO Complaint was not yet 
determined;

 Mr Sathananthan had consistently raised concerns about the impact of these events 
and the level of BSO support upon his workload and wellbeing, and amongst other 
occasions, on 27 July 2018, he indicated to Mr Cargill that “I am at my wits’ end, 
this is having an impact on my health:, “I think I’m done”, and “I can’t go on like 
this”.47 This was some 9 months before the resignation and later on 30 August 
2018, Mr Sathananthan informed BT that the workplace was ‘unsafe”. The same 
concerns were similarly expressed during the 20 September 2018 Guided 
Questionnaire, in which Mr Sathananthan stated he was working in excess of 70 
hours per week and that this was taking a toll on his health. He also expressed to 
HR that he had serious concerns that he may not be able to cope (with the 
workload) and that a major episode could occur. Some measures were implemented 
to provide some different BSO support and alternate contact arrangements between 
the Applicant and the A-BSO for a period and these were partially responsive to 

                                               
47 Exhibit A1 at para 41. These statements, or words to those effects, were confirmed by Mr Cargill.








[2019] FWC 5583

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those issues but did not fundamentally address Mr Sathananthan’s excessive
working hours;

 Mr Sathananthan was regularly working in excess of 70 hours per week in his role 
as the BDM and this was objectively unreasonable in the context of that position 
and the reasonable expectations of the parties;

 The absence and later departure of his fellow Adelaide-based BDM may not have 
directly increased his formal workload but would reasonably have meant that no 
reduction to his excess hours was likely given the absence of any other meaningful 
initiatives by BT; and

 Mr Sathananthan consistently indicated at the time that he was providing his 
resignation under duress so as to focus on his health and well-being.

[87] It is evident to me that BT’s approach to the issues focused upon the breakdown of the 
personal friendship between Mr Sathananthan and the A-BSO and failed to recognise or deal 
with the Applicant’s legitimate concerns about his working hours and those aspects of his 
allegations impacting upon or involving working relationships and conduct.

[88] This is all relevant to the assessment as to whether Mr Sathananthan had any real or 
effective alternative but to resign from his employment at BT. Mr Sathananthan contends that 
the issues stated above, in conjunction with what he says were insufficient responses by BT, 
left him with no option but to resign from his employment. 

[89] BT contends that Mr Cargill had suggested that Mr Sathananthan provide a formal 
document of concerns when first notified of the Applicant’s issues regarding the A-BSO. BT 
also contends that it did not withhold information from the Applicant and that Mr Cargill 
initially tried to work informally with Mr Sathananthan and the A-BSO, and when this did not 
resolve the matter, he escalated it to HR and remained available to support the Applicant. 

[90] BT further contended that the Applicant should have been aware of Westpac’s 
Consequence Management Framework as it was mentioned in the outcome letter48 from the 
First A-BSO Complaint. The framework is mentioned in the following terms:

“Finally, we would also like to acknowledge the attendance and performance concerns 
you have raised in relation to [the A-BSO], specifically in your Document of Concerns 
dated 4 November 2018, will now be managed by appropriately (sic) in line with 
Westpac’s Consequence Management Framework.”

[91] BT posited that Mr Sathananthan did not seek to challenge the outcome of the 
investigation in accordance with this framework, or even inform himself as to the contents of 
that framework. To this end BT submitted that Mr Sathananthan, due to his own failure to 
inform himself of options, cannot be considered to have had no real or effective choice but to 
resign. I note that Mr Sathananthan was not explicitly made aware of any potential “appeal”
rights available within the framework during the 30 November 2018 meeting with Ms Taddeo
and Mr Cargill. In any event, the difficulty with this proposition is that this particular 
document, or set of documents, has not been put before the Commission. I am unable to 
verify the options available to Mr Sathananthan beyond the broad assertions made by BT and 

                                               
48 I also understand that the framework document was available on the staff intranet.








[2019] FWC 5583

31

this proposition, and the availability of any options, was not put by BT to the Applicant
during his evidence. It is also not clear what internal rights, if any, existed for 
Mr Sathananthan to contest the decision not to investigate his complaints against the A-BSO
or the failure to address his excessive working hours.

[92] In the end result, I must consider the conduct of BT in the context that applied in the 
Adelaide office and the circumstances faced by Mr Sathananthan based upon the evidence 
that is before the Commission. It is evident to me that the resignation was the probable result 
of BT’s conduct. Further, and without detracting from the earlier comprehensive discussion, I 
consider that the combination of the excessive working hours and the absence of any real 
recognition of this issue or steps taken by BT to manage this, combined with the absence of 
any indication that BT intended to investigate or deal with those conduct matters raised by 
Mr Sathananthan concerning the A-BSO that were capable of directly impacting upon the 
workplace, are particularly influential in the assessment as to whether that resignation was 
forced. I add that it is only the combination of these events, and the working hours in 
particular, rather than the treatment of the Applicant’s concerns about the A-BSO’s conduct in 
isolation, which has led to the requisite finding.

[93] In all of the circumstances I find that Mr Sathananthan had no effective or real option 
but to resign his employment from BT. I am satisfied that the particular circumstances of this 
matter meet the high threshold required for such a finding. Accordingly, this was a dismissal 
within the meaning of the FW Act.

7. Whether the dismissal was unfair (harsh, unjust or unreasonable) –
s.387 of the FW Act

[94] Given the above findings, I need to consider whether the dismissal of Mr Sathananthan
was unfair.

[95] Section 385 of the FW Act provides as follows: 

“385 What is an unfair dismissal

(1) A person has been unfairly dismissed if the FWC is satisfied that:

(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.”

[96] Given my findings satisfy s.385(1)(a) and the fact that items (c) and (d) are not 
relevant, Mr Sathananthan’s dismissal will be unfair if it is found to be harsh, unjust or 
unreasonable.

[97] Section 387 of the FW Act provides as follows:

“387 Criteria for considering harshness etc.








[2019] FWC 5583

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In considering whether it is satisfied that a dismissal was harsh, unjust or 
unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s 
capacity or conduct (including its effect on the safety and welfare of 
other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason 
related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a 
support person present to assist at any discussions relating to dismissal; 
and

(e) if the dismissal related to unsatisfactory performance by the person—
whether the person had been warned about that unsatisfactory 
performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely 
to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource 
management specialists or expertise in the enterprise would be likely to 
impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[98] It is clear that s.387 of the FW Act contemplates that an overall assessment as to the 
nature of the dismissal must be made by the Commission. In so doing, the FW Act sets out a 
number of considerations that must, where relevant, be weighed up in totality.

[99] It is convenient therefore to use the various provisions of s.387, with reference to the 
relevant circumstances, to outline my consideration of the matter.

Section 387(a) – whether there was a valid reason for the dismissal related to 
Mr Sathananthan’s capacity or conduct (including its effect on the safety and welfare of 
other employees)

[100] Valid in this context is generally considered to be whether there was a sound, 
defensible or well-founded reason for the dismissal. Further, in considering whether a reason 
is valid, the requirement should be applied in the practical sphere of the relationship between 
an employer and an employee where each has rights, privileges, duties and obligations 
conferred and imposed on them. That is, the provisions must be applied in a practical, 
common sense way to ensure that the employer and employee are each treated fairly.49

[101] It is also clear from the authorities that the reason for termination must be defensible 
or justifiable on an objective analysis of the relevant facts before the Commission. That is, it 
is not enough for an employer to rely upon its reasonable belief that the termination was for a 

                                               
49 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 
458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A 

Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].








[2019] FWC 5583

33

valid reason.50 Equally, facts justifying dismissal, which existed at the time of the termination, 
should be considered, even if the employer was unaware of those facts and did not rely on 
them at the time of dismissal.51

[102] During final submissions, BT indicated that a valid reason for the dismissal of 
Mr Sathananthan might be found. It posited that Mr Sathananthan’s behaviours substantiated 
as part of the First A-BSO Complaint, which were deemed by BT to be inappropriate, would 
provide a valid reason for dismissal. This was despite the fact that BT confirmed that it had no 
intention to dismiss Mr Sathananthan. Further, at the conclusion of the First A-BSO 
Complaint, BT provided verbal counselling but did not, at any point, initiate any formal 
disciplinary processes against Mr Sathananthan despite eventually conducting two 
investigations.

[103] I accept that BT is able to rely upon conduct that had occurred but not relied upon at 
the time of the dismissal, but the evidence simply does not support the notion that 
Mr Sathananthan’s conduct or work performance provided a valid reason for dismissal. This 
is not to suggest that his conduct is beyond criticism and I have already made findings about 
the activities undertaken to record the A-BSO’s work attendance and related matters and that 
BT’s response to the issue at the time, to counsel the Applicant, was appropriate.

[104] Having objectively considered all of the relevant circumstances related to 
Mr Sathananthan’s capacity and conduct based upon the findings of the Commission, I am not 
persuaded that there was a valid reason for dismissal.

Section 387(b) – whether Mr Sathananthan was notified of the reasons for dismissal

[105] This consideration requires the Commission to assess whether the applicant concerned 
was relevantly notified of the reasons leading to the dismissal before that decision was 
taken.52

[106] This did not occur.

Section 387(c) – whether Mr Sathananthan was given an opportunity to respond to any 
reason related to his capacity or conduct 

[107] The process contemplated by the FW Act does not require any formality and is to be 
applied in a common sense way to ensure the employee has been treated fairly. This question 
becomes whether Mr Sathananthan was aware of the precise nature of the employer’s concern 
about his capacity and had a reasonable opportunity to respond to these concerns.53

                                               
50 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 
per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo 

Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 

11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.
51 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v 

McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, 
Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v 

Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.
52 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.
53 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].








[2019] FWC 5583

34

[108] Given that it did not intend to dismiss the Applicant, BT did not take any of the 
necessary steps to warn him or discuss its concerns with Mr Sathananthan in a disciplinary 
context. 

Section 387(d) – any unreasonable refusal by the respondent to allow Mr Sathananthan
a support person

[109] There was no meeting to discuss any concerns held by the employer and no request for 
a support person arose. Accordingly, this consideration is not relevant.

Section 387(e) – if the dismissal is related to unsatisfactory performance by 
Mr Sathananthan – whether he has been warned about that unsatisfactory performance 
before the dismissal.

[110] This consideration relates to performance of the job. Performance in this context 
includes the employee’s capacity to do the work, and the diligence and care taken with that 
work.54

[111] For reasons set out earlier in this decision, I accept that Mr Sathananthan was warned 
to some limited degree about his behaviour in relation to the A-BSO

Section 387(f) – the degree to which the size of the respondent’s enterprise would be 
likely to impact on the procedures followed in effecting the dismissal.

Section 387(g) – the degree to which the absence of dedicated human resource 
management specialists or expertise in the enterprise would be likely to impact on the 
procedures followed in effecting the dismissal.

[112] I deal with these two considerations together.

[113] BT is a large business and with access to dedicated human resource management 
specialists or expertise in the enterprise. To the extent that the processes adopted lead to the 
forced resignation, the circumstances of BT do not represent a mitigating consideration in the 
context of these factors.

Section 387(h) - other matters considered to be relevant

[114] Amongst other considerations, the Commission should consider the impact of the 
dismissal upon the applicant given all of the circumstances. This dismissal meant that 
Mr Sathananthan lost his employment with the normal consequences of that event. This 
occurred without a valid reason for dismissal.

[115] BT’s conduct, including that of Mr Cargill, towards Mr Sathananthan during the notice 
period, was appropriate and reflects upon them well. I have taken this into account.

                                               
54 See Anetta v Ansett Australia Ltd (2000) 98 IR 233.








[2019] FWC 5583

35

Conclusion on nature of dismissal

[116] The FW Act requires a global assessment having regard to the various relevant 
statutory considerations. In that context, procedural unfairness is an important consideration 
given the provisions of the FW Act but does not necessarily mean that the dismissal was 
unfair. This is reinforced by the objects relating to Part 3-2 Unfair Dismissal of the FW Act in 
s.381 which relevantly provides as follows:

“381 Object of the Part 

… …

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the 
manner of deciding on and working out such remedies, are intended to ensure that a 
“fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and 
Holloway v Australian Workers’ Union [1971] AR (NSW) 95.”

[117] As revealed in various decisions of the Commission (and the Court), each case must 
be considered in its own circumstances and it is appropriate, amongst other factors, to have 
regard to whether the procedural deficiencies made any difference to the fairness of the 
outcome.55 In this case, given the circumstances that have led to the forced resignation, the 
dismissal as found by the Commission was substantively and procedurally unfair. 

[118] Given the facts of the matter and the statutory considerations, I am satisfied that the 
dismissal of Mr Sathananthan was harsh, unjust and unreasonable. It was therefore unfair 
within the meaning of the FW Act.

8. Remedy

[119] Mr Sathananthan does not seek reinstatement to his former position, but rather, 
compensation. 

[120] Division 4 of Part 3-2 of the FW Act relevantly provides as follows:

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

(1) Subject to subsection (3), the FWC may order a person’s reinstatement, 
or the payment of compensation to a person, if:

(a) the FWC is satisfied that the person was protected from unfair 
dismissal (see Division 2) at the time of being dismissed; and

(b) the person has been unfairly dismissed (see Division 3).

                                               
55 See Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, 
Acton SDP and Cribb C, 11 May 2000 and Villani v Holcim (Australia) Pty Ltd [2011] FCAFC 155 as examples.








[2019] FWC 5583

36

(2) the FWC may make the order only if the person has made an application 
under section 394.

(3) the FWC must not order the payment of compensation to the person 
unless:

(a) the FWC is satisfied that reinstatement of the person is 
inappropriate; and

(b) the FWC considers an order for payment of compensation is 
appropriate in all the circumstances of the case.

Note: Division 5 deals with procedural matters such as applications for remedies.

… …

392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order 
that the person’s employer at the time of the dismissal pay compensation 
to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection 
(1), the FWC must take into account all the circumstances of the case 
including:

(a) the effect of the order on the viability of the employer’s enterprise; 
and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would 
have been likely to receive, if the person had not been dismissed; 
and

(d) the efforts of the person (if any) to mitigate the loss suffered by the 
person because of the dismissal; and

(e) the amount of any remuneration earned by the person from 
employment or other work during the period between the dismissal 
and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the 
person during the period between the making of the order for 
compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the 
employer’s decision to dismiss the person, the FWC must reduce the 








[2019] FWC 5583

37

amount it would otherwise order under subsection (1) by an appropriate 
amount on account of the misconduct.

Shock, distress etc. Disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection 
(1) must not include a component by way of compensation for shock, 
distress or humiliation, or other analogous hurt, caused to the person by 
the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection 
(1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before 
the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the 
employer during the 26 weeks immediately before the 
dismissal; and

(b) if the employee was on leave without pay or without full pay while 
so employed during any part of that period—the amount of 
remuneration taken to have been received by the employee for the 
period of leave in accordance with the regulations.

393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may 
permit the employer concerned to pay the amount required in instalments 
specified in the order.”

[121] The prerequisites of ss.390(1) and (2) have been met in this case.

[122] Section 390 of the FW Act makes it clear that compensation is only to be awarded as a 
remedy where the Commission is satisfied that reinstatement is inappropriate and that 
compensation is appropriate in all the circumstances. Mr Sathananthan does not seek 
reinstatement and I find that such would be inappropriate in all of the circumstances of this 
matter.

[123] As set out above, under the FW Act, it is then necessary to consider whether 
compensation in lieu of reinstatement is appropriate.








[2019] FWC 5583

38

[124] A Full Bench in McCulloch v Calvary Health Care Adelaide56 (McCulloch) 
confirmed, in general terms, that the approach to the assessment of compensation as 
undertaken in cases such as Sprigg57 remains appropriate in that regard.

[125] Section 392(2) of the FW Act requires me to take into account all of the circumstances 
of the case including the factors that are listed in paras (a) to (g). Without detracting from the 
overall assessment required by the FW Act,58 it is convenient to discuss the identified 
considerations under the various matters raised by each of the provisions.

The effect of the order on the viability of BT

[126] Nothing was put on this aspect but BT is a large business and even a significant award 
of compensation, given the parameters of the FW Act, would not impact the viability of the 
Respondent. 

The length of Mr Sathananthan’s service with BT

[127] Mr Sathananthan’s employment was over seven years, which is not of a short duration. 

The remuneration Mr Sathananthan would have received, or would have been likely to 
receive, if he had not been dismissed

[128] This involves, in part, consideration of the likely duration of Mr Sathananthan’s 
employment in the absence of what I have found to be an unfair dismissal. That is, the 
establishment of the anticipated period of employment.59

[129] Despite my findings that there was not a valid reason for dismissal and any conduct 
did not warrant dismissal at that point, there were legitimate issues concerning aspects of the 
working relationships at the time. This must be considered along with the fact that where a 
valid reason for dismissal is not found, the Full Bench in McCulloch also confirmed that when 
assessing likely lost remuneration, cogent evidence is required for any assumption that a short 
period of likely future employment would have occurred.60

[130] The anticipated period of employment requires consideration as to how long the 
employment would have continued before it otherwise came to an end fairly, or on some 
justified or mutual basis. An applicant employee might also leave of their own volition and 
this is a reasonable prospect in this case.

[131] The assessment, by definition, requires some speculation, based upon evidence and 
reasonable inferences. In Constable,61 Anderson DP assessed the anticipated period of 
employment in the case of a forced resignation by, in effect, recognising the reasonable 
expectations of the applicant in that matter, but for the events leading to the forced 

                                               
56 [2015] FWCFB 873.
57 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District

Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.
58 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.
59 McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873.
60 McCulloch at [27].
61 Constable v 4WD Accessory Wholesale Pty Ltd T/A Caddy Adelaide [2018] FWC 6042.








[2019] FWC 5583

39

resignation, to ongoing employment; but also recognised that the strained environment and 
damaged relationships and an earlier resignation that had been withdrawn, meant that 
ultimately there would have been a mutual or forced parting of the ways.62 Whilst each case 
must be assessed strictly on its own facts and merits, the general basis of this approach 
appears to be appropriate.

[132] In this case, there were some reasonable measures that BT could and should have 
taken to investigate and deal with Mr Sathananthan’s working hours and the relevant elements 
of his complaints concerning the A-BSO. This would involve some months to undertake and 
properly evaluate. On the other hand, Mr Sathananthan had many months earlier indicated a 
potential resignation, and the issues that he was raising, the degree of subjectivity operating 
from a number of the persons involved, and the need to take the A-BSO’s circumstances and 
legitimate interests into account, mean that a resolution that would properly enable ongoing 
relationships at this workplace was unlikely in the longer term. 

[133] I consider that the anticipated period of employment for present purposes should be in 
the order of some four months. This reflects the balancing of all of the circumstances and 
inferences arising from the facts of this particular matter. 

[134] The projected remuneration that Mr Sathananthan would have received based upon the 
anticipated period of employment with BT and the rate of remuneration paid would therefore 
have been $45,990, inclusive of superannuation.

The efforts of Mr Sathananthan to mitigate the loss suffered by his because of the 
dismissal

[135] I accept that Mr Sathananthan has made efforts to mitigate his losses including by 
making approaches to various contacts in the insurance, financial services and related 
industries seeking employment opportunities. His evidence63 was that he had undertaken 
these, and other, activities over a period of time since his dismissal.

[136] No discount to the amount of compensation is warranted based upon this 
consideration.

The amount of any remuneration earned by Mr Sathananthan from employment or 
other work during the period between the dismissal and the making of the order for 
compensation

The amount of any income reasonably likely to be so earned by Mr Sathananthan
during the period between the making of the order for compensation and the actual 
compensation

[137] Mr Sathananthan was not in receipt of any employment related income following his
dismissal and was not in employment at the time of the hearing of this matter. 

                                               
62 At [173] to [182].
63 Exhibit A1 at para 98.








[2019] FWC 5583

40

Any other matter that the FWC considers relevant and the remaining statutory 
parameters 

[138] I have taken into account the projected nature of the anticipated loss of remuneration 
over a known period and given the circumstances of this case, it is not appropriate to make a 
further allowance for contingencies.64

[139] There is no demonstrated misconduct that should lead to a further discount in the 
compensation as provided by s.392(3) of the FW Act. In that regard, I have already taken into 
account the recording of the A-BSO’s work attendance and related matters by 
Mr Sathananthan and the impact that this had on the circumstances, including in relation to 
the anticipated period of employment for the purposes of s.392(2)(c).

[140] In accordance with s.392(4) of the FW Act, I make no allowance for any shock, 
distress or humiliation that may have been caused by the dismissal. I also observe that 
compensation in this context is not in the nature of damages or a penalty for the actions of the 
employer.

[141] The maximum compensation limit in this case is the lesser of 26 weeks remuneration65

before the dismissal occurred ($68,985.0066) or the stated statutory cap of $69,450.67 The 
amount of compensation otherwise arising from the statutory considerations is less than the 
lower figure.

[142] Taxation as required would be payable on any amount determined.

Conclusions on remedy

[143] Having regard to the circumstances of this matter applied to the considerations 
established by s.392 of the FW Act, I consider that it is appropriate to make an award of 
compensation to Mr Sathananthan in lieu of reinstatement. Further, I consider that the 
compensation should amount to $45,990 (inclusive of superannuation) given the 
circumstances of this case and the terms of the legislation.

[144] The superannuation component of the compensation should be calculated and paid by 
reference to the rate being applied at the time of the dismissal. This was 9.5 %.68

                                               
64 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement 

Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, 

per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, 

per Williams SDP, Acton SDP and Gay C, 31 October 2001.
65 It is the higher of the amount of remuneration received or entitled to be received for the previous 26 weeks period that is to 
be used under s.392(6)(a) of the FW Act.
66 Mr Sathananthan’s gross annual remuneration at the time of the alleged dismissal was $137,970.00.
67 Section 392(5) of the FW Act. I note that as the high income threshold was adjusted on 1 July 2019, the statutory cap is 

now a higher figure.
68 Annexure 2 of Exhibit A1.








[2019] FWC 5583

41

9. Conclusions and order 

[145] In all of the circumstances, I have found that Mr Sathananthan was dismissed, that the 
dismissal was unfair and that compensation in lieu of reinstatement is appropriate. 

[146] I have concluded that having regard to the considerations established by s.392 of the 
FW Act, it is appropriate that an award of compensation be made as outlined above. The 
compensation, less any required deduction of taxation, is to be paid by BT to 
Mr Sathananthan within 14 days of this decision.

[147] An Order69 to give effect to this decision is being issued in conjunction with this 
decision.

COMMISSIONER

Appearances:

L Smith with G Krishnan of Norman Waterhouse Lawyers (with permission), for 
Mr Sathananthan.

M Makris of HWL Ebsworth Lawyers (with permission), for BT Financial Group Pty 
Limited.

Hearing details:

2019
Adelaide
14, 15, 28 August and 17 September.

Final written submissions:

Mr Sathananthan - 17 September 2019.
BT Financial Group Pty Limited - 18 September 2019.

Printed by authority of the Commonwealth Government Printer

PR711224

                                               
69 PR713366.


WORK COMMISSION AUSTRALIA THE SEAL OF THE FAI

Cases cited by this decision: