1
Fair Work Act 2009
s.394—Unfair dismissal
David Eccleston
v
JBAM Holdings Pty Ltd T/A Tyrepower Gateshead
(U2021/4706)
DEPUTY PRESIDENT SAUNDERS NEWCASTLE, 26 AUGUST 2021
Unfair dismissal – whether applicant was forced to resign because of conduct, or a course of
conduct, engaged in by his employer – applicant not dismissed.
Introduction
[1] Mr David Eccleston was employed as a Technician by JBAM Operations Pty Ltd
trading as Gateshead Tyrepower (JBAM). On 13 May 2021, Mr Eccleston gave written notice
of his resignation to JBAM. Mr Eccleston contends that he was dismissed on the basis that he
was forced to resign because of conduct, or a course of conduct, engaged in by JBAM, and
that his dismissal was unfair. JBAM denies those allegations and contends that Mr Eccleston
chose to resign of his own free will.
[2] I heard this matter by video conference on 19 August 2021. Mr Eccleston gave
evidence in support of his case, as did his partner, Ms Jenna Gray, and Mr Riley Fisher,
former Assistant Manager of JBAM. Ms Gabrielle Blanch, Group Human Resources Manager
for JBAM, Mr Blain Vandersteen, Chief Executive Officer and a director of JBAM, and Ms
Jacqueline Vandersteen, Chief Financial Officer and a director of JBAM, gave evidence for
JBAM.
Dismissal
[3] The question of when a person has been dismissed is governed by s 386 of the Fair
Work Act 2009 (Cth) (Act):
“(1) A person has been dismissed if:
(a) the person’s employment with his or his employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or his employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or his
employer.”
[2021] FWC 5303
DECISION
E AUSTRALIA FairWork Commission
[2021] FWC 5303
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[4] There is no suggestion in this case that Mr Eccleston was dismissed within the
meaning of s 386(1)(a) of the Act. Mr Eccleston accepts that he resigned from his
employment with JBAM, but says he was forced to do so because of conduct, or a course of
conduct, engaged in by his employer.
[5] The test to be applied in a case concerning an alleged forced resignation under s
386(1)(b) of the Act is “whether the employer engaged in the conduct with the intention of
bringing the employment to an end or whether termination of the employment was the
probable result of the employer’s conduct such that the employee had no effective or real
choice but to resign. Unlike the situation in [s 386(1)(a)], the requisite employer conduct is
the essential element.”1
[6] The line distinguishing conduct that leaves an employee no real choice but to resign,
from an employee resigning at their own initiative is a narrow one.2 The line, however, must
be “closely drawn and rigorously observed”.3
Conduct which Mr Eccleston alleges forced him to resign
[7] Mr Eccleston contends that he was forced to resign because JBAM engaged in the
following conduct or course of conduct:
1. Multiple allegations of theft were made against Mr Eccleston in circumstances where
he did not engage in any theft.
2. JBAM failed to maintain a safe workplace. In particular, JBAM’s workshop at
Gateshead had a rodent problem which caused wiring to become unsafe and the
workshop was not tagged or tested as it should have been.
3. A lack of action taken by JBAM in relation to Mr Eccleston’s well-being.
4. An excessive workload in the eight months preceding Mr Eccleston’s resignation,
which resulted in his health being compromised and no action being taken by JBAM.
5. A lack of record keeping and a failure to carry out correct procedures. In particular,
Mr Eccleston contends that JBAM did not keep accurate records of meetings with him
and Mr Eccleston was told that he did not need to have a support person present on 12
May 2021 during a meeting in which he believes he was demoted.
6. Hiring a new manager while Mr Eccleston was on leave and without him being given
an opportunity to apply for the position.
Relevant facts
[8] Tyrepower is a co-operative of around 300 stores across Australia. Mr and Ms
Vandersteen (through JBAM) are part owners in seven of those Tyrepower stores. One of
1 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]
2 Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December
1996)
3 Ibid
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those stores is located in Gateshead, Lake Macquarie, New South Wales. That was the store at
which Mr Eccleston worked.
[9] JBAM has a small head office, where Mr and Ms Vandersteen work, together with Ms
Blanch and three part-time booking staff.
[10] Mr Eccleston commenced employment with JBAM in about May 2019. He was
employed in the role of Technician. There is no doubt that Mr Eccleston has wide experience
and excellent skills as a Technician.
[11] During Mr Eccleston’s interview for the role of Technician, he and Mr Vandersteen
discussed the fact that the Gateshead Tyrepower business was for sale. Mr Eccleston
expressed his interest in moving into a management role. They also discussed the prospect
that Mr Eccleston may be able to become an owner operator of the Gateshead Tyrepower
store in the future.
[12] In September 2020, Mr Eccleston took over management responsibility for the
Gateshead Tyrepower store, in addition to his responsibility for technical work undertaken in
the workshop. There is a dispute as to whether Mr Eccleston was promoted to the position of
Manager, as he contends, or was appointed to the role of Acting Manager, as JBAM contends.
The appointment was not recorded in writing.
[13] I find, on the balance of probabilities, that Mr Eccleston was appointed to the role of
Acting Manager in September 2020, for the following reasons:
(a) First, Ms Blanch, Mr Vandersteen and Ms Vandersteen all gave evidence that Mr
Eccleston’s appointment to the role of Acting Manager was announced to all JBAM
managers at a meeting on 23 September 2020. Mr Eccleston attended that meeting by
telephone, although he could not participate in parts of the meeting because he had to
attend to business matters in the Gateshead store. Mr Eccleston gave evidence, which I
accept, that he could not remember whether Mr Vandersteen said during the 23
September 2020 meeting that he was appointed to the role of Acting Manager or
Manager.
(b) Secondly, JBAM’s usual process is to appoint a person to the role of Acting Manager,
rather than straight to the role of Manager. JBAM currently has three other Acting
Managers in its Tyrepower stores. Employees in the position of Acting Manager are
given training and an opportunity to prove themselves in the management role.
(c) Thirdly, although I accept Mr Eccleston’s evidence that Mr Vandersteen told staff, a
few customers and Ms Gray during after-work drinks at the Gateshead store that Mr
Eccleston was the new manager in the Gateshead store, I accept Ms Blanch’s
explanation that staff and customers are not told of an individual employee’s
employment arrangements and, in that context, it was appropriate for them to be told
that Mr Eccleston had responsibility for managing the Gateshead store (even though
he was the Acting Manager).
[14] On being appointed to the role of Acting Manager, Mr Eccleston’s wage did not
change, but he was given the use of a fully maintained company vehicle and a fuel card. At
that time, Mr Vandersteen and Mr Eccleston discussed the potential for Mr Eccleston to buy
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into the Gateshead Tyrepower store. I do not need to make findings as to the precise terms of
this conversation because it does not bear on the question of whether Mr Eccleston was
dismissed some eight months later, on 13 May 2021.
[15] Notwithstanding the confusion as to whether Mr Eccleston was appointed to the role
of Acting Manager in September 2020, he accepts that from November 2020 he was working
in the role of Acting Manager.
[16] Mr Eccleston informed JBAM that there was a rodent problem in the Gateshead store
and rodents had chewed wiring in the building. Mr Eccleston arranged for a pest control
expert to treat the rodent problem. Mr Vandersteen gave evidence that an information
technology contractor used by the business fixed some wiring chewed by the rodents so that
the information technology system would continue to operate. I accept that evidence; there is
no suggestion that the information technology system at the Gateshead store did not continue
to operate.
[17] Mr Eccleston gave evidence, which I accept, that the Gateshead store was not tagged
and tested as it should have been. I also accept Ms Blanch’s evidence that an employee of
JBAM was being trained to undertake the tagging and testing of its stores, but that process
took some time and that was the reason for the delay in tagging and testing of the Gateshead
store.
[18] The training provided to Mr Eccleston in the role of Acting Manager was a cause of
some tension. Mr Eccleston believed he had undertaken sufficient training and was ready to
be a Manager. Mr Vandersteen and Ms Blanch took a different view. They believed Mr
Eccleston required further training, including in relation to matters such as inventory
management.
[19] Mr Eccleston says that the Gateshead Tyrepower store was understaffed while he was
the Acting Manager. He says that from September 2020 he was effectively working two
positions, namely Technician and Manager. Mr Vandersteen accepts that it was unusual to
have an employee managing a Tyrepower store from the workshop, but he explained to Mr
Eccleston how he believed it could work with a capable ‘2IC’ dealing with most of the
customers and Mr Eccleston operating mostly as a Technician/Foreman from the workshop.
Mr Vandersteen uses the financial performance of a store as a guide to how many staff should
be working in a particular store. He accepts that, at times, the Gateshead store was short on
staff but at other times it had plenty of staff to deal with the level of business being conducted
in the store. Mr Vandersteen and Ms Blanch also gave evidence, which I accept, that although
they did not always get staffing levels right, they made genuine efforts to provide adequate
numbers of staff by providing staff members from other stores to assist at the Gateshead store
when they could.
[20] In February 2021, Mr Eccleston was informed that JBAM was actively looking to
recruit a Mechanic for the Gateshead store, in addition to the full-time apprentice Mechanic
employed in October 2020. These steps were taken as part of an effort to resolve the staff
issues about which Mr Eccleston complained. The recruitment process for the additional
Mechanic did not produce any suitable candidates. As an interim measure, Ms Blanch
arranged for one of JBAM’s employees who was based on the Central Coast to work in the
Gateshead store every Tuesday and Wednesday.
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[21] In March 2021, Mr Eccleston was offered a job by a different employer in the role of a
Mechanic. It was on better terms and conditions than he was receiving with JBAM. Mr
Eccleston discussed the offer with Ms Blanch, who contacted Mr Vandersteen to discuss the
situation. On 26 March 2021, an email was sent by Ms Blanch to Mr Eccleston offering to
match the offer that had been made to Mr Eccleston by the competitor business, but without a
company car. The offer also stated that “The outcome of this would mean the recruitment of a
Store Manager, which would commence if you were to agree to the above offer being
accepted. The offer would then come into play once a Manager has been placed in the Store.”
Ms Blanch followed the offer up with Mr Eccleston after about a week because he had not
responded to the email. Mr Eccleston said that he was still discussing the offer with his
partner and would come back to Ms Blanch. Ms Blanch formed the view that Mr Eccleston
intended to leave JBAM’s business, so Ms Blanch started working with the directors of
JBAM on a strategy as to how they would move forward at the Gateshead store.
[22] Throughout March and April 2021, Mr Eccleston was required to assist with a
stocktake in the Gateshead store. Mr Eccleston found it difficult to complete the stocktake
because he was continually interrupted with other issues that required his attention in the
store.
[23] Mr Eccleston believes that it is when the stocktake process commenced that things
“started to sour”. Discrepancies were found when the stocktake of tyres was being
undertaken. About $8,000 worth of tyres were unaccounted for. Mr Eccleston looked into the
discrepancies. He found that the previous Manager of the Gateshead store had not charged a
client, Skip the Tip, for 12 truck tyres.
[24] In light of issues discovered during the stocktake process, JBAM decided that a formal
investigative process would take place. At 10am on Sunday, 18 April 2021, Mr Eccleston was
emailed an invitation to attend a meeting at work at 9am on Monday, 19 April 2021. The
email was sent to Mr Eccleston’s work email account. Understandably, he did not read it on
Sunday, 18 April 2021. Nor did Mr Eccleston see the email early on Monday morning
because he was assisting two apprentices in the business. At about 9am on Monday, 19 April
2021, Ms Blanch attended the Gateshead store and told Mr Eccleston she was in attendance
for a meeting. Mr Eccleston said he did not know anything about a meeting and had not seen
any email about it. In the email sent the prior day Mr Eccleston had been given the
opportunity to bring a support person to the meeting. Ms Blanch informed Mr Eccleston that
he was within his rights to have the meeting pushed back so that he could have a support
person present. In the result, the meeting went ahead at about 10am with Mr Vandersteen, Mr
Eccleston and Ms Blanch. During the meeting Mr Vandersteen and Ms Blanch raised their
concerns over a number of transactional and stock related matters. Mr Eccleston was
forthcoming in his responses to the matters raised by Mr Vandersteen and Ms Blanch. That
afternoon Mr Eccleston recovered 12 tyres from Skip the Tip. During the meeting Mr
Eccleston was also questioned about an invoice that had been issued to a former Manager and
current casual employee of the Gateshead store, Mr Colin Bryson, where the price shown on
the invoice for tyres was zero. The invoice was in Mr Eccleston’s name. Mr Eccleston said
that he did not prepare the invoice and did not know anything about it. Mr Eccleston was then
given time to investigate the matter. Mr Eccleston felt as though he was being “framed” for
the tyres because his name was on the invoice but he did not prepare it.
[25] Later that afternoon, Mr Vandersteen spoke to Mr Fisher about the invoice to Mr
Bryson. Mr Fisher contends that Mr Vandersteen said to him words to the effect, “If you see
[2021] FWC 5303
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anything suspicious tell me. I think Dave [Eccleston] might be stealing money with Col
[Bryson].” Mr Vandersteen accepts that he raised the issue with Mr Fisher but says that Mr
Fisher has exaggerated the story. Mr Vandersteen denies that he accused Mr Bryson of
stealing and says that he said to Mr Fisher that things were going wrong in the business and
he wanted to know why. I prefer Mr Vandersteen’s evidence in relation to this disputed
conversation over the evidence given by Mr Fisher. I accept that Mr Vandersteen was trying
to get to the bottom of a range of issues concerning missing stock and he had not reached any
conclusion that Mr Eccleston was stealing from the business. Even though I have found that
Mr Vandersteen did not directly accuse Mr Eccleston of stealing when he spoke to Mr Fisher,
he certainly insinuated that Mr Eccleston may have been involved in stealing from the
business.
[26] On 20 April 2021, Mr Bryson turned up to the Gateshead store. He asked Mr
Eccleston what was going on and why there had been an accusation about giving him tyres for
free and Mr Eccleston pocketing the money. Mr Bryson told Mr Eccleston that Mr
Vandersteen had previously told him that he could have the tyres for free as part of the
sponsorship for his buggy. The owner of Skip the Tip also turned up to the Gateshead store on
20 April 2021. He asked Mr Eccleston about what was going on. Mr Eccleston felt as though
his “brain had shut down”. He was concerned that his staff and customers thought he was a
thief. Later in the day on 20 April 2021, Mr Eccleston went to see his general practitioner,
who issued him with a medical certificate for two days of sick leave. Mr Eccleston felt in “full
meltdown mode”. The doctor asked Mr Eccleston to investigate whether his employer had an
employee assistance program and any workers’ compensation options which may be available
for him.
[27] On 26 April 2021, Mr Eccleston returned to work. He spoke to Ms Blanch about a
range of matters, including concerns about his wife’s pregnancy and how he was feeling
stressed. Ms Blanch asked Mr Eccleston how he felt about counselling, and suggested that he
access a mental health care plan from his general practitioner.
[28] There is a dispute as to whether Mr Eccleston asked Ms Blanch how he could access
workers’ compensation. On the balance of probabilities, I find that Mr Eccleston did ask Ms
Blanch about workers’ compensation on 26 April 2021. That issue was of concern to Mr
Eccleston and he had spoken to his general practitioner about it on 20 April 2021. I find that
Ms Blanch did make suggestions to Mr Eccleston as to how he could access a mental health
care plan but she did not take positive steps to assist him to make a workers’ compensation
claim.
[29] Mr Eccleston also gave unchallenged evidence, which I accept, that Ms Blanch told
him that Mr Vandersteen had his “wires crossed” in relation to the issue concerning Mr
Bryson and had realised that he did give Mr Bryson the tyres as part of his sponsorship. She
then said that the issue was “water under the bridge” and that he needed to shake hands with
Mr Vandersteen and move on. Ms Blanch recommended that Mr Eccleston take the remainder
of the week off to get back on his feet. Mr Eccleston remained upset that he had been accused
of theft and Mr Vandersteen had not apologised to him.
[30] Following Mr Eccleston’s meeting with Ms Blanch on 26 April 2021, he agreed to
take the remainder of the week off as annual leave. As Mr Eccleston was about to leave work,
Ms Blanch asked him to return his keys to the work car. He asked why. Ms Blanch explained
that the car may be needed as a courtesy vehicle while he was on leave. Mr Eccleston said that
[2021] FWC 5303
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there was already a courtesy vehicle on site. Ms Blanch’s response was that it was company
policy for staff not to have company cars whilst on leave. Mr Eccleston was furious. He
believed that the company car was part of his contract and he had his daughter’s car seat and
other personal belongings in the car. Mr Eccleston said he was cancelling his leave, and he
would see a doctor and obtain a medical certificate. Mr Eccleston then drove home and
dropped off his personal belongings before returning to the Gateshead store and handing the
keys to the work ute to Ms Blanch. Mr Eccleston also informed Ms Blanch that he was taking
his toolbox off the premises because his tools had been going missing when relief staff were
called in to work at the Gateshead store. Mr Eccleston told Ms Blanch that he was going to
see his general practitioner and would be in touch with her.
[31] The next morning Mr Eccleston consulted his general practitioner. He was diagnosed
with severe anxiety and depression and provided with a medical certificate for two weeks’
sick leave. Mr Eccleston emailed a copy of the medical certificate to Ms Blanch and asked her
whether that was enough evidence for a WorkCover claim. Mr Eccleston did not receive a
response to that question.
[32] On 7 May 2021, Mr Eccleston called Ms Blanch because he wanted to touch base
about his return to work on 12 May 2021. Ms Blanch informed Mr Eccleston that there had
been a lot of changes at work, as well as a massive clean-up of the workshop. Ms Blanch told
Mr Eccleston that they could discuss these matters further on his return to work. Mr Eccleston
asked whether he needed a support person for the discussion on his return to work. Ms Blanch
told him not to worry about it, because it was not going to be “that type of meeting”.
[33] While Mr Eccleston was absent from work on sick leave, a customer had paid Mr
Eccleston $360 in cash for stock purchased from JBAM. There is no dispute that Mr
Eccleston provided this cash to the Gateshead store.
[34] On 12 May 2021, Mr Eccleston returned to work. He was told by Mr Fisher that there
was a new Manager and a new Mechanic. He was also told that another Mechanic was
starting on the following Monday. Mr Eccleston shook hands with who he believed was the
new Manager and was assigned a task.
[35] Notwithstanding what Mr Eccleston was told by Mr Fisher, I accept Ms Blanch’s
evidence that JBAM had not employed a new Manager and new Mechanic for the Gateshead
store. Instead, JBAM’s group Relief Manager, Mr Adam Sullivan, had been covering for Mr
Eccleston during his absence and JBAM’s group casual Mechanic, Mr Shaun McLean, had
been working in the Gateshead store.
[36] At about 1pm on 12 May 2021, Mr Eccleston had a meeting with Mr Vandersteen and
Ms Blanch. Mr Vandersteen initially informed Mr Eccleston that he intended to record the
meeting, but the recording did not take place. Mr Vandersteen did provide Mr Eccleston with
a notepad to take notes. Mr Eccleston contends that he was told by Ms Blanch that his
position was “unsustainable”. Ms Blanch denies that she said any such thing to Mr Eccleston
on 12 or 13 May 2021. Ms Blanch says that she informed Mr Eccleston that the business had
made the decision to revert him back to his role of Technician/Mechanic, and that a
permanent Manager was going to be placed at the Gateshead store. Ms Blanch also says that
she informed Mr Eccleston that a second Mechanic had been hired to commence in the
Gateshead store in a few weeks’ time. I prefer Ms Blanch’s evidence over Mr Eccleston’s
evidence in relation to these disputed parts of their conversation for the following reasons.
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First, I accept that Ms Blanch and Mr Vandersteen did not want Mr Eccleston to depart the
business; they valued his skills and experience as a Technician, as demonstrated by the offer
they made in March 2021 to match the offer Mr Eccleston had received from a competitor
business. It is therefore unlikely that Ms Blanch or Mr Vandersteen said that Mr Eccleston’s
position in the business was “unsustainable”. Secondly, Ms Blanch was cognisant of Mr
Eccleston’s fragile mental state and I accept her explanation that it was for that reason that she
framed the reason for the decision to revert Mr Eccleston back to the role of
Technician/Mechanic in brief terms simply as a “business decision”. Mr Eccleston
complained that he was told that he did not require a support person for the meeting and felt
as though he had been misinformed.
[37] In response to the idea that he would revert back to the role of Technician/Mechanic,
Mr Eccleston says that he said that if that was the position they were offering him, he did not
have much choice but to resign. Ms Blanch says that Mr Eccleston responded by saying
words to the effect that “this makes my decision easy” and then explained that he would be
providing two weeks’ notice and resigning. Mr Vandersteen gave evidence that Mr Eccleston
provided his verbal resignation in the meeting on 12 May 2021, but did not give his account
of what Mr Eccleston actually said in that regard. There is no dispute between Mr
Vandersteen and Mr Eccleston that Mr Vandersteen asked Mr Eccleston to write his
resignation on the notepad. I accept Mr Vandersteen’s evidence that Ms Blanch asked Mr
Eccleston to think about it overnight. This is consistent with Ms Blanch’s concern as a Human
Resources Manager that Mr Eccleston may have not been acting rationally after receiving
information that was clearly disappointing to him. Ms Blanch wanted Mr Eccleston to think
about his situation overnight before making a decision about his employment with JBAM.
[38] There is a fine distinction between Mr Eccleston saying on 12 May 2021, as he
contends, “I do not have much choice but to resign” and, as Ms Blanch contends, “this makes
my decision easy” and he would be providing notice and resigning. On either version, Mr
Eccleston did not actually resign on 12 May 2021. Taking Ms Blanch’s evidence at its
highest, Mr Eccleston only said that he would be providing notice and resigning. Accordingly,
I find that Mr Eccleston did not resign on 12 May 2021.
[39] Mr Eccleston left work on 12 May 2021 due to his level of distress. Prior to leaving
work, Mr Eccleston said that he would be seeking legal advice before he resigned because he
was unsure whether it was the right thing to do at that stage. Mr Eccleston did not obtain legal
advice, but he did speak to a person from the Commission about resigning from a job when he
did not really want to, as well as the possibility of making a claim for orders to stop bullying
conduct. Mr Eccleston says that he was struggling mentally and was not in a position to make
a bullying claim.
[40] On 13 May 2021, Mr Eccleston returned to work. He attended a meeting with Ms
Gray as his support person. Mr Vandersteen and Ms Nicole Masters, Inventory Manager,
were present in person at the meeting. Ms Blanch participated by telephone. Mr Eccleston felt
as though he was being pressured to resign. Mr Vandersteen explained that if Mr Eccleston
resigned, he would be paid out his two weeks’ notice. At the end of the meeting, Mr Eccleston
agreed to tender his resignation and said he would send it by email. Mr Eccleston also asked if
there were any other matters to be discussed while he had a support person present. He was
told there were no other matters to be discussed. Mr Eccleston then spoke to Ms Gray outside
and they agreed that Mr Eccleston would submit his resignation because the workplace was
“toxic and they had already replaced my role as Manager”. Mr Eccleston then submitted his
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resignation by email at 3:41pm on 13 May 2021. The email did not provide any reasons for
Mr Eccleston’s resignation. The email stated that Mr Eccleston was “notifying you of my
resignation as of 13.5.21. As agreed to be played [sic] out the 2 weeks’ notice period”. In his
reply statement, Mr Eccleston said that he “resigned on 13/5/21 as after 8 months of excessive
workload and lack of clarity around my role, I felt I was now being forced out of my
position”.
[41] After sending his resignation email, Mr Eccleston walked back into the workplace and
was told that there was another matter they wanted to bring to his attention. Mr Eccleston felt
overwhelmed because he had just been told that he did not require his support person to be
present for any further discussions and Ms Gray had left the workplace. There was then a
discussion about missing stock, including stock which had been placed in the rubbish bin. Mr
Eccleston then left the workplace and sought further medical attention because he was not
feeling well.
[42] Following his resignation, Mr Eccleston submitted a workers’ compensation claim. Mr
Eccleston has received workers’ compensation payments in respect of the period from about
27 April 2021 until the date of the hearing. Those payments are at the rate of 95% of Mr
Eccleston’s usual earnings (not including overtime) for the first 12 weeks and will reduce to a
lower percentage thereafter.
Was Mr Eccleston dismissed?
[43] I have no hesitation in finding that JBAM did not intend to bring its employment
relationship with Mr Eccleston to an end. Mr Vandersteen and Ms Blanch appreciated the
extensive skills and experience that Mr Eccleston brought to the business in his capacity as a
Technician/Mechanic, and wanted to retain him in the business. So much is clear from the
efforts they made to retain his services after he was offered alternative employment by a
competitor in March 2021. Although they had a very positive view of Mr Eccleston’s
technical skills, they were of the opinion that he was not ready for the role of Manager of the
Gateshead store. The experiences they had with Mr Eccleston in relation to a range of
managerial matters including inventory and management training led them to form that
opinion.
[44] As to whether the termination of Mr Eccleston’s employment relationship was the
probable result of JBAM’s conduct such that Mr Eccleston had no effective or real choice but
to resign, I make the following findings in relation to the specific conduct relied on by Mr
Eccleston:
1. It was appropriate for steps to be taken to investigate the stock discrepancies identified
in the stock take process at the Gateshead store. However, a reasonable investigation
should have been completed before Mr Vandersteen suggested or insinuated to any
employees or customers of JBAM that Mr Eccleston may have stolen from the
business. That did not happen. Further, allegations concerning the tyres provided to
Mr Bryson at zero cost should not have been raised with Mr Eccleston in
circumstances where it was Mr Vandersteen that had agreed to provide those tyres to
Mr Bryson as part of the sponsorship of his buggy. The allegations made against Mr
Eccleston and the manner in which the investigation was conducted caused Mr
Eccleston distress. Notwithstanding the deficiencies in the process, the investigation
was not completed before Mr Eccleston resigned and no action was taken against him,
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before or after his resignation, in relation to the missing items of stock or any cash
paid to the business. JBAM has not contended in these proceedings that Mr Eccleston
stole any stock or cash from the business. Having regard to all the circumstances, I do
not consider that termination of Mr Eccleston’s employment relationship with JBAM
to have been the probable result of JBAM’s conduct in relation to the stock issues, nor
did it leave Mr Eccleston with no effective or real choice but to resign. Mr Eccleston
had the option of waiting for the conclusion of the investigation process to see whether
any allegations of theft would be put to him directly and whether any action would be
taken by JBAM in relation to them. No such allegations were put directly to Mr
Eccleston prior to his resignation.
2. The rodent problem identified by Mr Eccleston was fixed after he engaged the services
of a pest control expert. The damage to wiring was rectified to the extent that it may
have jeopardised the information technology system used by JBAM at the Gateshead
store. I am not satisfied on the evidence that any other damage to the wiring caused by
rodents presented a significant risk to the health or safety of employees working at the
Gateshead store. I accept that the Gateshead store was not tagged or tested as it should
have been. JBAM took steps to rectify this situation by having an employee trained to
do the tagging and testing work, however that work was not done before the cessation
of Mr Eccleston’s employment with JBAM. The steps JBAM took in this regard were
not sufficient. It is not acceptable to leave a store in a state where it has not been
tagged and tested as required. However, I do not consider that termination of Mr
Eccleston’s employment relationship with JBAM to have been the probable result of
JBAM’s failure in this regard, nor did it leave Mr Eccleston with no effective or real
choice but to resign. This issue played a very small part in Mr Eccleston’s evidence
before the Commission and he did not make any significant mention of it in his
discussions with JBAM leading up to his resignation. Although I accept that Mr
Eccleston was genuinely concerned about this issue, I do not consider that it played a
significant part in his decision to resign from his employment with JBAM.
3. Mr Eccleston feels aggrieved at what he considers to be a lack of action taken by
JBAM in relation to his well-being. There is no doubt that Mr Eccleston’s mental
health suffered in the period leading up to his dismissal. I accept that Ms Blanch and
Mr Vandersteen were genuinely concerned for Mr Eccleston’s well-being, but they
also had a business to run. Ms Blanch did ask Mr Eccleston how he felt about
counselling, and suggested that he access a mental health care plan from his general
practitioner. Ms Blanch also agreed for Mr Eccleston to take time off work when he
was struggling. Although Ms Blanch did not take active steps to assist Mr Eccleston to
make a workers’ compensation claim, that is somewhat understandable in
circumstances where Ms Blanch is the Human Resources Manager for JBAM and it is
not in JBAM’s interests for a workers’ compensation claim to be made against it.
Further, Mr Eccleston has been able to make a successful workers’ compensation
claim in relation to his employment with JBAM. The evidence did not reveal whether
Mr Eccleston obtained assistance from a solicitor or other third party to make such a
claim. In all the circumstances, I do not consider that a lack of action on the part of
JBAM in relation to Mr Eccleston’s well-being left him with no effective or real
choice but to resign, nor was termination of his employment relationship with JBAM
the probable result of any such lack of action. These conclusions are reinforced by the
fact that Mr Eccleston remains aggrieved that he was not given the opportunity to
[2021] FWC 5303
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apply for the position of Manager of the Gateshead store. Had Mr Eccleston been
offered that position, I am confident that he would have accepted it.
4. Mr Eccleston contends that he had an excessive workload in the eight months
preceding his resignation, which resulted in his health being compromised and no
action being taken by JBAM. I accept that Mr Eccleston did work exceptionally hard
in the eight months preceding his resignation in an attempt to prove himself in a
managerial role. His workload was high. He suffered poor mental health during this
period. However, on 12 May 2021, Mr Eccleston was told that a new Manager and a
new Mechanic were being recruited for the Gateshead store. I accept that JBAM
genuinely intended to recruit those additional employees for the Gateshead store. It
follows that although Mr Eccleston had a high workload in the eight months preceding
his dismissal, he could not reasonably have thought that his workload would remain at
that level into the future after the engagement of a new Manager and a new Mechanic.
It follows that Mr Eccleston’s past high workload did not leave him with no effective
or real choice but to resign, nor was termination of his employment relationship with
JBAM the probable result of JBAM’s past conduct in that regard.
5. Mr Eccleston points to a lack of record keeping and a failure to carry out correct
procedures. In particular, Mr Eccleston contends that JBAM did not keep accurate
records of meetings with him and he was told that he did not need to have a support
person present on 12 May 2021 during a meeting in which he believes he was
demoted. The inaccurate records on which Mr Eccleston relies are notes made by
employees of JBAM of their discussions with Mr Eccleston. Copies of those notes
were not shared with Mr Eccleston during his employment with JBAM. They were
relied on by JBAM in the hearing of this matter. Because Mr Eccleston did not know
about the notes and any alleged inaccuracies in them before he resigned, they cannot
have been part of the conduct which forced him to resign. Further, although Mr
Eccleston’s recollection of the conversations differ from the notes taken by employees
of JBAM, I do not consider the differences to be malicious or any deliberate act on the
part of the employees to criticise or undermine Mr Eccleston. The differences reflect
different recollections of past conversations. I am satisfied that there are no other
inaccurate records, apart from the records of meetings, which could have realistically
caused Mr Eccleston to form the view that he had no option but to resign. As to the
failure to tell Mr Eccleston that he needed to have a support person present at the
meeting on 12 May 2021, I agree that it would have been preferable for Mr Eccleston
to have been given the opportunity to have a support person present at a meeting in
which Mr Vandersteen and Ms Blanch knew that they were going to inform Mr
Eccleston that he was to revert from his Acting Manager role to his contracted role of
Technician/Mechanic. It was reasonably obvious that such news would be
disappointing to Mr Eccleston, particularly in his fragile state at that time. However, I
do not consider that termination of the employment relationship was the probable
result of the failure to inform Mr Eccleston that he could bring a support person to the
meeting. Mr Eccleston could have refused to participate in the meeting without a
support person present. If he had done so, I am confident that the meeting would have
been postponed. In any event, the presence of a support person at the meeting on 12
May 2021 would not have altered the fact that JBAM had made a decision to recruit a
new Manager for the Gateshead store and Mr Eccleston would be required to revert to
his contracted position of Technician/Mechanic.
[2021] FWC 5303
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6. JBAM made a decision, having tried Mr Eccleston out in the role of Acting Manager
for almost eight months, that he was not ready for the role of Manager and that it was
in the best interests of the business to recruit a new Manager and not to invite Mr
Eccleston to apply for the position of Manager. That was a reasonable decision for
JBAM to make in the circumstances. Mr Eccleston was disappointed, but he was in an
acting role and had no right to be appointed to the position of Manager. The fact that
Mr Eccleston contends that he should have been given an opportunity to apply for the
position of Manager suggests that his relationship with Mr Vandersteen and Ms
Blanch had not become untenable and his disappointment in not being given, or
considered further for, the role of Manager was the principal reason for his
resignation.
[45] I accept that there was a lack of clarity around Mr Eccleston’s role of Acting Manager
and what he had to do in order to be appointed to the role of Manager. Mr Eccleston was
frustrated at the amount of time it was taking for him to be appointed to the role of Manager
and potentially buy into the business. He was also frustrated at what he perceived to be a lack
of staff and action taken to address issues raised by him. Mr Eccleston had the opportunity to
leave the business and work for a competitor in March 2021. He elected not to take up that
offer. The relationship became further fractured when issues were raised with Mr Eccleston in
relation to the stock take undertaken at the Gateshead store. Mr Eccleston then suffered
difficulties with his mental health. Ultimately JBAM made a decision that Mr Eccleston was
not ready to be the Manager of the Gateshead store, but it wanted to retain him in his
contracted position of Technician/Mechanic. Mr Eccleston had no right to be appointed to the
role of Manager or continue in his appointment to the role of Acting Manager. Mr Eccleston
was bitterly disappointed at being overlooked for the role of Manager. It is clear that that was
the principal reason for his decision to resign. I find that termination of the employment
relationship was not the probable result of JBAM’s conduct such that Mr Eccleston had no
effective or real choice but to resign. In short, Mr Eccleston was not forced to resign because
of conduct, or a course of conduct, engaged in by JBAM. He chose to resign, principally
because he was disappointed at not being offered, or being further considered for, the role of
Manager.
Conclusion
[46] For the reasons given, Mr Eccleston was not dismissed by JBAM within the meaning
of s 386(1)(b) of the Act. Accordingly, Mr Eccleston’s application for relief from unfair
dismissal is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr Eccleston on behalf of himself
Ms Blanch on behalf of the Respondent
THE FAIR WORK AIR NORK C OMMISSION KLIA SEX THE SEAL OF THE
[2021] FWC 5303
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Hearing details:
2021.
Newcastle (by video conference):
August 19.
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PR733233
