1
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Richard Stanowski
v
The Trustee For White Watson Motors Unit Trust
(C2023/806)
DEPUTY PRESIDENT MILLHOUSE MELBOURNE, 18 JULY 2023
Application to deal with contraventions involving dismissal – jurisdictional objection – whether
the applicant was dismissed – application dismissed.
[1] On 15 February 2023, Mr Richard Stanowski made an application to the Commission
pursuant to s 365 of the Fair Work Act 2009 (Cth) (Act). Mr Stanowski alleges that he was
dismissed from his employment with The Trustee for White Watson Motors Unit Trust trading
as South Morang Motor Group in contravention of the general protections contained in Part 3-
1 of the Act.
[2] The respondent objects to the application on the basis that Mr Stanowski resigned from
his employment. Mr Stanowski submits that he was forced to resign because of conduct, or a
course of conduct, engaged in by the respondent within the meaning of s 386(1)(b) of the Act.
[3] The application proceeded to a jurisdictional hearing before me on 9 June 2023. For the
reasons that follow, I find that Mr Stanowski has not been dismissed within the meaning of s
386(1) of the Act. Accordingly, the respondent’s jurisdictional objection is upheld and Mr
Stanowski’s application under s 365 is dismissed.
Background and factual findings
[4] The respondent is a car dealer in South Morang, Victoria. Mr Stanowski commenced
employment with the respondent on 24 October 2022.1 Mr Stanowski was employed pursuant
to a letter of offer which he signed and dated on 18 October 2022. The letter appointed Mr
Stanowski to the position of Business Manager, with a six-month qualifying and probationary
period.2
[5] Mr Stanowski describes Mr James Merrett, Senior Business Manager, as his “unofficial
direct report” and Mr Mark Frederikson, General Manager, as his direct report.3 Mr Merrett’s
evidence in relation to the corporate hierarchy is that Mr Stanowski reported to him in relation
to matters concerning finance dealings, and would report to Mr Frederikson for all other
employment matters.4 It is not in dispute that Mr Stanowski demonstrated capability in his role
and developed a good working relationship with Mr Merrett.5
[2023] FWC 1745
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1745
2
[6] Mr Stanowski was absent from work on personal/carer’s leave on 29 November 2022.
Mr Stanowski contends that upon his return to work on 30 November 2022, he was requested
by the respondent’s Financial Controller, Ms Shelley Thomas, to sign a pre-populate document
confirming that his absence on 29 November 2022 would be unpaid.6 Mr Stanowski contends
that this led him to feel bullied and harassed by Ms Thomas, although Mr Stanowski did not
report this concern to Mr Merrett or Mr Frederikson.
[7] Mr Stanowski was again absent from work on personal/carer’s leave between on or
about 3 December and 17 December 2022.7 Following an enquiry by Mr Stanowski on 5
December 2022 about his personal leave entitlements, Mr Stanowski was advised by Ms
Thomas that the respondent did not make payment for sick leave absences during the first three
months of employment. Mr Stanowski was also inaccurately advised that his personal/carer’s
leave entitlement was eight days per year plus two carer’s leave days. Mr Stanowski contends
that he was again required to sign a pre-populate document on 17 December 2022 confirming
that his personal leave would be unpaid. However, it is not clear from the evidence the dates
this document specified would be unpaid.8 Mr Stanowski contends that this demonstrates
further bullying against him by Ms Thomas.9
[8] On 3 January 2023, Mr Stanowski contends that he was reprimanded by Mr Merrett in
relation to a discussion that occurred during a meeting with a client, which led to Mr Stanowski
having a number of panic attacks.10 However, Mr Merrett’s evidence was that Mr Stanowski
was not reprimanded, but rather the discussion involved Mr Merrett addressing the manner in
which Mr Stanowski allegedly spoke to a customer. There is no other evidence before the
Commission in relation to this matter and in the context of determining the respondent’s
jurisdictional objection, I make no findings about the circumstances of this incident.
[9] On 6 January 2023, Mr Stanowski admitted himself to Essendon Private Clinic for
treatment, where he remained until on or about 17 January 2023.11
[10] Mr Stanowski gave evidence that upon his return to work after 17 January 2023, the
respondent corrected its calculation and accrual error with respect to his personal/carer’s leave.
Any outstanding payments due to Mr Stanowski in relation to the personal leave he had taken
since the commencement of his employment was rectified.12
[11] Mr Stanowski was absent from work to attend his cousin’s funeral on 20 January 2023.13
On 23 January 2023, Mr Stanowski requested that the absence be taken as compassionate leave.
The respondent declined this request, noting that Mr Stanowski’s cousin did not meet the
definition of “immediate family” under the Act, which is consistent with the position at law.
Mr Stanowski advised Ms Thomas by email dated 24 January 2023 that he was “fine with this
outcome.”14
[12] In the period prior to 31 January 2023 Mr Stanowski was involved in a personal matter
which necessitated his attendance at the Broadmeadows Magistrates Court on 31 January 2023
to obtain a family violence intervention order.15 Mr Stanowski contends that he informed Mr
Merrett that he would need to be absent from work on 31 January 2023. Mr Stanowski gave
evidence that he was advised by Mr Merrett that unless his shift on 31 January 2023 could be
[2023] FWC 1745
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swapped with another employee who was accessing a rostered day off, then it “would be the
last nail in my coffin with regard to my employment with [South Morang Motor Group].”16
[13] Mr Stanowski said that his colleague, Rodi, was unable to assist him with a shift swap
and Mr Stanowski advised Mr Merrett of this fact. Mr Stanowski said he had the “impression”
that if he did attend Court he would be “promptly” met with being “fired.”17 However, Mr
Stanowski did not raise with Mr Merrett that he had formed this view.18 Nor did Mr Stanowski
speak to Mr Frederikson about his concerns, despite Mr Frederikson being Mr Stanowski’s
direct report.19 Mr Stanowski explained his position in the following way during the hearing:20
“…But yes, I knew that I could have taken the day off. Obviously you just don't go to
work and you can take the day off and so on and so forth. However, it wouldn't have
been met lightly. It wouldn't have been, 'Okay, no worries, you're taking a day off.
That's fine'. I think it would have been met with actually being fired on my desk shortly
after the incident.”
[14] Mr Merrett gave evidence that he has a very different recollection of events to Mr
Stanowski. Mr Merrett explained as follows:21
“So I was in my office on the day that Richard apparently got the email saying that he
needed to go to court. He came into my office and proceeded to let me know about this
family violence order that was – he was going to place against his auntie at that time
and in the conversations that I had with him he was laughing about the matter, saying
that his auntie tried to get him out of his house and she wanted him to fight but he's too
smart for that; making it a manner to me that I interpreted as that he wasn't fearing for
his safety, he was more so putting an order on his family member to stop her from
coming around, even though there is a seriousness of matter with family violence he did
proceed to tell me that he needed the day off, which I accepted and said, 'Look, at the
end of the day you're more than welcome to go to this court case. However, if you'd
like to not use your annual leave you'll have to see with Roadie [sic] if we can swap
your day off'. As a business we are flexible and we do allow for our staff members to
swap days off with each other as long as we've got the staff members here to cover that
particular day. As Richard mentioned to you, Roadie [sic], our other business manager
here, just had a newborn baby and he could not cover that day off for Richard. So my
conversation with Richard was that, 'You will have to go to Peter and Mark to get an
annual leave form signed off. It's not my decision'. However, my exact words were, 'It
does not look good that you're having this much time off'. I don't know – recollection
of event, 'nail in the coffin', that couldn't be more untoward. I wouldn't say those words
and my recollection doesn't include that. I said, 'It wouldn't look good on your
employment given that you've had so much time off in that three months. However it
is a court event and you do have to go and we're more than happy to support that but
you'll have to get an annual leave form signed off by upper management. It's not my
decision to be able to grant that particular leave'.”
[15] Mr Merrett further stated as follows:22
“I would not say, 'That's the nail in your coffin', because I am not the decision maker
regarding his employment so no, I would not say that. My recollection was my words
[2023] FWC 1745
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were exactly, 'It would not look good on your employment, having another day off',
because again, he'd been away for X amount of days in three months. The pressure on
myself and Roadie [sic] was upcoming and, you know, he was away more than he was
here. So I understand that people have their events but as I mentioned to you earlier,
we do require someone to be here and cover the workload that we do have with us. So
my words were, 'It would not look good on your employment', but in no regard would I
ever say, 'It's a nail in your coffin', and I'm not the decision maker in respect to that. On
top of that, just to reiterate on his email as well, I never said, 'Resign or be fired'. We
liked Richard, I had a good relationship with Richard, me and Richard spoke, I
considered Richard a friend, as did he consider myself as a friend. He came to me with
anything that he needed and we were always supportive of him. So this, you know –
allegations against me is quite untoward and actually shocking, to be honest.”
[16] On 25 January 2023, Mr Stanowski sent an email to Mr Merrett and Mr Frederiksen.
The email stated as follows:23
“Hi James and Mark
Please find attached my resignation.
Again, thanks for the opportunity, and apologies for my illness, 2022 &2023 hasn’t been
kind to me thus far.
Aldo Riaz just needs to be added to my January log.
Unless told otherwise, I am providing my one weeks’ notice, meaning I will be here
Monday and Wednesday of next week.
Tuesday, however, I am happy to take as annual leave, unpaid leave or come to work
after my court appearance, whatever meets the business needs.
I do trust that my medical condition and personal circumstances will be treated with the
utmost of confidentiality.”
[17] The email attached a document, also dated 25 January 2023, which provides as
follows:24
“Dear James and Mark,
Please accept my resignation as of today the 25/01/2023.
I have had some serious health issues I needed to deal with and I apologise if I put the
business out in any way.
The passing of my cousin was an unwanted and unexpected part of my life so I apologise
for that leave also.
I did ask for Shelley to clarify sick leave accrual which she did and it seems to be
contradictory to the fair work act. I did also ask Shelly to provide evidence of the 3
month rule to me of which she ignored.
The accrual calculation provided to me only accounts for 8 days of sick leave, which
means either, she made up the accrual figure, or it accrues at a different amount per
[2023] FWC 1745
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week. I’d like this clarified please in extreme detail so I know where to take this. We as
employees of the business are not privy to the visibility of the accrual of sick leave
entitlements of the business and as such are not entirely sure this has been done
correctly, and whenever I have questioned it I have been met with stern and short
answers often ignoring parts of my request.
And when I have been right, it has been delivered verbally hence no paper trail, even
though I have asked for it in writing.
The leave I need to take on Tuesday 31/01/2022 is in relation to family violence and me
needing to take out and [sic] intervention order for my own protection so it is rather
important as I have been personally threatened, although the circumstances were
explained to James, James did say that unless Rodi is willing to swap RDO’s with me I
am placing the last nail in my coffin in relation to my employment with SMMG. I have
asked Rodi and as a new parent he has organised all his appointments around his
Tuesday RDO’s for his baby which is completely understandable.
I need to attend the Broadmeadows magistrates court on Tuesday @ 9:30am to get a
family violence intervention order in place and I feel that I have no option but to resign
as I can’t be in 2 places at the same time.
The lack of support from SMMG in this instance has been somewhat disappointing
especially since fair work Australia has a specific policy for family violence sufferers
and I thought more compassion would have been applied in this instance.
I’d like to thank you for the opportunity to work with such a great group of people for
the most part and wish you all the best with your future endeavours, however the anxiety
that would be provoked from me attending a court hearing for my own protection
knowing its having a detrimental effect on my future employment prospects, with my
existing condition is going to have massive detrimental effects on my mental health,
hence I am left with no option but to hand in my resignation.”
[18] Mr Stanowski gave evidence that the industry within which he works is small, and he
would rather resign rather than be fired.25
[19] Mr Merrett responded to Mr Stanowski’s resignation email and stated as follows:26
“Good morning, Richard. I have taken the time to read your email and again, thank you
for your short time with us. We understand that you've had some personal issues over
the course of your employment with us and we want to wish you the best with your
future endeavours going forward. Please take this email as acceptance of your
resignation and you are not required to return to work next week. We can terminate
your employment as of your email on Wednesday at 5.04 pm as requested. Thanks
again for your service with us and all the best in the future.”
[20] Mr Stanowski filed his s 365 application in the Commission on 15 February 2023.
[2023] FWC 1745
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Statutory framework
[21] Section 365 of the Act contains two criteria conditioning a person’s entitlement to make
an application: that a person has, in fact, been dismissed, and that the person alleges that
dismissal was in contravention of Part 3-1 of the Act.27
[22] The circumstances in which a person is taken to be “dismissed” is set out in s 386 of the
Act. Section 386(1)(b) relevantly provides as follows:
(1) A person has been dismissed if:
(a) …
(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.
Contentions
[23] The respondent contends that Mr Stanowski resigned from his employment on 25
January 2023 and so his application does not satisfy the criterion in s 365(1)(a) that a person be
dismissed. The respondent submits that the evidence demonstrates that Mr Stanowski was
supported during his employment, and its error in relation to the calculation of Mr Stanowski’s
personal/carer’s leave entitlements was resolved prior to his resignation.
[24] Mr Stanowski contends that he was dismissed within the meaning of s 386(1)(b) of the
Act.28 Mr Stanowski submits that he was entitled to 10 days of paid family and domestic
violence leave in a 12-month period by law but despite this, “was told it would be the last nail
in my coffin in relation to my employment with SMMG if I made that move.”29 Mr Stanowski
said that because he could not be in two places at the one time, he had no option but to resign
in order to attend Court.30
[25] Mr Stanowski said that he explained the circumstances of his resignation “quite clearly
in my resignation letter, expecting it to spark a meeting/conversation.”31 Mr Stanowski submits
as follows:32
“The reason I left is because I felt bullied and because the business tried to get me to
choose between dealing with family violence or keeping my job, I think that was made
clear in my resignation letter. I think it is point blank obvious I was forced into that
predicament, as I couldn’t be in 2 places at the same time and it has absolutely nothing
to do with suitability.
I was given A choice, resign or be fired.”
(emphasis in original)
[26] Mr Stanowski further submits that he felt bullied by Ms Thomas from “day one,”33 or
at least from the date that he took his first personal/carer’s leave day,34 on the basis that he was
“constantly misinformed” about employment entitlements, and that such conduct was
“intentional.”35
[2023] FWC 1745
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Consideration
[27] The question for determination in this application is whether Mr Stanowski was
dismissed by the respondent.
[28] Section 386(1)(b) of the Act is concerned with the resignation of a person from their
employment where the resignation was “forced” by conduct or a course of conduct on the part
of the employer. The test to be applied 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.36
[29] The question of whether a resignation did or did not occur does not depend on the
parties’ subjective intentions or understandings. Rather, it depends on what a reasonable person
in the position of the parties would have understood was the objective position, based on what
each party has said or done, in light of the surrounding circumstances.37 It is the conduct of the
employer that is the essential element.38 The onus is on the employee to prove that they did not
resign voluntarily.39
[30] Mr Stanowski relies on two key “actions” on the part of the respondent in support of his
contention that he was forced to resign by the conduct or a course of conduct of the
respondent.40 These matters are considered in the analysis that follows.
[31] First, Mr Stanowski contends that he felt bullied by Ms Thomas. The issue identified
by Mr Stanowski to be of concern between Mr Stanowski and Ms Thomas concerned the
calculation and accrual of Mr Stanowski’s personal/carer’s leave entitlements.
[32] Mr Stanowski relies upon three emails in support of his contention that Ms Thomas
bullied him.
[33] The first email has the subject line “Leave balance query” and was sent by Mr Stanowski
to Ms Thomas on 5 December 2022. Relevantly, Mr Stanowski makes the following request:41
“…May I please request my other leave entitlements as they are not on my payslips and
I’m a little confused with how it all works.
Such as sick leave annual entitlement.
You advised me it was 8 days per annum, and I won’t be able to access this leave for at
least 3 months of my start date…
I have been with the company for precisely 6 weeks today, so I’d just like to know the
answer to the following in writing please:
1. How much sick leave accrues weekly to make up the 8 days per annum
2. What my current sick leave balance is, as of today the 05/12/2022”
[34] In response to this email on 6 December 2022, Mr Stanowski was relevantly advised by
Ms Thomas as follows:42
“Sick leave balance is not put on any pay slips.
[2023] FWC 1745
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Estimate accrual weekly for sick leave will be approx. 1.16 per week.
You started with us on 24/10/22 and have only been here for approx. 5 weeks. Sick
leave entitlements are not paid for 3 months as per company policy. You have had 2
days sick leave and you have not been paid any sick leave for the time off as you have
not accrued enough sick leave. We do not pay out sick leave in lieu.”
[35] The email chain demonstrates that Mr Stanowski sought further clarification on this
point, noting that he had “never heard, read or seen this 3 month rule in any documentation.”
[36] The second email has the subject line “FRIDAY” and was sent by Ms Thomas to Mr
Stanowski querying whether he would be taking leave without pay or annual leave following
his attendance at his cousin’s funeral on 20 January 2023.43 Mr Stanowski responded by
requesting that the leave be taken as compassionate leave, to which Ms Thomas responded as
follows:
“Richard. Sorry but a cousin is not on the list of Compassionate leave unless they are
living with you now. I know you state that he grew up in your family home but it is not
covered under the fair work website.”
[37] As earlier noted, Mr Stanowski responded to this email by stating that he respected Ms
Thomas’ decision and asked that the leave be processed without pay. Mr Stanowski’s email
proceeded by making further enquiries about his personal/carer’s leave entitlement. Mr
Stanowski’s email of 23 January 2023 directed Ms Thomas to the terms of s 96(1) of the Act
and relevantly stated:
“So, are you able to help me understand why, everyone only accrues 1.16 hours per
week equating to 8 days per annum (for I can only assume the last 14 years) when the
law states it should be 10?
The act also states that sick leave may be taken as its accrued and there is no 3-month
waiting period as you have stipulated in the attached email…”
[38] Ms Thomas responded on 24 January 2023 by stating as follows:
“Richard. Sorry but this situation will be leave without pay. I will look into rest of your
querie [sic] and get back to you.”
[39] It is apparent from these email exchanges that the advice provided to Mr Stanowski on
5 December 2022 regarding his statutory entitlement to personal/carer’s leave was inaccurate.
I accept that the respondent had miscalculated and erroneously applied the law in relation to the
calculation and accrual of Mr Stanowski’s personal/carer’s leave under the Act. I also accept
that this was a matter of concern to Mr Stanowski.
[40] These emails also demonstrate that Mr Stanowski directly and confidently challenged
Ms Thomas in relation to his personal/carer’s leave entitlements between December 2022 and
January 2023. To Mr Stanowski’s credit, these enquiries resulted in the respondent correcting
its error. Mr Stanowski’s evidence is that any outstanding payments due to him in relation to
the personal leave he had taken since the commencement of his employment was rectified prior
to the date that Mr Stanowski resigned on 25 January 2023.
[2023] FWC 1745
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[41] The third email post-dates the termination of Mr Stanowski’s employment and to that
end, is of limited probative value. For completeness, it is noted that the subject of the email is
“Re: Richard Stanowski pay advice 01/02/2023” and the first email containing any substantive
content is from Ms Thomas to Mr Stanowski dated 3 February 2023 which appears to respond
to a concern raised by Mr Stanowski regarding his final pay and relevantly states as follows:
“You are correct regarding your last pay. I wasn’t aware that you had given a week
notice as you [sic] resignation letter does not state that. James did confirm that he told
you to leave straight away…”
[42] Mr Stanowski responded relevantly as follows on 3 February 2023:
“Shelley, I’m always correct, I’m not the kind of person you bet against, I am extremely
thorough, analytical and a perfectionist…
Also you stated in the conversation in my office that “we don’t pay sick leave in
advance, that’s why you weren’t paid as you didn’t have enough accrued”
That’s actually wrong.
If I have been there 2 weeks and accrued 2.92 hours of sick leave and I take a sick day
it should be 2.92 hours of sick leave and 4.68 hours of unpaid sick leave. That’s the law.
This in turn means you have never know the correct balance of anyones sick leave as
your ‘manual’ calculation has been incorrect for 14 years, I suggest you scrub up on
your policies and fair work australia laws because you have broken several of them with
me, and the only reason I even decided to look at the document was because of the lack
of compassionate leave paid… I thought that was a bit rough, however I concede you
were well within your rights to make that call.
But if you advise unipay to put sick leave through as unpaid sick leave they will follow
your instructions…. Even though the leave is actually available. Your lack of knowledge
in law and familiarisaXon with the act has costed me and probably hundreds of other
employees anxiety and mental stress trying to deal with a senior person in the business
that should know the rules however keeps on admitting to “mistakes” and these are
mistakes that simply shouldn’t happen, these are mistakes that the financial controller
should not be making as they are very basic knowledge a person in your position should
know, you should be well familiarised with the fair work act 2009, and if you are not, I
suggest you read it, I did.
Also if you have been under the impression that everyone only gets 8 days a year it
sounds like you don’t cross check anything with unipay hence would have put through
anyone exceeding their 8 days as unpaid leave as your records don’t correlate with
unipay, do you ever do an audit? Or a marry up?
If an audit was completed over the last 14 years…. How many people would have
missed out because of fake 3 month rules, fake “you don’t have enough” hours accrued,
how many people would have been forced to take annual leave when in fact that had
sick leave available but just not according to your manual calculation. How on earth do
[2023] FWC 1745
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you not have live access to everyone’s leave with unipay so you can accurately do this
instead of plucking numbers from 2009?
Furthermore, anyone who doesn’t have the 7.6 available sick leave hours you have also
been putting through as unpaid leave which is also against the law.
I am still waiting for the weekly accrued sick leave from you in writing by the way…
I think these mistakes are more of a deliberate mistake, then pleading ignorance when
being called on it, i just don’t think many people call you on things as they are passive
and you are aggressive, there is no way you have been this oblivious to this for 14 years.”
[43] On 5 February 2023, Ms Thomas responded to Mr Stanowski’s email relevantly stating,
“I have spoken to Peter Frederikson and also forwarded your emails to him. Moving forward
any queries need to be sent to Peter and not myself.”
[44] Despite Ms Thomas’ request, Mr Stanowski sent a further email to Ms Thomas on 5
February 2023 in which Mr Stanowski continued to seek answers regarding Ms Thomas’
“actions and conduct,” provision of his accrued leave entitlements, a “correct and accurate sick
leave accrual per week figure in writing,” and advice as to how often an audit is conducted with
Unipay.” Further, Mr Stanowski said as follows in relation to his personal/carer’s leave
entitlement:
“4) you also separate them, 8 days sick and 2 days of carers….
Not true 10 days per annum of which you can use 2 for carers leave. But you advised
me that’s what you aways thought…. Meaning that’s what you have always processed.
So to me, that translates to, if someone hits 8 days of sick leave it’s getting put through
as unpaid leave as you’re under the impression the other 2 days were for carers leave
and carers leave only hence the employee doesn’t have any sick leave left as it capped
out at 8 days…. You instruct unipay what to do, they aren’t going to come back and
question what you’re asking for because there is actually leave available.
The act is extremely clear with 10 days of sick leave, but you are incorrectly advising
unipay so the problem is not with unipay, they are simply doing what they are told.”
[45] Having regard to the emails that passed between Mr Stanowski and Ms Thomas, and
noting the findings I have made at [39]-[40] above, I am not satisfied that a reasonable person
in the position of the parties would conclude that Ms Thomas miscalculated Mr Stanowski’s
statutory entitlements or otherwise made any errors in relation to Mr Stanowski’s final pay with
the intention of bringing his employment to an end.
[46] As it relates to Mr Stanowski’s personal/carer’s leave entitlement, the opposite is the
case. On Mr Stanowski’s own evidence, the respondent corrected its error during the period
that Mr Stanowski’s employment remained on foot and back paid his entitlements. This
occurred prior to Mr Stanowski resigning from his employment. In my view, this demonstrates
the respondent’s commitment to an ongoing employment relationship with Mr Stanowski.
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[47] With respect to Mr Stanowski’s final pay, this could not possibly be taken into
consideration in the determination of whether the error was made with the intention of bringing
Mr Stanowski’s employment to an end. This is because the alleged mistake post-dates the
dismissal. While the details are not made clear in the material, it is apparent that the issue
concerns the payment of notice in relation to Mr Stanowski’s final pay.
[48] The evidence does not demonstrate that Mr Stanowski was the subject of bullying by
Ms Thomas, and I do not accept Mr Stanowski’s contention that Ms Thomas deliberately made
mistakes in relation to Mr Stanowski’s employment as contended. There is no basis in the
material which would support such an allegation.
[49] I do not consider that the termination of employment was the probable result of Ms
Thomas’ conduct such that Mr Stanowski had no effective or real choice but to resign on the
basis of his dealings with Ms Thomas. Mr Stanowski’s contention in this respect is rejected.
[50] Second, Mr Stanowski contends in his written submissions that:
(a) Mr Merrett advised Mr Stanowski that unless his shift on 31 January 2023 could be
swapped with another employee, then it “would be the last nail in my coffin with
regard to my employment with [South Morang Motor Group].”44
(b) Mr Stanowski was given a choice when faced with the need to attend Court on 31
January 2023; resign or be fired.
[51] Mr Merrett rejects using words to the effect that Mr Stanowski’s further absence would
be the last nail in his coffin. Mr Merrett says that he is not the decision maker in relation to Mr
Stanowski’s employment so he would not make such a statement. Mr Merrett recalls that he
said the following to Mr Stanowski in response to Mr Stanowski’s advice that he needed to
attend Court on 31 January 2023:
(a) “Look, at the end of the day you're more than welcome to go to this court case.
However, if you'd like to not use your annual leave you'll have to see with Roadie
[sic] if we can swap your day off.”
(b) “You will have to go to Peter and Mark to get an annual leave form signed off. It's
not my decision.”
(c) “It does not look good that you're having this much time off.”
(d) “It wouldn't look good on your employment given that you've had so much time off
in that three months. However, it is a court event and you do have to go and we're
more than happy to support that but you'll have to get an annual leave form signed
off by upper management. It's not my decision to be able to grant that particular
leave.”
[52] Mr Merrett’s evidence in this respect was not challenged by Mr Stanowski.45 However,
Mr Stanowski acknowledges that there is a factual contest between his evidence and Mr
Merrett’s recollection of this discussion, and I proceed on this basis.
[53] I do not find that Mr Merrett said words to the effect that Mr Stanowski’s absence from
work to attend Court would be the last nail in Mr Stanowski’s coffin. Mr Merrett rejects making
this statement and I accept his evidence. I found Mr Merrett to be candid witness, who openly
[2023] FWC 1745
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answered questions from the Bench, including by acknowledging that Mr Stanowski’s periods
of absence from work had placed some pressure on his work colleagues.46 By comparison, Mr
Stanowski was evasive when asked why he elected not to raise his employment concerns with
Mr Frederikson or another representative of the respondent prior to his resignation.47 Further,
an aspect of Mr Stanowski’s evidence about his leave dates remains unclear despite attempts to
clarify the position during the hearing.48
[54] I accept Mr Merrett’s evidence that he did not have the authority to terminate Mr
Stanowski’s employment, this being within the remit of Mr Frederikson to whom both Mr
Merrett and Mr Stanowski report. It follows that I accept Mr Merrett’s evidence that he is not
a “decision maker” regarding Mr Stanowski’s employment and on that basis would not make
the statement attributed to him at [50](a) above.
[55] Further, I reject Mr Stanowski’s contention that he was given a choice by Mr Merrett to
resign or be fired. I accept Mr Merrett’s evidence that he did not issue Mr Stanowski such an
ultimatum. There is no evidence before the Commission (even on Mr Stanowski’s recollection
of the discussion) of Mr Merrett requiring Mr Stanowski to make such an election (expressly
through his statements, or impliedly through his conduct). Rather, Mr Stanowski’s evidence is
that he formed the “impression” that if he attended Court he would “promptly” be “fired.” This
falls well short of demonstrating that he was given “A choice, resign or be fired,” and I reject
this contention.
[56] It is relevant to note that Mr Stanowski did not raise his concerns about either of the
matters at [50] above with Mr Frederikson, or another representative of the respondent, prior to
tendering his resignation. This is despite the fact that Mr Stanowski recognised Mr Frederikson
as his “direct report” and a person to whom his resignation letter should be addressed. Mr
Stanowski gave evidence that he felt uncomfortable speaking with Mr Frederikson and was
concerned about information leaks.49 It is not apparent why Mr Stanowski would refrain from
disclosing his concerns about his employment security with Mr Frederikson prior to tendering
his resignation, but to explain the issue in significant detail in the correspondence attached to
his resignation email. It follows that I am not persuaded that Mr Stanowski’s evidence as to his
discomfort in speaking with Mr Frederikson about this matter is credible.
[57] On the evidence, I find that Mr Stanowski reached a subjective conclusion that if he did
not resign, he would be “fired.” Mr Stanowski’s evidence is that he would “rather be in control
of what’s on my resume and what’s on my history and resign rather than take the day and then
be fired…”50 I accept this evidence, which in my view demonstrates that Mr Stanowski made
a considered decision in light of the impression he had formed about his ongoing employment
security if he was absent from work to attend Court. However, the question of whether Mr
Stanowski resigned or not is not to be determined based upon Mr Stanowski’s subjective
understanding. As earlier stated, the task before the Commission is to conduct an objective
analysis of the situation.
[58] Upon forming the view that he would rather resign than be dismissed, Mr Stanowski
thereafter acted with intent and tendered his resignation to Mr Merrett and Mr Frederikson,
together with a considered and detailed letter explaining his position. I am satisfied, on an
objective assessment, that Mr Stanowski took this step voluntarily and his resignation was
legally effective. .
[2023] FWC 1745
13
[59] Further, there is no other evidence that supports a conclusion that the cessation of Mr
Stanowski’s employment was the probable result of the respondent’s conduct such that Mr
Stanowski had no effective or real choice but to resign. To the extent that Mr Stanowski refers
to an unparticularised allegation of unconscionable lending,51 there is no evidence of this matter
before the Commission aside from passing reference to a meeting on 3 January 2023.52
Accordingly, I reject the allegation.
[60] Having regard to my findings and the conclusions reached, I am satisfied that Mr
Stanowski was not forced to resign because of conduct, or a course of conduct, engaged in by
the respondent within the meaning of s 386(1)(b) of the Act.
Order and disposition
[61] I find that Mr Stanowski has not been dismissed within the meaning of s 386(1) of the
Act. Consequently, at the time Mr Stanowski made his application in the Commission, Mr
Stanowski was not a person who has been dismissed for the purposes of s 365 of the Act.
[62] The respondent’s jurisdictional objection is upheld.
[2023] FWC 1745
14
[63] The application is dismissed.
DEPUTY PRESIDENT
Appearances:
Mr R Stanowski, on his own behalf
Mr M Frederikson on behalf of the respondent
Hearing details:
2023.
Melbourne (via Microsoft Teams):
June 9.
Printed by authority of the Commonwealth Government Printer
PR764346
1 Form F8 general protections application involving dismissal (Exhibit 2) at [1.1]
2 Letter of offer accepted 18 October 2022
3 Transcript of proceedings dated 9 June 2023 (Transcript) at [89]
4 Transcript at [145]-[146]
5 Transcript at [131]
6 Transcript at [64]
7 Exhibit 2 at [3.1]
8 Exhibit 2 at [3.1]; Transcript at [70]
9 Submissions dated 2 June 2023 (Exhibit 1)
10 Ibid
11 Exhibit 2 at [3.1]
12 Transcript at [75]-[78]
13 Ibid at [81]
14 Email from Mr Stanowski to Ms Thomas dated 24 January 2023 with the subject “RE: FRIDAY”; Transcript at [83]
15 Exhibit 2 at [3.1]
16 Exhibit 2 at [3.1]; Transcript at [87]
17 Transcript at [94], [109]
18 Ibid at [95]
WORK COMMISSION THE SEALLBE THE
[2023] FWC 1745
15
19 Ibid at [96], [127]-[128]
20 Ibid at [111]
21 Transcript at [156]
22 Transcript at [157]
23 Email from Mr Stanowski to Mr Merrett and Mr Frederiksen dated 25 January 2023 with the subject “Thanks for the
opportunity”
24 Attachment to Exhibit 2
25 Transcript at [112]; Exhibit 1
26 Transcript at [164]
27 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152 at [54]
28 Transcript at [113]
29 Exhibit 2 at [3.1]
30 Ibid
31 Ibid
32 Exhibit 1
33 Exhibit 1; Transcript at 131
34 Exhibit 1
35 Ibid
36 Bupa Aged Care Australia Pty Ltd (t/as Bupa Aged Care Mosman) v Tavassoli [2017] FWCFB 3941; (2017) 271 IR 245 at
[47(2)]
37 Koutalis v Pollett [2015] FCA 1165 at [43]; Canberra Urology Pty Ltd v Lancaster [2021] FWCFB 1704 at [30]
38 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47(2)]
39 Australian Hearing v Peary [2009] AIRCFB 680; (2009) 185 IR 359 at [30]
40 Exhibit 1
41 Email from Mr Stanowski to Ms Thomas dated 5 December 2022 with the subject “Leave balance query”
42 Email from Ms Thomas to Mr Stanowski dated 6 December 2022 with the subject “Leave balance query”
43 Email from Ms Thomas to Mr Stanowski dated 24 January 2023 with the subject “FRIDAY”
44 Exhibit 2 at [3.1]; Transcript at [87]
45 Transcript at [168]-[170]
46 Transcript at [148]
47 Transcript at [133]
48 Transcript at [73]
49 Transcript at [133]
50 Transcript at [112]
51 Exhibit 1
52 Ibid; Transcript at [168]-[170]
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwcfb1704.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
