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Fair Work Act 2009
s.394—Unfair dismissal
Trent Bethune
v
Swiggle Glass Units Pty Ltd t/a Barton Glass
(U2024/11503)
DEPUTY PRESIDENT COLMAN MELBOURNE, 20 DECEMBER 2024
Unfair dismissal application – no dismissal – any dismissal not unfair – application dismissed
[1] Trent Bethune has made an application for an unfair dismissal remedy under s 394 of
the Fair Work Act 2009 (Act). Mr Bethune contends that he was dismissed from his
employment with Swiggle Glass Units Pty Ltd (Barton) without a valid reason and in
circumstances that were unfair. Barton contends that Mr Bethune resigned from his
employment and that his application must therefore be dismissed.
[2] Mr Bethune gave evidence that on Tuesday 17 September 2024 he attended work as
usual, but that by late morning he was feeling unwell and decided to go home. He said that
before leaving work, he followed normal procedure and discussed the matter with his
supervisor, Dale Leiper, who approved his decision to leave. Mr Bethune said that he was
unwell on each of the following two days, and that early on the morning of 18 and 19 September
2024, he texted Mr Leiper to tell him that he would not be coming to work. On the afternoon
of 19 September 2024, Mr Bethune noticed two emails from Michael Ryan, Barton’s
accountant. One was from 18 September 2024 and stated that it appeared that he no longer
required his position. It asked whether he wanted his entitlements finalised. The other was from
that morning and stated that, as he had not replied, the company would finalise his entitlements.
On Friday 20 September 2024, Mr Bethune went to the office but was told to leave. Mr Bethune
said that Barton later told him that he had resigned, but he had not resigned.
[3] Mr Bethune said that at no point did he provide any written or verbal communication to
Barton indicating an intention to leave his employment voluntarily. He said that his
understanding was that in order to resign he would need to give Barton formal written notice of
his resignation, of a specified period, and that he did not follow this process because he did not
resign. Mr Bethune denied saying or doing anything to convey to Barton that he was ending his
employment. He said that he had simply been unwell on the Tuesday because his hand was
infected, and that his supervisor had approved his decision to go home sick.
[4] Joseph Connell is a former work colleague of Mr Bethune. Mr Connell’s evidence was
that on the morning of 17 September 2024, he and Mr Bethune had a discussion with Mr Leiper
about leaving work because both of them felt unwell. Mr Connell thought that he might have
[2024] FWC 3548
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 3548
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COVID. Mr Connell said that as he was leaving the site, he saw Mr Sakic, who asked him
whether he was going home sick, whereupon Mr Connell put a finger to one side of his nose
and blew mucus onto the grass, and Mr Sakic said, ‘fair enough’. Mr Bethune and Mr Connell
then left work together.
[5] Mr Ryan gave evidence that on Tuesday 17 September 2024 at around 10.30, Mr
Bethune came to his office and demanded more money and said that otherwise he was no longer
going to work at the company. Mr Ryan told Mr Bethune that he was not going to get any more
money. Mr Ryan’s evidence was that he was midway through his sentence when Mr Bethune
threw his hands up and walked out. Mr Ryan later heard from Mr Leiper and Mr Sakic that Mr
Bethune had proceeded to leave the workplace. On Wednesday 18 September 2024, Mr
Bethune did not come to work. Mr Ryan sent him an email stating that it appeared that he no
longer required his position and asked whether he wanted his entitlements paid out. No reply
was received. On 19 September 2024, Mr Ryan sent Mr Bethune another email, stating that as
no reply had been received, the company would finalise his entitlements.
[6] Mr Leiper’s evidence was that on the morning of 17 September 2024, Mr Bethune put
his head inside his office door and said to him, ‘I am out of here’, and then left the premises.
He said that Mr Bethune did not mention any medical matter, and that he did not ask whether
he could go home. He simply left. Mr Connell, who left with Mr Bethune, did not say anything.
Mr Leiper then sent a message to the production WhatsApp group stating that the two of them
had just left. Mr Leiper said that on each of the next two mornings he received text messages
from Mr Bethune which contained two words: ‘not in’. After receiving the second text, Mr
Leiper replied with the letters ‘WTF?’ as he did not know why Mr Bethune was contacting him.
Mr Leiper said that at no time did Mr Bethune say that he was not working because of any
medical issue.
[7] Mr Sakic gave evidence that on the morning of 17 September 2024, Mr Bethune said to
him, ‘Fuck this place, I am leaving’. Mr Bethune then said that he had ‘finished at Barton Glass’.
Mr Sakic said that neither Mr Bethune nor Mr Connell said anything to him about being unwell.
[8] I make the following factual findings. First, I accept Mr Ryan’s evidence about his
discussion with Mr Bethune on the morning of 17 September 2024. I find that Mr Bethune said
that he wanted more money. He did not deny this point. He explained that the company had
recently given him a small pay rise but had removed his bonus, and he wanted this rectified. Mr
Bethune denied saying that he would resign if this did not happen. I do not believe him. I prefer
and accept the evidence of Mr Ryan that Mr Bethune said that he would not work for the
company if his demand was not met. Mr Ryan’s evidence was clear, detailed and convincing.
Secondly, I accept the evidence of Mr Leiper about his interaction with Mr Bethune that
morning. His evidence was entirely credible. Mr Leiper pointedly denied that Mr Bethune said
that he was leaving work due to any medical issue. Thirdly, I accept Mr Sakic’s evidence. I find
that Mr Bethune told him that he had finished at Barton, and that he said, ‘fuck this place I am
leaving’, and also that he had ‘finished’ at Barton. Mr Bethune denied that he said these things.
I reject this. I believe Mr Sakic. He was a credible and straightforward witness. He said that
neither Mr Bethune nor Mr Connell said anything to him about being unwell. I find that this
was the case.
[2024] FWC 3548
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[9] Mr Bethune’s evidence was not convincing. He said that the company should have
known that he was unwell because his hand was bandaged. But if he had told Mr Leiper that he
was unwell, as he claimed to have done, it would not be relevant to talk about what the company
should have known. Mr Bethune said that he followed procedure when leaving the site, but
there is no indication of any procedure, or that he followed one. Mr Bethune also said that ‘not
many people were well’ in the workplace; that his friend Mr Connell was also unwell; and that
Mr Leiper himself was later unwell. He seemed to suggest that there was contagion at the
workplace, perhaps for the purpose of bolstering his contention that he was in fact unwell on
17 September 2024 and left work for this reason. But Mr Bethune claimed to be unwell because
of his infected hand, not because he had contracted an illness from someone else.
[10] I find that the reason for which Mr Bethune left the site was the one that he gave to Mr
Ryan: he did not get his additional pay, so he left his employment, just as he said he would do.
This is consistent with the evidence of Mr Leiper and Mr Sakic about what Mr Bethune told
them. He was ‘out of here’. And he had ‘finished’ at Barton.
[11] The evidence of Mr Ryan, Mr Leiper and Mr Sakic was clear, consistent and credible.
Mr Bethune contends that all three of them were lying about their interactions with him on 17
September 2024, as they all work together and were towing the same line. I reject this. I find
that they were telling the truth. Their accounts are complementary components of a case
narrative that is entirely sensible. I reject the suggestion of collusion. On the other hand, I find
it highly improbable that Mr Bethune would decide that he was unwell and had to go home
shortly after a discussion in which, on his own evidence, his request for more money had been
rejected. I also find it improbable that two workers, who also live together, should feel unwell
for different reasons, and that they should both need to go home at exactly the same time on the
same day. As for Mr Connell, his employment with the company ended for reasons that are not
before the Commission, however Barton tendered an email sent to it by Mr Connell on 12
October 2024 expressing interest in reemployment, in the course of which he recognised that
his ‘track record in regard to absences’ was ‘unacceptable’ but that he would do better in future.
Evidently, he was not rehired.
[12] I find that Mr Bethune did not leave the premises wholly or partly because he was
unwell. I find that he left the premises because he had not been given the additional money that
he had sought from Mr Ryan. From this conduct, together with his statements to Mr Leiper and
Mr Sakic, it was objectively clear that Mr Bethune was resigning from his employment with
Barton. He did precisely what he told Mr Ryan he would do if he did not receive a pay rise.
[13] Mr Bethune’s text messages to Mr Leiper on the following two days stating ‘not in’
suggest that Mr Bethune became unsure about whether he had done the right thing by walking
out on his employment on 17 September 2024. But that changes nothing about what he did and
said on 17 September 2024, the effect of which was to unambiguously resign.
[14] Mr Bethune suggested that the company forced him to resign. It did nothing of the kind.
Mr Ryan sought to confirm Mr Bethune’s intentions in his email messages of 18 and 19
September 2024 and received no response. But I find that his intentions were clear. Mr Bethune
said that he never told the company that he resigned. But that is irrelevant. It is not necessary
to use word ‘resign’ in order to end one’s employment. It is also irrelevant that Mr Bethune did
[2024] FWC 3548
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not provide any formal notice of termination. This might entail a breach of contract on his part,
but it does not prevent the termination from taking effect.
[15] It is clear that Mr Bethune was not dismissed. But if there was a dismissal, it was not
unfair, taking into account the mandatory considerations in s 387 of the Act. There was a valid
reason for dismissal related to conduct (s 387(a)). Mr Bethune walked off the job without
permission or a legitimate reason. This was misconduct. Mr Bethune was not notified of the
reason for any dismissal or given a chance to respond to those reasons (ss 387(b) and (c)), but
I would assign this little weight in the circumstances. There was no unreasonable refusal to
allow a support person at discussions relating to dismissal (s 387(d)). Any dismissal related to
conduct, not performance, so s 387(e) is not relevant. Section 387(f) and (g) carry no weight in
my view. As to s 387(h), I do not consider that there are any other circumstances that are
indicative of unfairness. If there was a dismissal, I would conclude that it was not harsh, unjust
or unreasonable, and therefore not unfair.
Conclusion
[16] Mr Bethune ended his own employment. It was not terminated on Barton’s initiative,
nor was he forced to resign because of the conduct, or a course of conduct, engaged in by the
company (see s 386). He was not dismissed. In any event, any dismissal was not unfair. Mr
Bethune’s unfair dismissal application is dismissed.
DEPUTY PRESIDENT
Appearances:
T. Bethune for himself
M. Ryan for the respondent
Determinative conference details:
2024
Melbourne
18 December
Printed by authority of the Commonwealth Government Printer
PR782683
WORK COMMISSION THE SEAL OF THE F
