DECISION

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

Ravi Sathananthan
v
BT Financial Group Pty Limited
(U2019/5050)

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

1. What this decision is about

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

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

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

[4] It is common ground that Mr Sathananthan tendered his resignation from BT on 12 March 2019 and that his final day of work was 12 April 2019. Mr Sathananthan lodged this unfair dismissal application on 3 May 2019 and contends that under s.386(1)(b) of the FW Act he was forced to resign because of conduct, or a course of conduct, engaged in by the Respondent.

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

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

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

[8] I observe that there is no contest that the application was validly made within time 2 and that Mr Sathananthan was protected from unfair dismissal.3

2. The cases presented by the parties

2.1 Mr Sathananthan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2.2 BT Financial Group Pty Limited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3. Observations on the evidence

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

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

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

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

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

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

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

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

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

4. Findings about the key events

4.1 Chronology of events

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

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

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

•  The Applicant and the A-BSO first met sometime between 2012 and 2014, or possibly as late as September 2015. The two initially spoke by phone as Mr Sathananthan was a “Subject Matter Specialist” with expertise relevant to the A-BSO’s duties.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

•  On 30 November 2018, Mr Sathananthan was advised of the outcome of the First A-BSO Complaint via video conference with Ms Taddeo and Mr Cargill. Of the five allegations made against him, only two were substantiated: namely, that he had been tracking the times when the A-BSO was in the office, and that he was monitoring her work performance. The remaining three allegations were unsubstantiated. Mr Sathananthan says he continued on the conference with Mr Cargill after Ms Taddeo had left, and says that Mr Cargill suggested that Mr Sathananthan “duck, weave, bob” in relation to facing any further complaints of the A-BSO and suggested that the A-BSO had not presented matters in a forthcoming manner. 9 I find on balance that a conversation to that effect occurred. Mr Sathananthan was also provided with a written letter of outcome on this day which advised, in addition to the allegations and findings, that the concerns expressed in the Sathananthan Complaint about the A-BSO’s attendance and performance would be handled by her People Leader in line with Westpac policy and procedure.

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

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

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

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

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

•  On 28 February 2019, Mr Sathananthan was made aware of the Second A-BSO Complaint. A meeting also took place on 28 February between Mr Sathananthan, Mr Cargill and Mr Wilson - who appears to be a member of BT’s HR team. Certain comments made during this meeting attributed to Mr Cargill by Mr Sathananthan are contested, including: “[the A-BSO] is under a lot of pressure with this PCard issue…”, “these things can be used as a weapon against trying to deal with another issue (the PCard investigation)”, and “She is completely fucking mental. She’s trying every diversionary tactic to make the PCard thing go away.” Mr Cargill refutes these allegations, stating he did not make them or, in at least one case, they were actually Mr Sathananthan’s words.

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

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

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

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

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

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

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

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

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

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

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

4.2 The relationship between Mr Sathananthan and the A-BSO

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

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

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

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

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

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

[32] Mr Sathananthan contended the A-BSO worked from home on 3 July 2018 because she slept in and made a false “sick leave” request to Mr Cargill. This sets the context for the events of that day and I find this inherently plausible, at least to the extent that the A-BSO was not completely honest about her request not to attend the workplace on that day. Contemporaneous text messages strongly suggest that the A-BSO did indeed sleep through her alarm and that she did contact Mr Cargill that morning. 10 These also indicate that the A-BSO sought to work from home primarily because she slept in, rather than because her sore shoulder prevented her from attending the workplace.

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

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

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

“Don’t ever:

•  Ask me for help again.

•  Seek my input again.

•  Vent to me again.

•  Seek my counsel again.

•  Speak to me again (unless absolutely necessary in your capacity as a BSO supporting me as a BDM and my panel)

•  Expect and rely on my support again / “have your back”

•  Seek my coaching/mentoring again.

Ever.

I am done.

We are done. In both a professional and personal sense.

Please delete this number. It is for private use only for friends and family.” 15

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

[37] The “parting gift” given by Mr Sathananthan, and accepted by the A-BSO, also merits brief consideration. The gift was given as part of a 1 August 2018 exchange where Mr Sathananthan repeated his intention that the two share no further relationship other than as required for work. 16 The gift, a necklace from Tiffany & Co valued at approximately $660,17 can fairly be considered a piece of relatively “high-end” jewellery given the circumstances. Mr Sathananthan’s evidence was that he had originally bought the necklace intending to give it to the A-BSO for her birthday but instead gave it as a “parting gift” at his cessation of their relationship. Mr Sathananthan considers himself a generous person and the evidence in this matter supports such a conclusion.18 However, the circumstance of giving the A-BSO a gift of this nature during a discussion where Mr Sathananthan was seeking to confirm the end their relationship was capable of sending mixed signals. Accepting the gift also does not sit well with the competing narrative from the A-BSO about who it was that was seeking to end the relationship and seeking have it continue. Ultimately, the giving of the gift by Mr Sathananthan and the acceptance of this gift by the A-BSO was perhaps unusual in the circumstances and does not assist the adoption of the separate narratives advanced by either person.

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

[39] It is also clear on the evidence that Mr Sathananthan commenced to record observations about the A-BSO work attendance and other perceived deficiencies in her work performance. I will return to the appropriateness of doing so. It is also clear that this became known to the A-BSO and others in the workplace in mid-September 2018 and this would reasonably have raised concerns for both BT and the A-BSO.

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

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

The A-BSO’s complaints about Mr Sathananthan

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Mr Sathananthan’s complaints about the A-BSO

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

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

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

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

•  A lack of support from the A-BSO;

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

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

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

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

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

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

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

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

•  Lack of performance by BSO negatively impacting sales outcomes.

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

•  Blatantly rude, disrespectful, and argumentative.

•  Lack of reliability.

•  Dishonesty.

•  Poor representation of team brand.

•  Potential fraud.

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

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

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

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

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

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

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

… …

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

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

[54] No letter of allegations was put to the A-BSO in relation to the Sathananthan Complaint and it was not investigated by BT, other than with respect to the PCard issue. This was plainly a different process to that undertaken with the First A-BSO Complaint and Second A-BSO Complaint 23 and I will return to the significance of this shortly.

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

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

[57] It is clear that BT took the allegations made by the A-BSO seriously and subjected these to formal investigations. This was appropriate and necessary given the nature of the allegations and the requirements of the relevant policies. The findings made that most of these allegations was unsubstantiated was reasonably open to BT given the nature of that investigation and accords with the findings of the Commission, which by contrast were based upon sworn and challenged evidence. In relation to the findings that were made about Mr Sathananthan’s tracking of the A-BSO, I also consider that these were reasonable and proportionate. That is, no disciplinary action was taken and this is consistent with the fact that Mr Sathananthan was concerned about the perceived impact of the A-BSO’s performance was having upon his workload and was keen to have some defence in light of the events of 3 July 2018. The fact that Mr Cargill was based in Perth and was not present to directly monitor events in the Adelaide Office is also relevant. However, Mr Sathananthan was also warned that it was not his place to monitor and collect data about the A-BSO given that he was not her Manager. This was also clearly appropriate given that role and the fact that the breakdown in the personal friendship meant that there was always going to be some subjectivity in any such assessment.

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

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

[60] As part of his Document of Concerns, Mr Sathananthan also identified that he was falsely named in an inappropriate transaction on the A-BSO’s PCard. The issue about the PCard, which had been reported by a whistle-blower not identified to local management, was investigated by BT’s Group Investigations team 26 and led to some disciplinary outcomes not involving the Applicant. The fact that this investigation was conducted outside of HR and local management under the whistle-blower regime meant that Mr Sathananthan was not interviewed or advised of the investigation or the outcomes. This included the notion that he was named, at least by association, in one aspect.

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

[62] However, BT took no steps at all to ascertain any linkage to the workplace and this is to be contrasted with the approach taken to at least one of the A-BSO’s allegations against the Applicant. There was in fact no investigation and the differential treatment of this aspect, particularly without any proper explanation to Mr Sathananthan, would reasonably have caused anxiety for the Applicant and reinforced concerns that his complaints were not going to be addressed by BT.

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

[63] I have set out earlier, the substance of the response implemented by BT to address Mr Sathananthan’s other concerns. Leaving aside the workload and working hours aspects, the initiatives to reduce the degree of direct contact between the Applicant and the A-BSO were prudent and this included allocating the Perth-based BSO support. Although this involved dealing with time zone differences 28 and was less than ideal, the allocation of the support preferred by Mr Sathananthan was partially responsive to his concerns.

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

4.5 Mr Sathananthan’s workload and working hours

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

[66] Given the nature of the BDM position, no records of attendance or working hours were apparently retained by the parties 29 and it is evident that there was some flexibility as to working hours and the capacity to take some personal time during the nominal working hours. I have also taken into account Mr Cargill’s evidence that Applicant had, at least in theory, one of the best support (BSO to BDM) ratios and had relatively lower sales targets than the other BDMs in his region. However, these aspects do not always go directly to working hours and Mr Sathananthan’s evidence was that he was regularly working excessive hours was consistent and convincing.

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

[68] These statements included that during the Guided Questionnaire which took place on 20 September 2018, Mr Sathananthan expressed to Mr Cargill that he was working in excess of 70 hours per week. 30 On 15 October 2018 he further expressed to BT that he was “…managing the workload of a BDM and BSO (something that can only be achieved with excessive, unrewarded hours well beyond my contractual employment terms).”31 The Document of Concerns lodged by Mr Sathananthan on 4 November 2018 also stated that he raised concerns about working hours in excess of the National Employment Standards with his People Leader.32 On 5 November 2018 Mr Sathananthan, by email to Ms Taddeo, expressed that “In order to pick up the slack [due to the A-BSO’s performance] I have had to work in excess of 70hrs per week (including working on weekends, Public Holidays, and Annual Leave)”, as part of that same email he further states: “I have serious concerns there will come a point in time where I am no longer able to cope, and suffer a major episode.” 33 The substance of these discussions appears to be consistent with the evidence of the Respondent, albeit with some differences as to the detail, such as Ms Taddeo’s concession that Mr Sathananthan had expressed “grave concerns” about working excessive hours, but that she did nothing to directly address those concerns other than notify Mr Cargill.34 Although Mr Cargill during his oral evidence rejected the notion that Mr Sathananthan was working excessive hours, the Applicant’s evidence on these matters was not substantively challenged during cross-examination. I observe in that regard that BT challenged the suggestion that Mr Sathananthan had been required to work even whilst on annual leave; but the Applicant’s evidence that he continued to be contacted by advisors and dealt with their issues in the absence of support staff during such periods was credible.35

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

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

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

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

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

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

4.6 Mr Sathananthan’s health

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

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

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

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

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

5. What is a dismissal for present purposes?

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

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

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

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

(b) the person was an employee:

(i) to whom a training arrangement applied; and

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

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

(c) the person was demoted in employment but:

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

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

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

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

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

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

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

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (footnotes omitted)

[81] A relatively recent Full Bench reinforced the relevance of the above approach in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 44 in the following terms:

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

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

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

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

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

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

[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.” (footnotes omitted)

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

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

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

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

•  Conduct includes an omission; 45

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[90] BT further contended that the Applicant should have been aware of Westpac’s Consequence Management Framework as it was mentioned in the outcome letter 48 from the First A-BSO Complaint. The framework is mentioned in the following terms:

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

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

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

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

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

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

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

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

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

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

“387 Criteria for considering harshness etc.

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

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

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

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

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

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

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

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

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

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

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

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

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

[101] It is also clear from the authorities that the reason for termination must be defensible or justifiable on an objective analysis of the relevant facts before the Commission. That is, it is not enough for an employer to rely upon its reasonable belief that the termination was for a valid reason.⁵⁰ Equally, facts justifying dismissal, which existed at the time of the termination, should be considered, even if the employer was unaware of those facts and did not rely on them at the time of dismissal.⁵¹

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

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

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

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

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

[106] This did not occur.

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

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

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

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

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

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

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

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

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

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

[112] I deal with these two considerations together.

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

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

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

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

Conclusion on nature of dismissal

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

“381 Object of the Part

… …

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

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

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

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

8. Remedy

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

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

“Division 4—Remedies for unfair dismissal

390 When the FWC may order remedy for unfair dismissal

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

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

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

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

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

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

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

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

… …

392 Remedy—compensation

Compensation

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

Criteria for deciding amounts

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

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

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

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

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

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

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

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

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. Disregarded

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

Compensation cap

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

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

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

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

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

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

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

393 Monetary orders may be in instalments

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

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

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

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

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

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

The effect of the order on the viability of BT

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

The length of Mr Sathananthan’s service with BT

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

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

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

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

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

[131] The assessment, by definition, requires some speculation, based upon evidence and reasonable inferences. In Constable, 61 Anderson DP assessed the anticipated period of employment in the case of a forced resignation by, in effect, recognising the reasonable expectations of the applicant in that matter, but for the events leading to the forced resignation, to ongoing employment; but also recognised that the strained environment and damaged relationships and an earlier resignation that had been withdrawn, meant that ultimately there would have been a mutual or forced parting of the ways.62 Whilst each case must be assessed strictly on its own facts and merits, the general basis of this approach appears to be appropriate.

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

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

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

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

[135] I accept that Mr Sathananthan has made efforts to mitigate his losses including by making approaches to various contacts in the insurance, financial services and related industries seeking employment opportunities. His evidence 63 was that he had undertaken these, and other, activities over a period of time since his dismissal.

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

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

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

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

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

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

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

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

[141] The maximum compensation limit in this case is the lesser of 26 weeks remuneration 65 before the dismissal occurred ($68,985.0066) or the stated statutory cap of $69,450.⁶⁷ The amount of compensation otherwise arising from the statutory considerations is less than the lower figure.

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

Conclusions on remedy

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

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

9. Conclusions and order

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

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

[147] An Order 69 to give effect to this decision is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

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

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

Hearing details:

2019

Adelaide

14, 15, 28 August and 17 September.

Final written submissions:

Mr Sathananthan - 17 September 2019.

BT Financial Group Pty Limited - 18 September 2019.

Printed by authority of the Commonwealth Government Printer

<PR711224>

1 Section 399(1) of the FW Act.

 2   Section 394(2) of the FW Act.

 3   Section 382 of the FW Act. Mr Sathananthan had served the minimum employment period and was not paid above the high income threshold.

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

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

 6   The South Australia People Leader at that time.

 7   Exhibit R3 at paras 35.10-35.11.

 8   Annexure 6 of Exhibit A1.

 9   Transcript PN525-526.

 10   Annexure 4 of Exhibit A1.

 11   Annexure 5 of Exhibit A1.

 12   Exhibit R3 at para 35.

 13   Exhibit A1 at para 24.

 14   Transcript PN1801-1803.

 15   Annexure 6 of Exhibit A1.

 16   Exhibit A2 at para 17.

 17   Annexure 1 of Exhibit R3.

 18   For example, Exhibit A2 at para 30(f). Mr Sathananthan variously provided gifts of concert tickets and other personal items to colleagues, and on occasions, to their families.

 19   Annexure 7 of Exhibit A1.

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

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

 22   Annexure 14 of Exhibit A1.

 23   For clarity, the Second A-BSO Complaint had not been lodged at this point.

 24   Annexure 5 of Exhibit R1.

 25   Transcript PN1341-1348.

 26   Transcript PN1391, 1413-1419.

 27   Rose v Telstra AIRC Print Q9292, 4 December; Farquharson v Qantas Airways Limited, PR971685 (2006) 155 IR 22.

 28   The degree of overlap between working days in each location varied depending upon the time of year and this would reasonably have impacted upon the effectiveness of the arrangements.

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

 30   Annexure 10 of Exhibit A1. The fact that Mr Sathananthan raised the issue is also confirmed by Mr Cargill - Annexure 5 of Exhibit R3.

 31   Annexure 13 of Exhibit A1.

 32   Annexure 14 of Exhibit A1.

 33   Annexure 16 of Exhibit A1.

 34   Transcript PN1371-1387.

 35   Transcript PN625 to PN629.

 36   Mr Sathananthan’s then People Leader - Annexure 1 of Exhibit A1.

 37   The evidence of Mr Cargill.

 38   Exhibit A1 at paras 90-91.

 39   Exhibit A1 at para 92.

 40   Closing Submissions of the Respondent at para 46.

 41   Subsections (2) and (3) are not relevant to this matter and are included only for context.

 42   Workplace Relations Act 1996 (Cth).

 43   [2006] AIRC 496 (PR973462).

 44   [2017] FWCFB 3491.

 45   Section 12 of the FW Act.

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

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

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

49 Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, (2004) 133 IR 458 per Ross VP, Williams SDP, Foggo C and endorsed by the Full Bench in Industrial Automation Group Pty Ltd T/A Industrial Automation [2010] FWAFB 8868, 2 December 2010 per Kaufman SDP, Richards SDP and Hampton C at par [36].

50 See Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1; King v Freshmore (Vic) Pty Ltd AIRCFB Print S4213 per Ross VP, Williams SDP, Hingley C, 17 March 2000; Edwards v Giudice (1999) 94 FCR 561; Crozier v Palazzo Corporation Pty Limited t/as Noble Park Storage and Transport AIRCFB Print S5897 per Ross VP, Acton SDP and Cribb C, 11 May 2000 and Rode v Burwood Mitsubishi AIRCFB Print R4471 per Ross VP, Polites SDP, Foggo C, 11 May 1999.

51 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 373, 377‒378; Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1, 14. See also Dundovich v P & O Ports AIRC PR923358 8 October 2002, per Ross VP, Hamilton DP, Eames C at [79]; Lane v Arrowcrest (1990) 27 FCR 427, 456; cited with approval in Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410, 467 and 468.

52 See Trimatic Management Services Pty Ltd v Daniel Bowley [2013] FWCFB 5160.

53 RMIT v Asher (2010) 194 IR 1. See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [75].

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

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

56 [2015] FWCFB 873.

57 Sprigg v Paul’s Licensed Festival Supermarket (1998) 88 IR 21. See also Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431.

58 Smith and Others v Moore Paragon Australia Ltd (2004) 130 IR 446.

59 McCulloch v Calvary Health Care Adelaide [2015] FWCFB 873.

60 McCulloch at [27].

 61   Constable v 4WD Accessory Wholesale Pty Ltd T/A Caddy Adelaide [2018] FWC 6042.

 62   At [173] to [182].

 63   Exhibit A1 at para 98.

64 See the discussion of contingencies in McCulloch at [20] – [23]; Bowden v Ottrey Homes Cobram and District Retirement Villages Inc T/A Ottrey Lodge [2013] FWCFB 431, at par [52]; Ellawala v Australian Postal Corporation AIRC Print S5109, per Ross VP, Williams SDP and Gay C, 17 April 2000 and in Enhance Systems Pty Ltd v James Cox AIRC Print PR910779, per Williams SDP, Acton SDP and Gay C, 31 October 2001.

 65   It is the higher of the amount of remuneration received or entitled to be received for the previous 26 weeks period that is to be used under s.392(6)(a) of the FW Act.

 66   Mr Sathananthan’s gross annual remuneration at the time of the alleged dismissal was $137,970.00.

67 Section 392(5) of the FW Act. I note that as the high income threshold was adjusted on 1 July 2019, the statutory cap is now a higher figure.

 68   Annexure 2 of Exhibit A1.

 69   PR713366.