Fair Work Act 2009
s.394—Unfair dismissal

Samuel Rosenbaum
v
OzNDIS Pty Ltd
(U2021/8382)

Application for unfair dismissal remedy - jurisdictional objection - Was the applicant dismissed - Was the dismissal consistent with the Small Business Fair Dismissal Code - dismissal unfair - compensation awarded.

[1] On 15 September 2021, Mr Samuel Rosenbaum (the Applicant) made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against OzNDIS Pty Ltd (the Respondent).

[2] On 13 October 2021, the Respondent filed a Form F3 Employer’s response objecting to the application on the jurisdictional grounds that the Applicant had not been dismissed and in the alternative that if there was a dismissal, it was in accordance with the Small Business Fair Dismissal Code.

[3] The matter was unable to be resolved at conciliation on 14 October 2021 and was allocated to me for consideration of both the jurisdictional issues and the substantive merits of the application, if required. The matter was listed for Hearing via Microsoft Teams and in-person in Brisbane on 23 November 2021. At the commencement of proceedings, the parties consented to the matter being dealt with as a determinative conference.

[4] Mr Fabian Robinson (Mr Robinson) advised that the Respondent was no longer pursuing a jurisdictional objection that the Applicant had not satisfied the minimum employment period as it was accepted he had been a permanent employee.

BACKGROUND

[5] The Applicant commenced employment with the Respondent from mid-September 2019 and signed an employment agreement on 11 November 2019. The Respondent stated that the Applicant transitioned to full time employment on 20 October 2020. The Applicant was engaged as a Manager where his responsibilities were to organise and coordinate office administration and procedures, in order to ensure organisational effectiveness, efficiency and safety. The Applicant was responsible for developing intra-office communication protocols, streamlining administrative procedures, inventory control, office staff supervision and task delegation. At the determinative conference, the Applicant advised that around March or April 2020 until approximately February or March 2021 he was a Director of the Respondent.

[6] The Applicant stated that he had not been provided with an official notification of termination, however on 28 July 2021, he was locked out of the Respondent’s IT Systems and his phone was suddenly barred from making calls. The Applicant alleged that he was advised by the Respondent that his employment had been suspended. Then on 25 August 2021, the Applicant received an email from the Respondent which, he says, solidified a clear breakdown of professionalism and their employer/employee relationship.

[7] The Respondent alleged that on 28 July 2021, the Applicant indicated he was feeling overwhelmed during a telephone call and became increasingly abusive before terminating the call. The Respondent placed the Applicant on paid leave on 29 July 2021 and requested a meeting with the Applicant the following day, on 30 July 2021, to discuss the circumstances surrounding this telephone call. The Applicant did not attend this meeting and the Respondent stated that the Applicant has since refused to attend work or engage in a conversation with the Respondent to find a resolution to these issues. The Applicant ceased engaging in active and meaningful duties with the Respondent on and from 30 July 2021. The Respondent further alleged that the Applicant was placed on unpaid leave from 30 July 2021 and, to date, has not been dismissed.

[8] The Respondent raised two jurisdictional objections to the application for an unfair dismissal remedy: that the Applicant was not dismissed from his employment and instead abandoned his employment, and in the alternative, that the Respondent has complied with the Small Business Fair Dismissal Code.

LEGISLATION

[9] For a person to be protected from unfair dismissal under the legislation, they must have been dismissed. Section 385 provides the basis for considering whether a person has been dismissed:

“385 What is an unfair dismissal

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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[10] On the meaning of “dismissed”, s.386 of the Act further provides:

“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 for 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.”

[11] While the Respondent denied that the Applicant had been dismissed, it submitted in the alternative that if the Commission was satisfied that the Applicant had been dismissed, the dismissal was in accordance with the Small Business Fair Dismissal Code (the Code).

[12] The Small Business Fair Dismissal Code is set out under s.388 of the Act, which provides:

“388 The Small Business Fair Dismissal Code

(1) The Minister may, by legislative instrument, declare a Small Business Fair Dismissal Code.

(2) A person’s dismissal was consistent with the Small Business Fair Dismissal Code if:

(a) immediately before the time of the dismissal or at the time the person was given notice of the dismissal (whichever happened first), the person’s employer was a small business employer; and

(b) the employer complied with the Small Business Fair Dismissal Code in relation to the dismissal.”

[13] There is no dispute that, in accordance with s.23 of the Act, the Respondent is a small business employer, employing less than 15 employees at the time of the Applicant’s dismissal.

[14] The Code provides:

“Small Business Fair Dismissal Code

Commencement

The Small Business Fair Dismissal Code comes into operation on 1 July 2009.

Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.

Other Dismissal

In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee’s conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement. The small business employer must provide the employee with an opportunity to respond to the warning and give the employee a reasonable chance to rectify the problem, having regard to the employee’s response. Rectifying the problem might involve the employer providing additional training and ensuring the employee knows the employer’s job expectations.

Procedural Matters

In discussions with an employee in circumstances where dismissal is possible, the employee can have another person present to assist. However, the other person cannot be a lawyer acting in a professional capacity.

A small business employer will be required to provide evidence of compliance with the Code if the employee makes a claim for unfair dismissal to Fair Work Australia, including evidence that a warning has been given (except in cases of summary dismissal). Evidence may include a completed checklist, copies of written warning(s), a statement of termination or signed witness statements.”

SUMMARY OF EVIDENCE AND SUBMISSIONS

[15] At the determinative conference, Mr Rosenbaum as the Applicant and Mr Robinson on behalf of the Respondent gave evidence concurrently. The parties are in dispute as to whether the Applicant was or was not dismissed by the Respondent. The Applicant submitted that he was ultimately dismissed via an email sent on 25 August 2021 by the Respondent which demonstrated a clear break down of the relationship between the parties. However, at the determinative conference, the Applicant submitted that the dismissal occurred on 28 July 2021 based on the forced lock out and removal of access to communication systems. The Respondent refuted this, advising that the Applicant was not dismissed and at no time was this communicated to the Applicant. Rather, the Respondent submitted that the Applicant had abandoned his employment, whilst further noting several behaviour and performance issues exhibited by the Applicant.

[16] The Applicant alleges that the catalyst for his subsequent employment issues with the Respondent were triggered by the involvement of Mr Robinson, Managing Director of the Respondent, in the care arrangements for the Applicant’s mother, who was, at the time, in palliative care at Prince Charles Hospital, and who was a case management client of the Respondent.

[17] Let’s Get Care (LGC), the aged care provider for the Applicant’s mother, raised concerns that services from the Respondent were not being appropriately provided, and advised that they had terminated the Respondent’s services effective from 30 June 2021. The Applicant’s mother was the only client in common with the Respondent and LGC, an arrangement the Applicant had put in place himself based on a previous working relationship. Following these concerns, the Applicant lodged a complaint in his capacity as his mother’s carer with the Respondent regarding the issues raised by LGC. The Applicant advised that an investigation into the complaint was conducted by Mr Jason Clarke (Mr Clarke), an employee of the Respondent.

[18] On 22 July 2021, the Applicant was advised of the outcome of the investigation in a letter from Ms Maria Cassar (Ms Cassar), which stated that after a thorough investigation, the concerns raised by LGC were unfounded.

[19] On 27 July 2021, the Applicant sent Mr Robinson a text message stating that “I’m taking a personal leave day I’m not doing to great. Still gonna try and work on some billing at some point but mostly hiding from the word” [sic].

Events of 28 July 2021

[20] On the night of 28 July 2021, the Applicant engaged in a telephone conversation with Mr Robinson. Mr Robinson advised that initially he had joined the Applicant in a call with Mr Clarke to discuss three different insurance policies. The Applicant expressed that he did not wish to engage in a group chat, and Mr Clarke left the call shortly after. According to Mr Robinson, the Applicant expressed that he felt overwhelmed and that he was “seeing numbers floating around on the page”. Mr Robinson explained to the Applicant that they were doing a simple task required by legislation for insurance.

[21] During this discussion, the Applicant advised Mr Robinson that he was intending to email LGC to advise of the outcome of his mother’s investigation. Mr Robinson advised that he was not aware of the complaint prior to this call as Mr Clarke was conducting the investigation and Ms Cassar did the management action. Additionally, while the Applicant’s mother’s allocated support coordinator was on leave, Mr Robinson was involved in her care, therefore it was inappropriate for him to be involved in the investigation. The Applicant alleged that Mr Robinson became aggressive, insisting that the Applicant not contact LGC and that if he did, there would be consequences. When the Applicant objected to this, Mr Robinson allegedly became aggressive and dismissive that there were any issues and advised the Applicant that he was “suspended with pay” as he was “out of control”. The Applicant disconnected the call as he felt professional boundaries had been crossed and further conversation with Mr Robinson would no longer be appropriate.

[22] The Respondent refuted this, submitting that the Applicant had advised he sent a message to LGC after being instructed not to, as the correct procedure was at an organisational level and not a personal level. The Applicant was employed part-time in an administration capacity, however, according to the Respondent, the Applicant was making financial decisions independently and erroneously, and presented with an interpersonal manner that caused discomfort with other staff members and resulted in a lost contract between the Respondent and another coordination company.

[23] At the determinative conference, the Respondent advised that it was their view the outcome should first be communicated by the Respondent as it was a complaint raised by LGC to the Respondent. Mr Robinson advised that after this communication had been sent, the Applicant was free to engage with the LGC in his capacity as a family member of his mother. Mr Robinson thought it would be inappropriate for the Applicant to be the first to advise of the outcome when he was an employee of the Respondent which could thereby potentially raise issues of conflict of interest. The Applicant had planned on providing LGC with the outcome report that Ms Cassar had given him as well as advising that the allegations had been unfounded and untrue and that the cause for termination of the Respondent’s services for the Applicant’s mother was not consistent with the wishes of his mother. The Applicant, however, later agreed to send the email to LGC by the end of the week being Friday, 30 July 2021.

[24] Following the telephone call between the Applicant and Mr Robinson on 28 July 2021, later that same night, the Applicant alleged that his work mobile was blocked from making any outbound calls. The Applicant explained that his work mobile was also permitted for personal use, as had been agreed with the Respondent. The Applicant further discovered that all of his access to company IT systems and hardware had also been removed at this time. At the determinative conference, the Respondent confirmed that the Applicant’s access to all Office 365 platforms had been removed by midday 29 July 2021, if not on the evening before. Mr Robinson explained that he was concerned about the Applicant communicating with people who engage with the Respondent’s services, who often have complex psychosocial issues.

[25] At approximately 8:30pm on 28 July 2021, Mr Robinson sent a text message stating, “I am directing you as your employer to answer the phone”, in which the Applicant responded with “I would like a representative present”. The Applicant queried as to whether Mr Robinson blocked his phone from making any outgoing calls and stated that he cannot use his computer as it is tied to the password. The Respondent agreed that telephone restrictions were put in place. The Respondent stated that this was done after the Applicant allegedly made several late night calls to colleagues in a distressed state which was escalating. Mr Robinson submitted that the Applicant informed him that he felt overwhelmed and Mr Robinson did not want any administrative telephone calls to go to the Applicant at this time. At the hearing, the Applicant conceded to having called Ms Cassar where he raised concerns that Mr Robinson was using his position, as the employer, to control the outcome of a complaint he made regarding services to his mother. The Applicant stated that Ms Cassar confirmed that he was suspended with pay.

[26] The Respondent advised that it was several days later that Mr Robinson was contacted by a staff member assigned to prepare audits, saying that they could not find any files and all staff files were empty. Mr Robinson said when he logged into the system to investigate, he discovered that he had been blocked from accessing his own system. The Respondent alleged that the Applicant had placed layers on files and had removed, altered and logged in without permission.

[27] The Applicant gave evidence that he was of the view the dismissal occurred on 28 July 2021, based on the forced lock out and removal of access to communication systems which was his only way to access the work environment. The Applicant confirmed his access to both his phone and to the OzNDIS IT system were revoked.

[28] It was put to the Applicant that he was contacting staff late at night, and this was the reason for cutting off the phone. The Applicant said he made a phone call to Ms Cassar where he raised concerns that Mr Robinson was using his position as his employer to control the outcome of a complaint he made regarding services to his mother.

[29] The Applicant said he told Mr Robinson he had received an outcome of the report following a complaint he made himself to OzNDIS on behalf of his mother.

Events of 29 July 2021

[30] On 29 July 2021, Mr Robinson said he attempted to call the Applicant. However, the Applicant did not answer the call. Shortly after, at 9:50am, Mr Robinson sent a text message, stating, “I hope you’re not answering because you’re having a big sleep in! I’ll try you again in an hour to check in.” The Applicant responded, via text message, that he wanted to call the hospital and that his phone is also used as a personal phone. The Applicant explained that his mother was admitted at the Prince Charles Hospital. The Respondent offered to facilitate a hospital call. The Applicant advised that Mr Robinson called the Applicant again in which the Applicant requested that Mr Robinson unblock the phone from making calls. The Applicant further raised during the conversation that what Mr Robinson was doing was not okay for suspending him without reason or notice after disagreeing with Mr Robinson’s directive. The Applicant was of the view that this was a clear conflict of interest regarding the care for the Applicant’s mother. The Applicant stated that Mr Robinson dismissed these concerns. The Respondent refuted this stating there was no conflict of interest. Mr Robinson instructed the Applicant not to act as a family member with regard to work related internal investigations.

[31] Mr Robinson called the Applicant into a conference call later that same day with Prince Charles Hospital as an aim to address the Applicant’s desire to call the hospital without removing the outgoing restrictions. The Applicant did not want to engage in a personal conversation regarding his mother’s care with the hospital staff and the doctors where Mr Robinson was on the line potentially listening. The Applicant therefore refused to take part. The Respondent submitted that Mr Robinson contacted Optus to divert incoming calls. However, they had erroneously blocked all access. Mr Robinson called the hospital on the Applicant’s behalf so that the Applicant could speak to them in consideration of this. The Respondent noted that the Applicant had involved Mr Robinson in all aspects of his mother’s care and advocacy, and Mr Robinson contended that at times, Mr Robinson mediated between hospital staff and the Applicant when the Applicant’s mood was erratic and hostile. It was the Respondent’s view that the Applicant became fixated about the whole issue being related to him not following a directive, he was unable to engage with or hear any concerns raised despite being told repeatedly that it was not about that. Mr Robinson sent a text message shortly after advising, “You’re cutting off your nose to spite your face. I had PCH on the other line. I’ll try again in 10 minutes.”

[32] The Applicant responded with a photo image with a quote reading, “‘To rescue people from the consequences of their actions is to render them powerless’ – Henry Cloud”. In addition to this, the Applicant wrote to Mr Robinson, via text message, the following:

“This is beyond a joke and I’m glad you are getting such a kick out of controlling me and wanting to take power away from me. I don’t want you on the phone at the same time in fact I don’t know if we are going to be friends after this.”

[33] The Applicant submitted that Mr Robinson sent a screenshot of a timer with 9 minutes and 25 seconds remaining. Mr Robinson then texted the Applicant, “That’s your choice. Honestly, I’d be think carefully because what you Are considering as me removing your control is actually taking my control back” [sic]. The Applicant replied with the following:

“I’m glad you think is being friends is about control and that taking freedom away if ok. If that’s really what you really feel I don’t know anymore, I didn’t think you would actually go to this [level] become you didn’t like someone I was planning in relation to my mother”.

[34] Mr Robinson wrote back, via a text message, stating the following:

“Like I said Sam I was actually just going to connect you put me on mute and put the phone in the bathroom because I’ve got my own shit going on on the other phone this is all you and all things that you are doing I am happy to negotiate that you are not in control because I am sick of the absolute total lack of respect it has reached a fever pitch it’s been going for over 12 months there has been no sustained or episodic improvement you are telling people different things you are causing trouble last nights phone calls between Jason and Maria are not getting paid absolute rubbish[.]

I have told staff they are not to enter in communications from you Jason Maria Karen anyone because you won’t be seeing need to fill out and I’m happy to talk to you when you do feel like you are not the God of everything[.]

But you know what I was actually hoping for a little bit of contrition.”

[35] Mr Robinson then attached a screenshot image of the timer on a phone which showed 1 minute and 24 seconds remaining. Mr Robinson then wrote, via text, “I’m not doing this through text either. You’re 31 Sam… you’re too old for tantrums”.

[36] There were back and forth text messages between the Applicant and Mr Robinson between 10:37am and 12:48pm on 29 July 2021. These text messages were not included in the Applicant’s materials, and in the Respondent’s materials, many of his text messages were redacted. The unredacted content in the Respondent’s materials indicated that Mr Robinson and the Applicant discussed further the restriction of the phone use. Mr Robinson advised, in his text messages, that “We’ve never discussed use of the phone…” and that Mr Robinson was to call the Applicant at the end of the timer.

[37] At 10:37pm on 29 July 2021, Mr Robinson sent the following text message to the Applicant, which the Applicant did not respond to:

“If I don’t receive contact by 11 am I will accept you are unwilling to extend basic level of respect, or insight into your actions which is ultimately is the question I’ve openly been asking for 12 months now.”

[38] The Applicant’s cousin, Ms Nicole Eckersley (Ms Eckersley), who was assisting the Applicant’s mother during this time, also gave evidence in this matter. Ms Eckersley alleged that Mr Robinson called her on 29 July 2021 in a highly agitated and incoherent state, to tell her that he had cut off the Applicant’s phone and work access. Ms Eckersley further contended that Mr Robinson said he was giving the Applicant “some time off” and insisted he would be paying the Applicant during this time.

[39] It was Ms Eckersley’s evidence that Mr Robinson told her that the Applicant was “out of control” and that he had to cut off the Applicant’s phone “for [his] own good.” Ms Eckersley told the Applicant that Mr Robinson’s manner was “manic” and “florid”. She found it difficult to follow what he was suggesting the Applicant had done and was surprised to learn Mr Robinson had cut off the Applicant’s phone when the Applicant was in a medical crisis involving his mother. The Applicant submitted that Ms Eckersley advised him not to reply to Mr Robinson.

[40] At the hearing and during cross examination, Ms Eckersley gave evidence that by and large she didn’t understand the specific details of what Mr Robinson had told her over the phone as she was not aware of the specific people or situations that he was referring to. However, she recalled that she told Mr Robinson that cutting off the Applicant’s means of communication “wasn’t going to land well” with the Applicant as her belief was that Mr Robinson’s behaviour was inappropriate for a manager.

[41] Ms Eckersley further stated that Mr Robinson understood, or should have understood that the Applicant used his mobile for personal use and that his private phone number was no longer in use. Therefore, according to Ms Eckersley, Mr Robinson’s decision to take the Applicant’s use of his phone away from him looked like an attempt to exert some level of control or leverage over the Applicant’s life.

[42] After receiving no response from the Applicant, Mr Robinson scheduled a meeting between the parties for 1:00pm the following day, 30 July 2021. This was communicated through a text message to the Applicant sent at 12:48pm on 29 July 2021, which stated:

“I’m restricting your phone entirely because it’s ridiculous to pay for something that you refuse to engage with.

I will leave the NBN connection to give you more time to reflect and decide if you can have a rational, calm and respectful conversation where both of us speak and both of us are heard.

I can’t make you participate, but this gives you time to see from my perspective…

I’ve spent a year trying every way imaginable. I’m out of ideas to get you to see how the last year (especially the last 6 months and the onslaught of the circumstances I’ve been thrown into) has left me at the end of my tether.

If you can’t see it from even a human perspective, let alone with our history… I’ll accept it for what it is.

But it can’t and won’t be always on your terms, with my needs being a fleeting afterthought to your whim, and still expect to get the benefits you now consider your rightful entitlement.

Let me know around 10am-ish if you are able to have a civil conversation around 1pm.

I’ll speak to you tomorrow.”

[43] The Respondent submitted that the purpose of the meeting scheduled on 30 July 2021 was to establish the expectations required of the Applicant in order to continue this role, implement a formal Performance Management Plan and to finalise arrangements to allow the Applicant to receive support from the JobAccess program that was previously arranged. However, this meeting did not go ahead.

Events of 30 July 2021

[44] The Applicant did not respond to the text message until 11:10am on 30 July 2021, stating that he was willing to talk if Ms Cassar was mediating. Mr Robinson responded that this was not a negotiation. At the determinative conference Mr Robinson accepted that he did not allow a fellow staff member to be present at the meeting and further explained that “this was for Sam’s sake” as he had been informed that Ms Cassar and Mr Clarke did not want to be involved in the matter. The Applicant wrote back stating “Neither is my request for Maria… Nor is it unreasonable.” Mr Robinson refused, stating in a text message that he “had 12 months to try to do something about this. I’m now taking care of my needs. Maria or any other employee is not an option.” The Applicant submitted that this was fine, and that Mr Robinson could wait until he has a suitable person. Mr Robinson replied stating that the Applicant had “the required 24 hours” and that he was expected to attend at 1:00pm. The Applicant stated that he did not receive a formal email or written communication to understand what he was suspended for. Mr Robinson replied, stating, “Instant Dismissal for gross misconduct is also available… I’m with a participant, I’ll speak to you at 1pm”.

[45] The Applicant did not attend the meeting with Mr Robinson. It was Mr Robinson’s evidence that he then placed the Applicant on leave without pay.

Events of 3 August 2021

[46] Ms Eckersley submitted that a number of text messages were sent between her and Mr Robinson on 3 August 2021. Mr Robinson made the following comments in his text messages to Ms Eckersley:

•  “The situation is he either starts being honest with himself and takes responsibility for the actions I have forensically listed or he’s on his arse and on his own.”

•  “When he started dictating how and when a complaint from his mums provider would be responded to – that was the straw that broke the camels back.”

•  “I would like to think I’m entitled to having just one occasion in a while that is primarily about me… and that’s why I am standing half way and not budging a step.”

•  “Well he’s going to be furious in 9 minutes when I accept the inevitable and his internet is gone. I’m done.”

•  “I explained why I did that on the night [banning outbound call on his mobile phone], and you agreed that it was sensible from removing him from my business. I explained that his behaviour would trigger already sketchy behaviour. You knew it was my intention to unrestricted as soon as I spoke with him the following morning. Instead I got ignored, 2 rants, a rage and all with God complex. No matter how that’s been twisted, you understood exactly what and why I had to. The internet was tonight after mum asked if we were sorted, and mentioned he called her on Friday. So he contacted literally everyone in our team, and my mum… but not me. That was the final straw. I don’t know what he is talking about having his mum part of it.” [sic]

[47] At the determinative conference, during cross-examination, Ms Eckersley referred to the text messages exchanged between herself and Mr Robinson and stated that there should be “no leeway” for emotional outbursts when you hold the position of sales manager.

[48] At 11:05am on 3 August 2021, Mr Robinson sent a text message to the Applicant, which stated as follows:

“I’m actually done with chasing after you Sam. Do you think that this would be accepted in any other employment relationship? Either way I gave you the weekend AFTER you tried and failed to dictate Friday’s meeting and it’s now Tuesday and still no response. The bottom line is I have an alarm set for 2pm to restrict your NBN, so you will be completely without internet – locked down or not. You can try to frame this any way, but you are kidding yourself if you’re still trying to pull the victim card. You’re entitled, rude, demanding, petulant and argumentative. Whether it’s your colleagues, business partners or even customers – it’s Sam’s word and we’re just living in it.

Enough! I’ve absorbed it for a year, and I’ve been telling you for 6 months. Even then, you’re above concepts such as ‘thank you’, ‘sorry’ or ‘accountable’.

This is honestly the final straw. If I don’t speak to you before 2pm today, I’ll expect your resignation and a payment plan for what you owe me by the end of the day.”

[49] The Applicant responded to the text message 20 minutes later, advising:

“I’m not framing this with the victim card. You used your position to threaten and control my actions regarding services for my mum.

I have taken responsibility and been accountable when I have had a negative impact, and I have been thankful for what you have done for me and the opportunities provided.

You never actually provided me reasoning for why you suspended me right after you told me there would be repercussions if I sent a response on Friday to let’s get care before you did.

What you did has makes me sick just thinking about it, my hands are actually shaking like crazy trying to right this text. You would have had my two weeks had you not told me that you wouldn’t accept it till I had a new job, which I’m am already currently starting to do.

I don’t think I can actually talk with you at this current point as it really causing me to cramp and shake. I couldn’t attend Friday for the same reason. I am willing to work under Jason’s supervision to continue to process claims while we transition me out of the company to support cashflow and payroll.”

[50] Mr Robinson replied to the Applicant’s text message on the same day at 12:21pm. The full version of this text message was not provided by the Respondent, only the first paragraph. The text message, as supplied by the Applicant, is as follows:

“You have NEVER apologised for d365, you asked if I was still there (I went silent), followed by “am I in trouble”

Trying desperately to find a reason to have any level of faith in you, I looked on Divi and Xero… it only gets worse. Jason audited it after I de-identified it. There’s $800 of REDE (definite theft from expense account) and almost $8k in ORANGE (needs explanation and mostly receipts)… I Mean, on what planet do you think I would be okay with $130 for a damn label maker?!?!? There’s $2k in Computer Guru who I’ve raised previously to be told they’re JUST QUOTES.. and that’s JUST between June 2020 and February 2021.

You have told multiple people at Oz cashflow can be easily fixed by me pouring in cash. Where do you think that actually comes from?! I am without a cent of savings and it’s not looking like it’ll improve any time soon.

Literally the week after getting $2,600 cash in the bank, you Air Wallexed $4 for a 7eleven coffe[e]… except your coffee is only $2. So who’s coffee did I pay for!?? And how on earth do you keep a straight face saying it was an accident being your default card without there being a virtual card?!

You NEVER apologised for Next Wave and the $5k gaping hole in revenue that left with them… your words were ‘I’m not unhappy that they’re gone’

You NEVER said thank you after Gold Coast (a brief “it’s on the beach, JD and I love it” when you got there was all. You mentioned twice I only paid for 1 massage though.

The day Stuart walked in was the LAST TIME I mattered… when asked if you realised you told me you did but “weren’t actively” doing anything about it

NOT ONCE did you offer to repay Nundah bond. EVER.

Boyland GC Holiday with you and Stuart, I ate shit sandwiches watching Stuart hoover up the stuffs… not a word was said. It was the price of seeing you.

You have made EXACTLY ONE SINGLE repayment on the loan for the house you’re in now. But you’ve told me Karen used to bring it up regularly… JUST ONE. Not even a mention of it from you

You LIED BY OMISSION about Stuart staying at that house, when it was a condition of the bond loan… you have NEVER expressed regret about it either… but you do had no problem taking another loan for a new house.

After that… you thought it was okay to have Karen transport JD in Gretchen… again, ANOTHER LIE by omission.

You allow people who literally want to take the little you have to spare – emotional energy, physical support, financial energy, whatever. If you allocated a slither of the EFFORT to the people who were there in the hard times, these people might feel that it was remembered – maybe even APPRECIATED.

You moved Shelley in after I expressly said NO. Again, you paid bond back fortnightly, I wouldn’t have a leg to stand on. It took me. Goes to get rid of heart and then you have the audacity to tell me I didn’t?!? So why did I say I’d stay at your mum’s if you were doing it yourself?!?!

Don’t even bring up the meeting we had for your mum…

And when I come up to support you. For no reason other than I would want a friend in that situation – you actually started cleaning two days before I left. Around me. The message couldn’t be any clear. I wanted to leave then and there. You didn’t even come to say goodbye at the airport – because I doubted you’d be driving. “Goodbye cunt” was an entirely appropriate for you to say Goodbye – it’s exactly what it felt your opinion was.

And for the first time in something like 5 years, where I put my foot down and say ENOUGH… you are somehow shaky, and angry, and still trying to dictate terms.

LET ME MAKE IT CLEAR…

•  THEFT

•  EMBEZZLEMENT

•  TAKE EVERYTHING OFFERED, AND THEN MORE THAT I DIDN’T FIND [OUT] ABOUT UNTIL JANUARY

•  BREACH OF DIRECTORS DUTY

•  PUTTING ME IN $60K DEBT

•  ARGUING WITH NEXT WAVE COSTING $5K PER MONTH REVENUE

•  THE CONSTANT SENSE OF ENTITLEMENT

•  NEVER… NOT ONCE APOLOGISING

•  [UNGRATEFUL]

•  SECRETS, OMISSIONS AND OTHER INTENTIONALLY DISHONEST AVOIDANCE BEHAVIOUR BUT WHAT’S WORSE IS THE:

•  LIES, LIES, LIES

•  HYPOCRISY

•  DENIAL

And you know you’re wrong… when you called Maria the second we got off the phone, you acknowledged you had to apologise. You asked her to “de-escalate”. It was all bullshit. Then you called Jason and gave him a slightly different version. They rang each other before they rang me. You’re memory isn’t good enough to have multiple versions of events at the same time. You busted yourself.”

[51] Mr Robinson then sent an image of a quote, which stated, “What you do speaks so loudly that I cannot hear what you say” by Ralph Waldo Emerson. Mr Robinson then sent a following text message, stating, “You pushed for far too long. You’ve got till five, and that’s only because it I have a meeting at 2pm”. The Applicant responded stating he had apologised for Dynamics and explained the go with DIVI. The Applicant advised he was not aware what the Xero comment was in reference to and stated that Mr Robinson had also crossed the lines that are “possibly unreconcilable”. Mr Robinson replied, as follows:

“Yeah I took the phone that I pay for it because you wouldn’t speak to me with a full ounce of respect when I just wanted to read a piece of paper that you refuse to send[.]

This is totally an entirely all your reaction. I had no intentions of your restrictions going past the following morning after I put them on. The only reason I put them on Waze that you couldn’t keep calling staff and trying to stir up shit and get everybody talking about something slightly different to the other. They stayed on because your attitude was so poor that you started off by yelling at me pissing in the morning.

I gave you multiple opportunities to correct your tone choice of words and behaviour and you didn’t take any of them it is not your God given right to use that phone it is a work phone it is never been discussed for a personal phone and I would never agree to you having exclusive used to it over and above being disrespectful to me[.]

I provided a solution for you to speak to your mum in private and you chose not to take it that’s you not me[.]

And as for your Sorries on your thank you’s… BULLSHIT and you know it’s bullshit[.]

And calling my mum on Friday night for no reason other than to see if you can start to dob on me?

You’re a pathetic little weasel of a man if you can’t finally except after 12 months that you’ve pushed too far. It doesn’t make you a bad person to expect that Sam it makes you a bad person not to ring once it cannot be denied any more[.]

And it’s convenient for you to answer what you Think you can get away with lying about[.]

Done. So far it’s bond and rent to me, almost $800 to Oz… and $8k you still have to justify. Not manning up has never been so expensive[.]”

[52] The Applicant advised that Mr Robinson then sent two photos demonstrating boxes and jumpers hanging on a table. The Applicant responded back to Mr Robinson, via text message. The text message was sent at 6:22pm on 3 August 2021, which stated as follows:

“I didn’t ring you as your actions spoke enough to know that there would be nothing far about it and anything short of ramming me into the ground would be accepted.

As for calling people I have been pretty constant in my statement that it is NOT OK that you used your position to dictate what I did in regards to mum’s services. As to my “attitude” was in pure shock that you actually went that far and hoping that it could be deescalated.

And the apologies are most definitely not BULLSHIT.

This was definitely not started by me “refusing to send you a piece of paper” this stared when I was staring I would be sending a response to the issues raised to ME on Friday. You have had access to all the documents and staff involved in the investigation and report, it would be inappropriate for me to send you documents relating to the investigation specifically when they are not readily available for accessible to me as a family member.

I didn’t contact Bev to “dob” on you as she had responded to one of you clearly to do with me FB posts. I was assessing if she was still wanting me to do shit for Lisa’s 365 as she clearly hadn’t spoken to you I left it at that and spoke about how mum is going.

Though it’s ironic getting up me when Nicole isn’t quite sure what you where going on about during your call with her on Thursday morning.

With regards to bond I’m happy to agree to a payment plan that works, not immediately aware of the rent context. As for the 900 + 8k this is the first that I have been made aware of so I am.

Please just disconnect the Internet. Jason can let me know what arrangements will be with returning company equipment and I will need my laptop resent and returned ASAP. You will have my resignation soon, as I have some interviews lined up [for] tomorrow if you want it sooner or prefer to fire me.”

[53] There were no further text messages sent on this day, or any responses from Mr Robinson. The Applicant stated that on 5 August 2021, Mr Robinson allegedly logged into, and deleted, the Applicant’s personal LinkedIn account. The Applicant sent a text message to Mr Robinson at 4:35pm on the same day, stating, “That is MY LINKEDIN account I started long before I even met you and I want it back”. There was no text message from Mr Robinson in response. However, the Applicant stated that Mr Robinson acknowledged that he deleted the Applicant and Ms Eckersley’s LinkedIn account.

[54] On 12 August 2021, Mr Clarke sent an email to the Applicant in following terms:

“Hi Sam,

As we discussed, I have sought approval from Fabian for you to login to Xero for the purposes of changing your ‘subscriber’ status to me. Fabian has also asked that you also log in to Microsoft Office, godaddy and any other systems owned by OzNDIS PTY LTD and provide full access, and remove all restrictions that exist throughout. You will also need to remove the Multi Factor Authentication for your own login so that sensitive client information can be appropriately safeguarded.”

[55] On 13 August 2021, the Applicant submitted that his Facebook account, which was connected to his work email, was also deleted. Mr Robinson maintained that he had no involvement in this. The Applicant advised that he does not know whether Mr Robinson had deleted his account, or whether it was a coincidence.

[56] On 13 August 2021, the Applicant advised Mr Jason Clarke via email that he was unable to login to the computer to access his Xero login. At the determinative conference the Applicant further explained that because he was locked out of the Office 365 environment, he was unable to access the spreadsheet that contained his Xero password. The Applicant’s evidence is that because of his restricted access, he was unable to action Mr Clarke’s requests. The Applicant sent the following email:

“Hi Jason,

To clarify on our conversation; I am currently sorting the Xero subscription and will be finished within the hour additionally I am happy to complete any task related to handover and exiting of my position with the appropriate hourly rumination (you/Maria and I can negotiate tasks and time frames), as previously stated I was unable to work due to personal care reasons for the period of 30/07/2021-04/08/2021 to be reflected in my pay, the prompt return of my personal laptop on loan to OzNDIS for use by Mara Cassar and that I will not have contact or communication from or with Fabian Robinson. I will also need my access reinstated for the MS Office 365 with global admin access to complete the requested tasks.

Many thanks,
Sam.”

[Emphasis added]

[57] When discussing this email at the determinative conference, the Applicant explained that at that point in time he was under the assumption that he had been suspended. He had not been provided with clear communication regarding moving forward.

[58] The Applicant further submitted that Mr Robinson, on several occasions, contacted Ms Eckersley, allegedly attempting to justify his “coercive, controlling and inappropriate actions”. When Ms Eckersley did not accept this justification, Mr Robinson sent text messages to Ms Eckersley allegedly threatening the Applicant and accusing the Applicant of corporate sabotage.

[59] It was Ms Eckersley’s evidence that Mr Robinson sent her text messages on 13 August 2021. In this text message exchange, Mr Robinson stated that he “still hasn’t received a resignation, or anything for him to exit”, he has “only received self-serving demands and rage”. Mr Robinson further stated that “I do need to finalise employment. I had planned to start the process today, but I got a flurry of calls within 10 minutes of each other each different from the other but all feeling obliged to hold off if I had plans to do anything for both our sakes.”

[60] On 19 August 2021, Mr Robinson advised Ms Eckersley via text message that “tomorrow I will begin taking action to prevent the damage that nobody else seems able or willing to deal with.”

[61] The Applicant submitted that he received an email from Mr Robinson on 25 August 2021, which he describes as threatening in nature. The email is set out as follows:

“From: Fabian Robinson…
Sent: Wednesday, August 25, 2021 1:02:30 PM
To: Sam Rosenbaum …
Subject: ‘The wheels of justice turn slowly but exceedingly fine’

As amusing as it is that I’m free rent I’m living rent free in your head (and the bonus of not having to juggle an unbalanced parasite with a god complex)… it’s only fair that I give you a heads up.

Your total disregard for anyone else’s thought process would’ve left you thinking I went to the Q&S… but I said proportionate and severe, and so it is. The Australian Federal Police investigate the misappropriation of company funds, Tax offences and especially the data theft.

Outside of your immediate world it’s still mostly untested, and with all the evidence in the logs alone they were all over it. They got their contacts at Microsoft and will subpoena every single file they need.

I didn’t expect they have a taskforce with the ATO, ASIC, Crime Commission and others to combine resources in investigations which is cheaper and more effective.

You’ll be like a trophy. Finally you will be an icon, indisputably infamous and a case study for law students.

I hinted at what your doing being more serious than you thought, but of course you would know best. As always.

At this point, the combination of all the different things you have done (extortion) and the insane amounts you have done it – you might as well go for broke.

The downtrodden and defeated look on your face as you are cuffed and dragged off to jail for who knows how long in a bad fitting second hand suit some charity will loan you will be quite a scene.

With any luck, your cell mate will be a 150kg hairy dude that makes you hold his hand in the yard… but eventually your god complex will eventually overcome you and it won’t be sorted out talking about it.

I have looked up the closest prison to you, and it’s Arthur Gorrie near Ipswich. The pic below is what to expect on your first day.

I’ll see you when I’m on the stand giving evidence against you.”

[62] The Applicant contends that he has not been paid since 29 July 2021.

Proceedings in the Commission

[63] The Applicant filed an application for unfair dismissal remedy on 15 September 2021, 21 days after the email of 25 August 2021. A copy of the application was sent to Mr Robinson, as the contact person of the Respondent, on 21 September 2021. A Notice of Listing was sent to the parties on 28 September 2021 and the matter was listed for hearing before the Commission on 23 November 2021.

[64] On 1 October 2021, the Applicant stated that Mr Robinson sent the Applicant an image of an unidentified SharePoint Communication Site that he had opened for editing at some point. The Applicant explained that part of his role included the management and administration of the company IT system, and all administration activities is trackable with version control being active. In addition to this image, Mr Robinson wrote, “Honestly, at this point, you’re like shooting fish in a barrel. It’s just not the same when I don’t have to work for it”.

[65] The Respondent submitted that the Applicant was not dismissed, nor was any notification of termination provided to the Applicant. The Applicant received one day of paid leave, which was not deducted from his leave balance, for feeling overwhelmed and facing difficult personal circumstances. Since then, the Respondent argues that the Applicant chose not to communicate, clarify or discuss his intentions in respect to his ongoing employment. Due to this, and in the absence of any leave requests, the Respondent advised that the Applicant was placed on unpaid carer’s leave from 30 July 2021. The Respondent further contends that the Applicant has not attended work or engaged in any dialog with management since.

[66] The Respondent submitted that at the time they filed their response to the current application, there had been no meaningful contact between the parties to discuss the Applicant’s employment with the Respondent. Once the situation started to escalate, the Respondent sought advice from the Fair Work Ombudsman Employer Advisory Service and was then referred to the Small Business Fair Dismissal Code.

[67] The Respondent argued that since the Applicant has been on “unpaid leave” from 30 July 2021, serious information has come to light which caused the Respondent to launch an investigation into activities suspected by the Applicant. The Respondent has alleged that they have identified a number of discrepancies within their Xero accounting system, unapproved wages being paid to the Applicant, personal charges on the Respondent’s credit card by the Applicant and an increase in the Applicant’s superannuation without the Respondent’s approval. Further, the Respondent submitted that it removed the Applicant’s access from various company systems until these matters could be properly investigated. The Respondent stated that this investigation is ongoing and will be referred to the relevant authorities.

[68] At the determinative conference, Mr Robinson further submitted that the issues regarding the Applicant’s use of his corporate credit card became apparent at the beginning of 2021, referring to a $25,000 software purchase that ended up being a $80,000 commitment. Mr Robinson explained that the allegations had not been presented to the Applicant as the Applicant was dealing with his mother’s failing health.

[69] Regarding the allegations in relation to superannuation, the Applicant submitted at the hearing that the superannuation entitlements were increased from 9.5% to 15% unilaterally to all employees in approximately January 2020, with the authority of Mr Robinson. The Applicant stated that during this time, written communication between himself and Mr Robinson was poor, however he recalled a conversation with Mr Robinson where Mr Robinson authorised the changes to superannuation. Mr Robinson accepted that a conversation took place, however he denied that he approved the increase to superannuation.

[70] The Applicant further stated that following the decision to increase superannuation he had a discussion with Mr Robinson and there was no indication from Mr Robinson to scale it back.

[71] It was the Respondent’s evidence that they engaged an external HR Consultant to try and facilitate an outcome between the Applicant and the Respondent, however the current proceedings before the Commission commenced before this could take place.

[72] Despite maintaining that the Applicant had not been dismissed from his employment, the Respondent alleged in the alternative that the Small Business Fair Dismissal Code was followed as required and was used as a guide to understand how the Respondent was to move forward with the Applicant’s employment.

[73] The Respondent filed a Small Business Fair Dismissal Checklist in support of its jurisdictional objection and the checklist was dated 12 August 2021. The Applicant contended that the Small Business Fair Dismissal Code Checklist has made a number of claims that have not been substantiated in supporting documentation.

[74] In this checklist the Respondent stated that it “believed on reasonable grounds that the employee was stealing money or goods from the business [and] the employee defrauded the business.” The checklist ticked “yes” under question 5 where it asked, “Did you dismiss the employee for some other form of serious misconduct” and provided the following reasons:

•  Restricting access to Xero accounting to OzNDIS Accountants;

•  Failing to comply with (numerous) directives to remove access limitations in M365 environment owned by OzNDIS;

•  Failing to comply with directive to transfer access to website and other OzNDIS systems.

[75] At the determinative conference Mr Robinson further discussed his concerns that the Applicant had been awarding himself incremental pay rises without authority. The Applicant denied this allegation, stating that he and Mr Clarke conducted an audit of employee conditions against relevant Awards and any changes to pay were made in accordance with changes to relevant Awards.

[76] The Applicant argued that his access to the Respondent’s IT Systems were blocked on 28 July 2021 which removed his ability to access/change system settings, files and/or data in these systems including passwords for Xero and other OzNDIS systems.

[77] The Respondent’s Small Business Fair Dismissal Code Checklist also stated that the Respondent dismissed the Applicant because of his unsatisfactory conduct, performance or capacity to do the job, and contended that it clearly warned the Applicant that he was not doing the job properly and would have to improve his conduct or performance or would otherwise be dismissed. The Respondent further claimed in the checklist that it provided the Applicant with a reasonable amount of time to improve his performance or conduct, offered to provide the Applicant with training or opportunities to develop his skills and that the Respondent kept records of warnings made to the Applicant. The Respondent also stated that the Applicant did not subsequently improve his performance or conduct, and that the Respondent did not tell the Applicant the reason for the dismissal, before he was dismissed, and give him an opportunity to respond, further stating that the Applicant refused to engage with the Respondent.

[78] The Applicant submitted that his requests for further information/clarification and time to seek an appropriate support person for the requested meetings had been rejected by the Respondent. The Applicant also argued that there was no performance review, or otherwise, in accordance with the Respondent’s Policy and Procedures.

[79] The Applicant stated the following in his written submissions:

“The OzNDIS Human Resources Policy and Procedure provides the requirements for staff performance reviews stating one weeks' notice of the time and date of the review to be provided, and the staff must complete a “Staff Training Self-Assessment” to be submitted at the review. At the conclusion the Managing Direct[or] will complete a “Staff Performance Review Feedback Form”, where strategies for performance Improvement are required due to a significant issue, a “Staff Performance Improvement Plan” must be completed. Both documents must be completed and signed by the staff member and the Managing Director.

The policy states in relation to performance management “In all processes the principles of natural justice must be followed. This means the staff member must have an opportunity to state their point of view before action is taken and that the decision maker must not be biased. If a staff member engages in cereal items conduct size unreasonable and reasonable for OzNDIS to continue their employment, they may be dismissed instantly. Those are such misconduct included theft, assault and fraud. Such actions must be supported by a high level of evidence” it goes on to state that “the managing director will maintain formal records [misconduct or non-performance reports] of each counselling/disciplinary session and keep them confidential. All records must be sighted and signed by the relevant staff member as true and correct. Such records will provide important evidence if the matter proceeds to the Fair Work Commission.”

[80] The Applicant further contended that the actions taken by the Respondent to remove his access to the IT Systems, as well as engaging in inappropriate behaviour and communications, provided a clear indication that the Respondent was acting in a hostile manor and any engagement without a support person would not be appropriate.

[81] The Respondent stated at question 9 of the Small Business Fair Dismissal Code Checklist that the Applicant was dismissed for other reasons, those reasons being:

•  Poor attitude and inappropriate communication with staff, business partners and suppliers;

•  Refusal to comply with directive to restore access to OzNDIS owned systems, files and website;

•  Sustained and significant financial transaction lasting for over twelve months.

[82] It was the Respondent’s evidence that there had been a breach of trust between the Respondent and the Applicant, therefore continued employment would not be an option they would be willing to explore.

CONSIDERATION

[83] The Respondent has raised a jurisdictional objection that the Applicant was not dismissed. Accordingly, I must first determine whether the Applicant was indeed dismissed.

The approach to considering whether an employee has been dismissed

[84] When considering whether an employee has been dismissed, the general approach is set out in the Decision of a Full Bench of a former Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd: 1

“[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 and 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.’”

[85] The Full Bench in O’Meara cited an earlier decision of a Full Bench in ABB Engineering Construction Pty Ltd v Doumit: 2

“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.”

[86] The Full Bench in O’Meara went on to observe:

“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)

[87] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosam v Tavassoli, 3 the Full Bench of the Commission noted:

“[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)

[88] Commission Hampton in Sathananthan v BT Financial Group Pty Limited 4 distilled the general legal principles into the following, having considered the above cases:

•  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; 5

•  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.

[89] The evidence presented by the parties demonstrated that the reason for why the Applicant was stood down was not communicated to him. When the Applicant requested reasons to being stood down, Mr Robinson responded that “Instant Dismissal for gross misconduct is also available” in relation to the Applicant refusing to meet when requested. It was not until 3 August 2021 where Mr Robinson provided commentary in respect to his distrust towards the Applicant, albeit said in perhaps a heated manner. This included, amongst others:

•  After Mr Clarke audited Divi and Zero, it was discovered that there was $800 of REDE theft from the Applicant’s expense account and almost $8,000 in Orange which requires explanation.

•  The Applicant had told multiple employees of the Respondent that cashflow can be easily fixed by Mr Robinson pouring cash.

•  The Applicant Air Wallexed $4 at 7eleven for a coffee. A coffee would ordinarily cost $2.

•  Theft

•  Embezzlement

•  Breach of director’s duty

•  Secrets, omissions and other intentional dishonest avoidance behaviour

[90] The evidence demonstrated that the specificity of the allegations was never put to the Applicant for formal response. It is noted that the Applicant did respond to the above text message shortly after and that the Respondent did request on several occasions to meet to discuss the future of the Applicant’s employment. However, the Applicant never attended any meeting and refused to call Mr Robinson.

[91] It is further noted that prior to the text message on 3 August 2021 where Mr Robinson provided commentary in relation to his distrust to the Applicant, he wrote to the Applicant stating that, “If I don’t speak to you before 2pm today, I’ll expect your resignation and a payment plan for what you owe me by the end of the day”.

[92] However subsequent communications on 3 August indicate that neither party had moved to end the employment relationship by that stage. The evidence discloses that after this date the Respondent had sought advice and completed the Small Business Fair Dismissal Code on 12 August however did not communicate a termination of employment on that date.

[93] On 19 August 2021, Mr Robinson advised Ms Eckersley via text message that “tomorrow I will begin taking action to prevent the damage that nobody else seems able or willing to deal with.” Considering the evidence in totality, I am satisfied that while the employment relation was under severe strain from 28 July 2021, it remained on foot until 25 August. However, the tone of the email sent by Mr Robinson to the Applicant on 25 August 2021 was sufficient to make clear the employment relationship was at an end at the initiative of the Respondent. As I have found the termination occurred on 25 August 2021, the application was filed within time and it is unnecessary to consider whether an extension of time is necessary, however for completeness, if an extension of time were required the facts of this case would have favoured an extension in any event.

Whether Respondent complied with Small Business Fair Dismissal Code

[94] Mr Robinson submitted at the determinative conference that whilst the primary argument of the Respondent is there has been no dismissal, if it is found there was a dismissal, that for the purposes of the Code it is asserted that the dismissal was a summary dismissal. On that basis the relevant part of the Code is that pertaining to Summary Dismissal which reads as follows:

“Summary Dismissal

It is fair for an employer to dismiss an employee without notice or warning when the employer believes on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Serious misconduct includes theft, fraud, violence and serious breaches of occupational health and safety procedures. For a dismissal to be deemed fair it is sufficient, though not essential, that an allegation of theft, fraud or violence be reported to the police. Of course, the employer must have reasonable grounds for making the report.”

[95] I have considered all of the evidence and am not satisfied that there existed reasonable grounds at the time of termination for Mr Robinson to hold the belief that the Respondent was justified in immediately dismissing the Applicant at that time.

[96] The evidence regarding the dispute concerning the Applicant’s mother and arrangements between the Respondent and LGC did not justify a belief that his conduct was sufficiently serious to justify immediate dismissal as the communications the Applicant was wanting to have with LGC were in the context of the care of his mother. Mr Robinson’s evidence was to the effect that he merely wanted the Respondent to have the opportunity to respond to LGC first. The Applicant provided the Respondent with a timeframe within which he was prepared to not respond until 30 July 2021, which was the end of the week, allowing the Respondent to communicate with LGC before that date. It was not disputed that Mr Robinson restricted the Applicant’s access to his phone, and subsequently also the Office 365 computer program.

[97] On the basis of the evidence in regard to the claims of Mr Robinson that the Applicant had been paying himself additional superannuation amounts, taking annual leave without deducting that leave and paying himself additional wages increases, the evidence tends to indicate that the Applicant had not done anything out of step with discussions that had occurred at an earlier point in relation to these matters, were matters known to others within the Respondent and appeared to have been implemented not just for the Applicant but for others. In the case of the allegation concerning annual leave, there was little in the way of specific evidence to make out a basis for the allegation. On that basis I am not satisfied that the Applicant’s conduct justified a reasonable basis for a belief that his conduct was sufficiently serious to justify immediate dismissal in relation to these matters.

[98] I am also not satisfied that the Applicant’s reluctance to attend a meeting where he would not have a support person, and also did not have clarity over the purpose of the meeting amounted to conduct that would justify a reasonable belief that his conduct was sufficiently serious to justify immediate dismissal for not attending in the circumstances.

[99] Mr Robinson relied on an email sent to him from Mr Clarke on 13 August 2021 to support his view that the Applicant was deliberately restricting access to systems such as Microsoft Office. Mr Clarke did not give evidence. The Applicant gave evidence that from about 29 July 2021, he was unable to access the systems himself because of the actions of Mr Robinson. The Applicant did send an email to Mr Clarke on 12 August 2021 to the effect that he would cooperate with Mr Clarke’s requests if he was paid. It is notable the Applicant had not been paid by the Respondent for some time by 12 August 2021. The Applicant made a request for his access to be restored to complete the requested tasks. Considering the evidence overall, I am not satisfied that the facts supported a basis for a reasonable belief on the part of Mr Robinson that the Applicant had made changes to the Respondents Information Technology systems blocking access for others.

[100] The evidence provided by Mr Robinson concerning the allegation that the Applicant’s interpersonal communications with other staff or an alleged loss of a contract because of his conduct was insufficient to be satisfied it would justify a reasonable belief that his conduct in relation to either of these issues was sufficiently serious to justify immediate dismissal for not attending in the circumstances.

[101] Further matters were raised by Mr Robinson in relation to some financial transactions he became aware of in the Respondents accounting system, but he did not provide sufficient evidence concerning these issues such that I could be satisfied that they would justify a reasonable belief that the Applicants had engaged in any alleged misconduct.

[102] I asked Mr Robinson how he reconciled his assertion that there has been no dismissal, and the requirement in the Code that the employer had dismissed the Applicant on the basis that the employer believed on reasonable grounds that the employee’s conduct is sufficiently serious to justify immediate dismissal. Mr Robinson maintained his assertion that he took no steps to communicate a dismissal to the Applicant. I asked Mr Robinson if there had been a termination, when it occurred. He maintained that it was after 12 August 2021.

[103] The issues in relation to costs incurred in connection with a software purchase appeared to have been discussed at a much earlier stage and could not form a basis for a belief that there were reasonable grounds for termination as at the relevant time.

[104] Given these findings the dismissal was not consistent with the Code, and it is necessary to consider whether the dismissal was harsh, unjust or unreasonable.

Whether the dismissal was harsh, unjust or unreasonable

[105] Section 387 of the Act provides that, in considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission 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.”

[106] I am required to consider each of these criteria, to the extent they are relevant to the factual circumstances before me. 6 I set out my consideration of each below.

s.387(a) Whether there was a valid reason for the dismissal related to the person’s capacity or conduct

[107] The reasons the Respondent relies upon to argue it had a valid reason for dismissal all fall within the matters already addressed above when consideration was given to whether the dismissal was consistent with the Code. For the same reasons as set out above, I am not satisfied that any of those issues, or all of them taken together provided the Respondent with a valid reason for termination.

s.387(b) Whether the person was notified of the reason

[108] For the reasons set out above it is clear the Applicant was not notified of the reasons for his dismissal.

s.387(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

[109] The Applicant was not given a proper opportunity to respond to the reasons related to his dismissal.

s.387(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

[110] No proper discussions occurred in relation to the dismissal and on that basis section 387(d) is a neutral consideration.

s.387(e) If the dismissal related to unsatisfactory performance by the person – whether the person had been warned about that unsatisfactory performance before the dismissal

[111] To the extent that the dismissal was related to unsatisfactory conduct, the Applicant was not warned about it.

s.387(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

[112] The Respondent is a small business having employed only 6 employees at the time of the Applicant’s dismissal. This is likely to have impacted on the procedures followed.

s.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

[113] The Respondent did not have a dedicated human resource management specialist, and this is likely to have impacted on the procedures followed.

s.387(h) Any other matters that the FWC considers relevant

[114] The Applicant was not paid in accordance with his contract of employment for several weeks prior to the termination of his employment and was also blocked from using his phone and accessing IT systems.

CONCLUSION ON HARSH, UNJUST OR UNREASONABLE

[115] Having given consideration to each of the matters in s.387, I am satisfied that the dismissal was harsh, unjust or unreasonable. I have concluded the Respondent did not have a valid reason for dismissal and also failed to afford procedural fairness for the reasons set out above.

REMEDY

[116] The Applicant did not seek reinstatement and instead sought compensation. I am satisfied that reinstatement would be inappropriate in this case. Accordingly, I must determine whether an order for compensation is appropriate.

Section 392(2)(c) - remuneration that the Applicant would have received, or would have

been likely to receive

[117] The Applicant initially sought a remedy of a month’s wages. The evidence disclosed that the Applicant flagged in the course of an email to the Respondent on 3 August that he was contemplating resignation.

[118] At the hearing, both the Applicant and Mr Robinson referred to a conversation that occurred during a recent trip to Victoria, which according to the Applicant was undertaken to assess the ongoing viability of the employment relationship. Mr Robinson explained that that the trip to Melbourne was a “last ditch effort” to discuss matters with the Applicant. Mr Robinson and the Applicant agreed that during the trip the Applicant said words to the effect that if discussions between the parties were not successful, then the Applicant would be leaving the company. Mr Robinson’s evidence is that he did not disagree with the Applicant’s proposition.

[119] The Applicant submitted at the determinative conference that had he not been dismissed, he would not have stayed at the Respondent until the end of the year.

[120] Mr Robinson spoke to a range of issues that had been arising between himself and the Applicant since July 2020. Mr Robinson maintained that the relationship was not likely to have lasted much longer.

[121] Having considered all of the evidence, I am satisfied that employment the relationship would not have lasted more than another three weeks. Whilst there was some disputation about the matter, I have concluded that the hourly rate of pay at the time of termination was $35.42 per hour on a full time basis at the time of termination equating to $1,346.15 per week and resulting in an amount of $4,038.45 for three weeks.

Section 392(2)(d) – Applicant’s efforts to mitigate the loss suffered because of the dismissal

[122] The Applicant gave oral evidence that he was able to obtain other full-time, permanent employment commencing on 9 November 2021.

[123] The Applicant stated that within 1.5 weeks of his dismissal he had made several job applications online and had also sought out employment opportunities through his personal networks, which was ultimately how he obtained his new employment. I am satisfied the Applicant attempted to mitigate his loss and there is no basis to make a deduction to the amount of compensation on that basis.

Section 392(2)(e) - any remuneration during period between the dismissal and the making

of the order for compensation and section 392(2)(f) - income reasonably likely to be so

earned during the period between the making of the order for compensation and the actual

compensation

[124] The Applicant confirmed that he did not receive any other income between his dismissal and obtaining other employment.

[125] The Applicant submitted that he has worked in his new role since 9 November 2021 in a full-time capacity. He said that is rate of pay in his new position is $35.89 per hour.

[126] The period of time that I have assessed that the Applicant would have remained employed would have expired prior to the date on which the Applicant first obtained other income and therefore there is no basis to make a deduction to the compensation amount on the basis of other income earned.

Section 392(2)(a) - effect of the order on the viability of the Respondent’s enterprise

[127] Mr Robinson confirmed the business was still trading however the business now only had two part time employees, a consultant and himself. I am not satisfied that any further deduction should be made on the basis of subsection 392(2)(a).

Section 392(2)(b) - length of the Applicant’s service with the Respondent

[128] The duration of the Applicant’s employment was a period of just under two years. I do not propose to amend the compensation figure on account of this issue.

Section 392(2)(g) - any other matter that the FWC considers relevant

[129] There are no other matters I consider relevant to determining compensation

CONCLUSION ON REMEDY

[130] Having considered the matters in s.392 of the Act, I have determined that OzNDIS Pty Ltd must pay Mr Samuel Rosenbaum an amount of $4,038.45 gross taxed according to law within 21 days of the date of this decision. An order to this effect will be issued separately and concurrently with this decision.

COMMISSIONER

Appearances:

Mr S. Rosenbaum appearing on his own behalf.
Mr F. Robinson appearing for the Respondent.

Hearing details:

2021,
Brisbane:
November 23

Printed by authority of the Commonwealth Government Printer

<PR737448>

 1   [2006] AIRC 496 (PR973462).

 2   Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 3   [2017] FWCFB 3491.

 4   [2019] FWC 5583.

 5   Fair Work Act 2009 (Cth) s 12.

 6   Sayer v Melsteel Pty Ltd [2011] FWAFB 7498, [14]; Smith v Moore Paragon Australia Ltd PR915674 (AIRCFB, Ross VP, Lacy SDP, Simmonds C, 21 March 2002), [69].