DECISION

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

Mr Stuart Engelbrecht
v
BMI Group Pty Ltd T/A BCC Crushing
(U2017/1209)

Application for an unfair dismissal remedy – whether dismissal at the initiative of the employer

[1] Mr Engelbrecht has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal from BMI Group Pty Ltd T/A BCC Crushing (BMI) was harsh, unjust or unreasonable.

[2] Mr Engelbrecht commenced employment with BMI on 9 December 2013 as an Operator. His duties included crushing deposited refuse. His employment ended on 16 January 2017, and it is the subject of contention as to how the employment came to end.

[3] BMI raised a jurisdictional objection that Mr Engelbrecht had not been dismissed, and it contended he voluntarily resigned his employment on 16 January 2017.

[4] The matter was listed for jurisdiction hearing in Brisbane on 19 June 2017. At the hearing both parties were granted permission to be represented pursuant to s.596 of the Act. Mr Engelbrecht was represented by Mr Miles Heffernan of Fair Work Claims. BMI was represented by Mr Ben Cooper of Livingstones.

Overview of Mr Engelbrecht’s evidence

[5] Prior to the Christmas break in December 2016, Mr Engelbrecht was informed there would be a shutdown in the workplace, with work resuming on Monday, 9 January 2017. Mr Engelbrecht was then requested by Mr Daniel Faux, Crushing Manager to return on Tuesday, 3 January 2017 where there would be a skeleton staff operating. He agreed to do so.

[6] It is Mr Engelbrecht’s evidence that he slept in on the morning of 3 January 2017, and when he awoke, he was reminded by his partner, Ms Julie Byrd that he had to attend a doctor’s appointment that morning. Mr Engelbrecht did not contact Mr Faux to communicate his non-attendance at work.

[7] At approximately 10:28am, Mr Faux attempted to call Mr Engelbrecht, however was unsuccessful. Mr Faux sent a text message to Ms Byrd stating, “Sorry to bother you but do you know when Stuart will be back at work. It’s Dan here”. 1 Ms Byrd replied by text message, “Hi Dan, apologies I was suppose [sic] to message you this morning. He had an appointment booked for his treatment/medication. He did want to go today until I reminded of his appointment as it is necessary for him to keep up his medication/treatment. Thanks Julie”.2

[8] A telephone conversation later took place between Mr Faux and Ms Byrd. It is Ms Byrd’s contention that Mr Faux had said to her that it was “no drama” and he had been unsure whether Mr Engelbrecht was returning to work on the 3rd or 9th of January. Ms Byrd understood this to mean that Mr Faux was not concerned, and was expecting Mr Engelbrecht to return to work on 9 January 2017.

[9] On 4 January 2017 Mr Faux sent a text message to Ms Byrd stating, “Is he running late or not in?”. 3 Ms Byrd responded “I let jniq [sic] yesterday after you rung me and explained it wasn’t a drama are [sic] all if he wasn’t back until the 9^th. He’ll see you on the 9^th January”. Mr Faux then replied “Can you ask him to ring me please”.

[10] A telephone conversation took place between Mr Engelbrecht and Mr Faux on 4 January 2017. Mr Engelbrecht told Mr Faux that he had understood the telephone discussion between Mr Faux and Ms Byrd to have resulted in him not being required for work until 9 January 2017

[11] Mr Faux said to Mr Engelbrecht that this was incorrect, and that he had informed Ms Byrd that there was, “no drama” as he was not sure whether Mr Engelbrecht was returning to work on the 3 or 9 of January 2017. If he had not attended on 3 January 2017, Mr Faux expected him to attend on 4 January 2017.

[12] It is Mr Engelbrecht’s evidence that he then asked Mr Faux if he considered Ms Byrd was lying. Mr Faux stated that he had told Ms Byrd that it was not a drama that Mr Engelbrecht not attend on 3 January 2017 to attend a doctor’s appointment. He had not said it was “no drama” relevant to Mr Engelbrecht next attending work on 9 January 2017.

[13] Clearly there had been some miscommunication between Mr Faux and Ms Byrd.

[14] Mr Engelbrecht returned to work on 5 January 2017. Mr Faux’s evidence is that during a discussion he had with Mr Engelbrecht, he said words to the effect that his failure to attend work was “a mess up from his missus and a miscommunication and not his fault”. 4

[15] Mr Engelbrecht’s evidence is that on 13 January 2017 he had a meeting with Mr Richard Noble, Leading Hand, together with Mr Faux. He was issued a written warning that had been prepared prior to the meeting 5. The written warning purports to be a second written warning. It states:

‘Stuart did not ring to inform Richard or Dan that he would not be at work Tuesday or Wednesday (3-4/1/17) and efforts had to be made to contact him via his partner. This was after a 1^st Warning and repeated verbal warnings.’

[16] During the meeting Mr Engelbrecht denied that he had received a previous written warning. He signed the written warning dated 13 January 2017 as he was under the impression that it was required or expected of him. Mr Engelbrecht said to Mr Faux, “You’re setting me up and why have you decided this after 2 weeks”. 6 Mr Faux responded that he had needed time to think about it.

[17] Mr Engelbrecht’s evidence is that requested to view the purported first written warning as he knew there wasn’t a first written warning. He considered that Mr Faux was ‘making it up’. Mr Faux answered that if Mr Engelbrecht wanted to see the first written warning, he’d have to make that request in writing. 7

[18] Mr Engelbrecht spoke with another leading hand, Dwayne, and said to him that he knew there wasn’t a first written warning on his file because if there had been, it would have been Dwayne who would have issued it. Dwayne is purported to have agreed with Mr Engelbrecht that he had not been issued with a first written warning.

[19] At the hearing Mr Faux was asked by Mr Engelbrecht’s representative why he did not supply Mr Engelbrecht with the purported first written warning, to which he responded:

‘He didn't ask for it and he didn't - he wasn't - when he received the written warning, he wasn't like he was in a great deal of disagreeance [sic] with it. It wasn't even like a heated discussion or anything, it was, you know, like "Hell, mate, you've got to to get this, you've done it - there's too many times and I'm tired of contacting your wife to find out your whereabouts" - or "your partner" - "So, you know, it makes me uncomfortable, I'm tired of being uncomfortable about it, we've spoken about this before, here's the written warning." He's fine with it.’ 8

[20] As became clear during the hearing, a first written warning dated 25 January 2016 was not issued to Mr Engelbrecht. It had been prepared, but not issued, and a copy of it was retained on Mr Engelbrecht’s file. Mr Faux was not in BMI’s employment during January 2016, and when he went to prepare a second written warning for Mr Engelbrecht, he came across the first written warning and assumed it had been issued to Mr Engelbrecht.

[21] Mr Engelbrecht submitted that the second written warning was disproportionate to the conduct that was alleged given that Mr Faux was aware that there had been an error in communication regarding a return to work date.

[22] It is Mr Engelbrecht’s evidence that he considered Mr Faux was making trouble for him, and Mr Faux had been abusive towards him at other times. He considered that Mr Faux was trying to make him quit his work. Mr Engelbrecht concluded he was going to address Mr Faux’s conduct with Mr AJ Ali Afroz (Mr Ali), Site-Plant Manager.

[23] Mr Engelbrecht requested Ms Byrd prepare a statutory declaration of the conversation that occurred between herself and Mr Faux on 3 January 2017. She did so, and had that declaration sworn on 16 January 2017.

Events of 16 January 2017

[24] On 16 January 2017 Mr Engelbrecht approached Mr Ali and said to him that when Mr Ali is not around, Mr Faux is abusive towards him. He said to Mr Ali, “I can’t work with him anymore.”

[25] It is Mr Engelbrecht’s evidence that Mr Ali said to him, “I don’t want to lose you.” Mr Engelbrecht asked Mr Ali whether he could be transferred to another site, as he was aware that employees in the past had been transferred. Mr Ali stated he would think about a transfer to another site, and instructed Mr Engelbrecht to go home. It is Mr Engelbrecht’s evidence Mr Ali said he would call Mr Engelbrecht that afternoon to discuss what had transpired. Mr Engelbrecht handed Mr Ali the statutory declaration from Ms Byrd and left the site.

[26] Mr Engelbrecht explained at the hearing that he had provided Mr Ali with the statutory declaration. He said the following conversation occurred:  9

‘I just said, "This is what happened over the Christmas period", and I said, "I can't deal with it no more. I can't keep going through what he's doing to me", and he read through it. It took him about two or three minutes, and then after that I explained about the concrete pad. I explained about other little issues and about other employees there, what's happened with them, and I said, "I know, I prepared myself in my head that it's not probably going to look good for me because he's a manager, I'm just an operator", and then AJ said, "Well, I don't really want to lose you", and he said there were spots at Bogside, and told me to, "Head on home and I'll give you a call this afternoon".’

[27] Mr Ali did not contact Mr Engelbrecht, and he received the following text message from Mr Faux at 8:37am on 16 January 2017:

‘Stuart I don’t understand why you didn’t see me this morning. I also don’t see why you would go through the trouble of a stat Dec from Julie. You were given a written warning for failing to make contact prior to shift and it’s a simple as that. I will require a written resignation letter should you be wished to be paid out your entitlements as you have not served a notice period. You are also required to return Bmi property such as keys etc. Could you please call to discuss’

[28] It is Mr Engelbrecht’s evidence that he considered he was being dismissed from his job.

[29] Mr Engelbrecht did not provide a written resignation to his employer. It is his contention that he did not resign his employment.

[30] Mr Engelbrecht’s evidence is that he did not call Mr Faux, “Because I sought higher management, AJ, I assumed that once you'd gone higher, there's no need to go – no need to make contact with Dan again. I was expecting a call from AJ.” 10 Mr Engelbrecht’s evidence is that he ignored the text message as he was waiting on a call from Mr Ali as to whether he would be transferred to another site.

[31] Mr Engelbrecht stated that he did not call Mr Ali at any time after 16 January 2017, “because I was doing the right thing – thought I was doing the right thing by waiting on him to contact me. They were the last words.” 11

[32] Mr Engelbrecht submitted that he assumed that Mr Faux must have spoken with Mr Ali as he did not receive a call from Mr Ali, and therefore concluded, in conjunction with Mr Faux’s text message, that his employment had been terminated. Mr Engelbrecht submitted that prior to making the application to the Commission he had not received a phone call from Mr Ali or any further conduct from BMI.

Behaviours of Mr Faux towards Mr Engelbrecht

[33] Mr Engelbrecht led evidence that during the employment Mr Faux had made threats to him of losing his employment whenever Mr Faux was angry in the workplace. He had yelled things such as, “There will be hell to pay”. Mr Engelbrecht believed that since Mr Faux began working for BMI he has been trying to force people to resign so that he can bring in his previous team and friends.

[34] Mr Engelbrecht submitted that Mr Faux had intimidated him in the workplace on a day-to-day basis. Mr Engelbrecht provided an example of the behaviours experienced such as when Mr Faux was walking past him during pre-start and Mr Engelbrecht was getting the machine ready, Mr Faux said to him, "If I see this effing boom not moving, there'll be hell to pay, mate." 12

[35] It was put to Mr Faux in the hearing by Mr Engelbrecht’s representative that Mr Faux swore in an aggressive way to his workforce to which Mr Faux agreed “I don't think that's deniable, I don't disagree with that.” 13 Mr Faux denied, however, that he is intimidating in the workplace.

Mr Engelbrecht’s submissions

[36] Mr Engelbrecht submitted that he considered he had been dismissed by BMI. In the alternative, he submitted that he considered the text message sent by Mr Faux to be a repudiation of his contract of employment.

[37] Mr Engelbrecht submitted that he had formed a view, which was reasonable in all of the circumstances, that there would be no further employment with BMI. He considered the contract of employment repudiated and exercised his right to accept this repudiation by filing an application for unfair dismissal.

[38] Mr Engelbrecht relied on the decision in Mohazab v Dick Smith Electronics Pty Ltd (No.2) [1995] 62 IR 200:

‘It is unnecessary and undesirable to endeavour to formulate an exhaustive definition of what is termination on the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment relationship is not voluntarily left.’

and

‘That is, had the employer not taken the action that he did, the employee would have remained in the employment relationship.’

Overview of BMI’s evidence

Issues of absenteeism

[39] BMI submitted that Mr Engelbrecht had received various warnings throughout his employment for absenteeism and failure to notify his employer of his absence. Mr Engelbrecht’s first written warning was prepared on 25 January 2016, and Mr Faux’s evidence is that he was informed it had been issued to Mr Engelbrecht. It became apparent during the hearing of this matter that it had not been issued.

[40] Mr Faux’s evidence is that Mr Engelbrecht was verbally warned relevant to his absenteeism on or around 20 May 2016, 7 July 2016, 11 August 2016 and 25 November 2016 for failing to attend work and failing to notify his employer. 14

[41] Relevant to Mr Engelbrecht’s non-attendance on 3 January 2017, Mr Faux was Mr Engelbrecht’s supervising manager, 15 and he was unsuccessful in reaching him by telephone to inquire why he was not at work. The following text messages were sent between Mr Faux and Ms Byrd:

To Ms Byrd: Sorry to bother you but do you know when Stuart will be back at work. It’s Dan here. 16

To Mr Faux: Hi Dan, apologies I was suppose to message you this morning. He had an appointment booked for his treatment/medication. He did want to go today until I reminded of his appointment as it is necessary for him to keep up his medication/treatment. Thanks Julie. 17

To Ms Byrd: So will he be in tomorrow

To Mr Faux: yes Dan he most certainly will be. I don’t know who’s looking forward to it more me or him, joking. Without a doubt he will be. I got home a phone yesterday so he should have it with him tomorrow once I’ve set it up.

[42] Mr Faux’s evidence regarding the phone call with Ms Byrd following the above text messages is not inconsistent with that of Mr Engelbrecht, except to the extent of the apparent miscommunication between Mr Faux and Ms Byrd as to what Mr Faux meant by it not being a ‘drama’.

[43] On Mr Engelbrecht’s return to work on 5 January 2017, Mr Faux informed him that he was uncomfortable contacting him through Ms Byrd, as it was his responsibility to contact his employer if he was unable to attend work. Mr Faux informed Mr Engelbrecht it is his responsibility to update his contact details with BMI should his contact details change in the future.

[44] Relevant to the meeting on 13 January 2017, it is Mr Faux’s evidence that Mr Engelbrecht was reminded that it was not acceptable for him to be non-contactable, and contact with his employer should not be made through Ms Byrd.

[45] BMI submitted that Mr Engelbrecht was provided with an opportunity to respond to the issues raised at the meeting or dispute the outcome in writing if he disagreed with the decision. He was notified that any further infractions would result in a final written warning to be issued to him.

[46] Mr Engelbrecht disputed the existence of a first written warning. If he continued to dispute the existence of a first written warning, he was invited to put his concern in writing.

Events of 16 January 2017

[47] Mr Ali provided a witness statement in these proceedings of his recollection of the events on 16 January 2017. 18 Mr Ali submitted that at 7:05am on 16 January 2017 he was driving to work when he was waved down by Mr Engelbrecht on the side of the road. Mr Ali remained in his vehicle and Mr Engelbrecht stood next to his open window. Mr Ali recalls the below conversation:

•  I asked him what was going on.

•  Mr Engelbrecht said that he was finishing up with the Company that day.

•  I was surprised by Mr Engelbrecht’s comment and I asked him, “Why?”

•  Mr Engelbrecht replied, “I’ve had enough and need to move on”.

•  I asked him what he meant.

•  Mr Engelbrecht said that he didn’t think that he was getting along with Dan Faux. He did not provide any reasons why.

•  I asked him, “Have you had a discussion with Dan about your problem between you and him?”

•  Mr Engelbrecht said, “No, it is a waste of time talking to him”. He said, “I think that it will be better if I move on with my life”.

•  I asked Mr Engelbrecht what he was going to do for work.

•  Mr Engelbrecht said, “I’m moving to Sydney. I have a job lined up. I want a fresh start”.

•  Mr Engelbrecht then handed me a piece of paper. I asked him what it was and he said that it was a Stat Dec.

•  Mr Engelbrecht asked me to give the Stat Dec to Mr Faux.

•  I asked Mr Engelbrecht to sit down and discuss his concerns with me and Mr Faux.

•  Mr Engelbrecht said, “No. I’ve made up my mind to move on. It’s better for me and my family. I’m still having problems at home. I think I need a fresh start”. Mr Engelbrecht has told me that he has problems with his son and court orders.

•  I then wished him the best of luck for the future.

•  Mr Engelbrecht then took off and left site.

[48] Mr Ali’s evidence is that shortly after this conversation he notified Mr Faux that Mr Engelbrecht had resigned his employment with BMI effective that day. 19 He provided Ms Byrd’s statutory declaration to Mr Faux. Mr Faux said to Mr Ali, “Can I see him, where is he?” Mr Ali answered, “He’s gone, he’s already out the gate.”20

[49] Mr Faux then sent to Mr Engelbrecht the text message reproduced at [27]. During the hearing, Mr Faux’s evidence was that he was concerned that Mr Engelbrecht had resigned without having given the required notice, and BMI might take the view it could withhold monies owed to Mr Engelbrecht for failing to give notice. Mr Faux’s evidence is that he did not wish for that to happen to Mr Engelbrecht, and that is why he was asking Mr Engelbrecht to put his resignation in writing. 21

[50] During the hearing Mr Faux was asked if he understood the statutory declaration to be a complaint against him. He answered: 22

‘No, I couldn't actually work out the reasons for it because there's a whole lot of detail in there that I didn't understand, like why is that a complaint against me? The reality of it is it doesn't matter what happened with Ms Byrd, it's Stuart's responsibility to call me, and the whole thing doesn't make sense because it doesn't get away from the fact that on the 3rd, Stuart was supposed to ring me and tell me he wasn't coming to work because he had a medical appointment. It's not Julie's position to do it, and I didn't engage in a conversation with Julie because it's not fair either.’

[51] Mr Engelbrecht did not make any further contact with any person from BMI. He did not return company property. Despite the requirement under Mr Engelbrecht’s employment agreement to provide three weeks’ notice of termination, he was not penalised by BMI for failing to provide notice when it considered he had resigned his employment. He was not paid notice in lieu by BMI.

[52] Mr Ali was challenged during cross-examination as to his seniority at BMI. It was contended for Mr Engelbrecht that Mr Ali was more senior than Mr Faux, and therefore when the conversation between Mr Ali and Mr Engelbrecht ensued, Mr Ali should have taken an investigative approach.

[53] Mr Ali’s evidence is that he is at the same level of authority as Mr Faux. Mr Mike Decker is the General Manager, and both Mr Ali and Mr Faux report in to Mr Decker.

[54] In questioning from me, Mr Ali’s evidence is that he had very little to do with Mr Engelbrecht as he did not work in his area. Mr Ali and Mr Engelbrecht exchanged pleasantries and some personal information relevant to Mr Engelbrecht. However, Mr Ali had no reason to spend any time with Mr Engelbrecht, and it is his evidence that they did not have much to do with each other over the months of November and December 2016. At the time of the discussion on 16 January 2017, Mr Ali was not aware of the issues regarding Mr Engelbrecht’s failure to attend for work on 3 January 2017.

[55] Mr Faux submitted that Mr Engelbrecht was “very aware that I was his manager”. 23

[56] BMI submitted that Mr Engelbrecht resigned from his employment and was not terminated at the initiative of BMI, nor was he constructively dismissed. BMI submitted that Mr Engelbrecht’s resignation was provided three days after the issuing of the warning after due consideration by him. It could not be said to have been given in the heat of the moment.

[57] Relevant to the relationship between Mr Faux and Mr Engelbrecht, there had been a short break in Mr Engelbrecht’s capacity to attend for work with BMI for a period between early September 2016 and early November 2016. It is unnecessary to state in this decision the reasons why Mr Engelbrecht was not in attendance at work, other than to say the communication from Mr Engelbrecht to Mr Faux leading up to this absence was extremely complementary of Mr Faux, including the following:

‘Thanks mate for calling trying to offer a bit of support I appreciate you going out of your way to do that. It’s obviously been very stressful, tiring, and frustrating trying to sort out my personal out side of work issues/situations….’

BMI’s submissions

[58] BMI submitted that at no time was there an intention by BMI, through the actions and statements of Mr Faux and Mr Ali to bring about the termination of the employment relationship. On 16 January 2017, Mr Ali encouraged Mr Engelbrecht to participate in a three-way discussion with Mr Faux to address the concerns Mr Engelbrecht had in relation to Mr Faux.

[59] Reference was had to the Full Bench decision in O’Meara v Stanley Works P’L (PR973462) (11 August 2006) at [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 decision 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 of that the appellant had no effective or real choice but to resign.’

Legislation and applicable case law

[60] Section 386 of the Act states:

‘386 Meaning Of Dismissed

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.’

[61] The Industrial Relations Court of Australia held in Mohazab: 24

‘...a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship...plainly an important feature is that the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’

[62] BMI have articulated the leading authority in O’Meara at [59].

[63] If Mr Engelbrecht is correct and the employment ended on the employer’s initiative, or if it is determined he resigned his employment but was forced to do so because of conduct, or a course of conduct engaged in by his employer, the Commission will have jurisdiction to determine whether his dismissal was harsh, unjust or unreasonable.

[64] If the Commission does not so find, the application will be dismissed for want of jurisdiction.

Consideration

[65] On the evidence before the Commission, BMI had counselled Mr Engelbrecht on four occasions (May, July, August and November 2016) in relation to his non-attendance at work and failure to report his absence.

[66] On Mr Engelbrecht’s failure to attend for work and personally notify his absence on 3 January 2017, and the subsequent miscommunication between Mr Faux and Ms Byrd, Mr Faux was determined to issue to Mr Engelbrecht a written warning.

[67] Having regard to the fact that the purported second written warning was already prepared to be issued at the meeting on 13 January 2016, I find that Mr Faux was prepared to issue to Mr Engelbrecht the written warning regardless of what Mr Engelbrecht had to say in his defence.

[68] The warning dated 13 January 2017 states the following:

‘Description of infraction:

Stuart did not ring to inform Richard or Dan that he would not be at work Tuesday or Wednesday (3-4/1/17) and efforts had to be made to contact him via his partner. This was after a 1st Warning and repeated verbal warnings.

Plan for Improvement:

Stuart is to follow company policy to update his contact details when his number changes via Employment Hero or with the Site Admin. Stuart is to also to [sic] advise from 4.30am onwards to Dan or Richard if he is unable to attend work for the day.’

[69] It is not contested that Mr Engelbrecht did not ring to inform BMI that he would not be at work on Tuesday, 3 January 2017. I consider Mr Engelbrecht’s various explanations as to why he could not directly communicate with BMI that morning to be largely unacceptable. He had opportunity to communicate his absence, but did not do so, and his explanation that he slept in or was attending a doctor’s surgery are not satisfactory to explain why he was unable to use his own phone, or that of Ms Byrd’s to make a brief phone call to Mr Faux.

[70] Based on information from Ms Byrd, Mr Engelbrecht considered that he was not required to attend for work on 4 January 2017. I accept Mr Engelbrecht relied on Ms Byrd’s communication of her conversation with Mr Faux. It is easy to see why Mr Faux and Ms Byrd miscommunicated on this subject. “No dramas”, as stated by Mr Faux could easily have led Ms Byrd to the view that Mr Faux did not require Mr Engelbrecht to attend for work until 9 January 2017. The telephone conversation followed the text messaging. In my considered view, neither Mr Faux, Ms Byrd not Mr Engelbrecht were to blame for the miscommunication; it was entirely understandable that Mr Engelbrecht considered he was on leave until 9 January 2017 based on Ms Byrd’s understanding of the conversation.

[71] When Mr Engelbrecht did not attend for work on 4 January 2017, and as a result of the ensuing conversation between Mr Faux and Mr Engelbrecht on 5 January 2017, Mr Faux then determined to issue the written warning to Mr Engelbrecht. The written warning issued to Mr Engelbrecht was unfair in that it referred to his non-attendance on 4 January 2017, and the purported first written warning. In my view, Mr Engelbrecht’s non-attendance on 4 January 2017 is explained by the miscommunication.

[72] The ‘Plan for Improvement’ contained within the written warning is reasonable in all of the circumstances. There is no doubt that Mr Faux had grown tired of having to communicate with Mr Engelbrecht through Ms Byrd. Mr Engelbrecht also had a responsibility to contact his employer early in the morning before the commencement of work to notify absences. In the situation where he changed his mobile telephone number, he was reminded of his obligation to update his contact details. This would not have been an onerous obligation on him.

[73] Mr Engelbrecht was, however, upset by Mr Faux’s declaration that there existed a first written warning. I consider Mr Faux’s conduct in the meeting to be less than satisfactory, and where BMI was seeking to rely on a purported first written warning, it would not have been unreasonable to shortly adjourn the meeting, or commit to producing it to Mr Engelbrecht in the hours or days following the meeting. To require Mr Engelbrecht to request in writing the production of the first written warning was unreasonable.

[74] Following the meeting of 13 January 2017, Ms Byrd completed a statutory declaration on 16 January 2017. Mr Engelbrecht attended for work on 16 January 2017 and rang Mr Ali. When the call was not answered he found Mr Ali who was in his vehicle. There is competing evidence as to what was said between Mr Engelbrecht and Mr Ali.

[75] Neither Mr Engelbrecht nor Mr Ali gave compelling evidence as to the conversation that occurred on 16 January 2017. Mr Ali says that Mr Engelbrecht appeared distressed, stated he could not work with Mr Faux any longer, produced Ms Byrd’s statutory declaration and said he was resigning and going to relocate to Sydney.

[76] Mr Engelbrecht’s evidence is that he insisted he could not work with Mr Faux any longer and wanted a transfer to another part of the business, to which Mr Ali committed he would look into it. Mr Engelbrecht denies that he said he was resigning or going to Sydney. It is Mr Engelbrecht’s evidence he was assured by Mr Ali that he would inquire about the possibility of a transfer and Mr Ali would contact him by telephone.

[77] What is not contested is that Mr Engelbrecht gave to Mr Ali the statutory declaration, complained of Mr Faux, and Mr Ali offered to organise a meeting between the three men. Mr Faux declined Mr Ali’s offer to meet with Mr Engelbrecht.

[78] With unsatisfactory evidence from both witnesses, it is not clear if Mr Engelbrecht resigned his employment in this conversation with Mr Ali. I do not consider that Mr Ali had any reason to fabricate his version of the conversation with Mr Engelbrecht. His evidence is that he rarely saw Mr Engelbrecht, so it is not clear why he would invent a story about Mr Engelbrecht leaving his job and relocating to Sydney.

[79] Similarly, it is not clear why Mr Engelbrecht went to the trouble of procuring a statutory declaration from Ms Byrd if he resigned his employment on 16 January 2017. If he did resign his employment as asserted by Mr Ali, it was on the basis that he was frustrated with Mr Faux and had considered he would not be able to work with him for any future period.

[80] However, other than in the meeting of 13 January 2017 where, in my view, Mr Faux acted poorly requiring Mr Engelbrecht to request in writing the purported first written warning, I do not accept that Mr Faux was an oppressive manager, necessitating the complaints by Mr Engelbrecht. On Mr Engelbrecht’s evidence, he could no longer work under Mr Faux. When pressed by me during the hearing, Mr Engelbrecht stated that Mr Faux was harassing him and other employees, and he considered it was necessary to go to Mr Ali to seek assistance with removing himself from Mr Faux’s management. 25

[81] On all of the material before the Commission, including Mr Faux’s concession that he could swear aggressively at employees at [35], Mr Engelbrecht seemed to have a reasonable view of Mr Faux as demonstrated at [57]. Mr Faux’s benevolence relevant to Mr Engelbrecht’s non-attendance during the two-month period at [57] is to be commended. There does not appear to be a genuine catalyst to support Mr Engelbrecht’s demonstration that he could no longer work with Mr Faux or even participate in a meeting with him facilitated by Mr Ali.

[82] With the conflicting evidence of Mr Ali and Mr Engelbrecht, and having observed both men at the hearing in cross-examination, I have formed the view that Mr Ali was cavalier in his comprehension of the conversation with Mr Engelbrecht. I accept that Mr Ali had not had very much contact with Mr Engelbrecht for some months other than greetings and brief conversations. I also accept that Mr Ali is not in a senior role to Mr Faux – they are peers – and being approached by Mr Engelbrecht with a statutory declaration sworn by Ms Byrd, over an issue Mr Ali had no knowledge of, Mr Ali was somewhat bemused by the conversation. I do not consider Mr Ali was bemused in a humorous way, but in a way of bewilderment as to why Mr Faux’s direct report was approaching him, complaining of being unable to work with Mr Faux and handing to him a statutory declaration.

[83] I find that Mr Engelbrecht was most likely to have been anxious, and trying to demonstrate that he had not been at fault, particularly with respect to his non-attendance at work on 4 January 2017, and the communication between Mr Faux and Ms Byrd. Following the meeting of 13 January 2017, he had, somewhat irrationally, determined that he could no longer work with Mr Faux. He could, of course, have requested in writing evidence of the first written warning, and it would have been discovered by BMI that it had not been issued at all.

[84] I find Mr Ali’s bewilderment was punctuated by what appears to be an attribute that he does not seem to be a very good listener. I do not find the contest between Mr Ali and Mr Engelbrecht’s version of the conversation to be due to any untruthfulness of any witness. Having observed Mr Ali, I find that it’s unlikely he listened intently to all that Mr Engelbrecht had to say.

[85] Coupled with Mr Engelbrecht’s somewhat irrational and immediate desire to never work with Mr Faux again, it is not incomprehensible to find that where Mr Engelbrecht considers Mr Ali agreed to look into a transfer for him, this was not said by Mr Ali.

[86] It is not possible to determine exactly what was said between the parties. On the balance of probabilities, I do not find that Mr Engelbrecht expressly resigned his employment. He may have made a reference to Sydney, but on the evidence before the Commission I cannot be satisfied Mr Engelbrecht stated a positive intention to end his employment.

[87] That, however, is not the determining issue. Mr Ali reported to Mr Faux within a short period of time that Mr Engelbrecht had resigned his employment. Having observed Mr Ali, I do not consider he acted maliciously or invented the story. I consider that is what he took away from the conversation, incorrect or otherwise.

[88] When Mr Ali communicated his view of the conversation to Mr Faux, Mr Faux attempted to telephone Mr Engelbrecht, and when he was unsuccessful he then sent the relevant text to Mr Engelbrecht at [27] and reproduced again below:

‘Stuart I don’t understand why you didn’t see me this morning. I also don’t see why you would go through the trouble of a stat Dec from Julie. You were given a written warning for failing to make contact prior to shift and it’s a simple as that. I will require a written resignation letter should you be wished to be paid out your entitlements as you have not served a notice period. You are also required to return Bmi property such as keys etc. Could you please call to discuss’

[89] In dissecting the text message, it is important to understand that Mr Faux had been informed by Mr Ali that Engelbrecht had verbally resigned his employment. Mr Engelbrecht’s evidence is that he had not resigned his employment, so on receipt of this text message, he considered that he had been dismissed or constructively dismissed.

[90] The first three sentences of the text message inform the reader that Mr Faux is surprised Mr Engelbrecht didn’t see Mr Faux that morning. It was a Monday morning following the issuing of the written warning on the Friday before. Mr Faux’s communication is that he is surprised Ms Byrd went to the trouble of declaring a statutory declaration when Mr Engelbrecht had ‘simply’ been given a written warning for failing to make contact prior to shift.

[91] The second half of the text message is the most important in determining how the employment came to an end. Remembering that on Mr Engelbrecht’s evidence he does not consider that he had resigned his employment. He received a text message stating, “I will require a written resignation letter should you be wished to be paid out your entitlements as you have not served a notice period.”

[92] Mr Engelbrecht’s evidence is that on receipt of this text message he considered that he was being dismissed. He was annoyed that he had gone to Mr Ali, whom he considered to be more senior than Mr Faux. He could not understand why the person he had complained about was then corresponding by text.

[93] Mr Faux’s text message invited Mr Engelbrecht to call him. It is Mr Engelbrecht’s evidence that he was awaiting Mr Ali’s telephone communication to inform him of a transfer, however that phone call never came.

[94] During the hearing it became evidence that Mr Engelbrecht had submitted a workers’ compensation claim on 18 January 2017 alleging a workplace psychological injury relevant to Mr Faux’s conduct. Mr Engelbrecht alleged he had been constructively dismissed.

[95] The claim was rejected on the basis that Workcover considered that reasonable management action had been carried out relevant to Mr Engelbrecht’s employment. I have not had regard for the decision of Workcover, however I note that Mr Engelbrecht considered as early as 18 January 2017, when he filed the claim, that he had been constructively dismissed.

[96] Having regard to s.386(1)(a) of the Act, I do not consider the text message sent by Mr Faux to be a text message terminating Mr Engelbrecht’s employment. The text message was sent by Mr Faux with a genuine belief, based on what Mr Ali had stated to him that Mr Engelbrecht had resigned his employment. The text message invited Mr Engelbrecht to put in writing his resignation. It did not solicit Mr Engelbrecht’s resignation, as odd as it may have been to Mr Engelbrecht to receive such a text message.

[97] Further, Mr Faux’s text message demonstrates that he considered Mr Engelbrecht’s reported decision to resign his employment to be an over-reaction, when he had ‘simply’ received a written warning. On Mr Faux’s tone, it is clear he is surprised Mr Engelbrecht had reportedly resigned to Mr Ali. He invited Mr Engelbrecht to call him to discuss.

[98] As odd as it might have been to Mr Engelbrecht to receive such a text message from Mr Faux, it cannot be held that Mr Engelbrecht could reasonably have concluded that he had been dismissed at the employer’s initiative. His evidence is that he didn’t wish to correspond with Mr Faux, and he considered that he had reported his alleged conduct to a more senior manager in Mr Ali. If Mr Engelbrecht held a genuine belief the text message could constitute a dismissal, he could have contacted Mr Ali to understand the employer’s position on the matter. As is demonstrated earlier, he had Mr Ali’s number, and on his evidence, he was still awaiting his telephone call for a transfer to be organised.

[99] Relevant to the necessary consideration in s.386(1)(b), as I have said earlier, I do not consider that Mr Engelbrecht expressly resigned his employment during the conversation with Mr Ali.

[100] Did Mr Engelbrecht then effectively resign by no longer attending for work on receipt of the text message on 16 January 2017? If so, could it be said that his decision not to attend for work was a forced decision as a result of the conduct, or a course of conduct engaged in by his employer?

[101] Mr Engelbrecht had opportunity to challenge the text message sent by Mr Faux. It was available to him to further contact Mr Faux, or if he felt uncomfortable with that course of action, contracting Mr Ali or any other senior manager of BMI.

[102] BMI’s relationship with its employee is not limited to the relationship between Mr Faux and Mr Engelbrecht. While one person’s conduct in the workplace may make a person’s attendance at work seemingly unbearable, in an organisation the size of BMI, Mr Faux’s alleged conduct towards Mr Engelbrecht would not isolate Mr Engelbrecht from having the alleged conduct investigated. Alternatively, if Mr Engelbrecht considered that Mr Faux’s conduct was causing him a medical condition, he could have validly been excused from work to seek medical attention.

[103] Mr Engelbrecht’s conclusion that he had been dismissed or constructively dismissed as a result of the text message, and reported to Workcover as early as 18 January 2017 cannot support a finding that he was forced to leave his employment due to the conduct of the employer. Mr Engelbrecht’s concerns regarding Mr Faux’s alleged conduct are overstated and cannot be supported on the evidence before the Commission.

[104] Mr Engelbrecht’s employment came to an end following his failure to attend for work beyond 16 January 2017, and failure to communicate with his employer concerns he had following receipt of the text message from Mr Faux. If Mr Engelbrecht held a genuine belief that Mr Ali was making inquiries as to a transfer of employment (denied by Mr Ali), it was incumbent upon Mr Engelbrecht to communicate with BMI and inform BMI that he had challenges with Mr Faux as his manager, and have those concerns investigated.

[105] As I have said earlier, Mr Faux’s text message to Mr Engelbrecht does not constitute a dismissal on the employer’s initiative.

[106] Mr Engelbrecht did not make any further contact with his employer until such time as he made his application for unfair dismissal.

[107] I have also had regard to the company-issued items Mr Engelbrecht retained following 16 January 2017. While Mr Faux had requested the return of items, these were not returned. During the hearing it became evident Mr Engelbrecht had continued possession of an excavator key and company-issued uniforms. Mr Faux’s evidence is that the key is widely available and can even be purchased on EBAY, and it did not cause him consternation that it was not returned.

[108] Similarly, Mr Faux typically does not seek to recover from employees their worn uniforms at the end of their employment. He does not for the reason that he would not issue a worn uniform to another person. When questioned by me that it might be prudent to recover a uniform from a former employee to ensure the uniform is no longer in circulation, Mr Faux stated that he does not do that, and the thought had never crossed his mind. 26 Accordingly, the failure of Mr Engelbrecht to return company-issued items, or the failure of BMI to chase Mr Engelbrecht up on the return of the company-issued items is a neutral consideration as to how the employment came to an end.

[109] Relevant to the test in O’Meara, and having regard to the Full Bench authority in Fingal Glen 27 at [21], I do not accept that Mr Engelbrecht had no effective or real choice but to resign. Further, I do not conclude that he had no effective or real choice to determine that he had been dismissed on account of the text message he had received. He had available to him many avenues to make inquiries of Mr Faux, Mr Ali or any other manager at BMI. He unreasonably concluded he had been dismissed.

[110] When one undertakes an objective analysis of the employer’s conduct, Mr Faux’s text message to Mr Engelbrecht did not state words to the effect, “I need you to resign.” On receipt of the text message, it cannot be concluded that the probable result was Mr Engelbrecht’s resignation, nor a determination that he had been dismissed at the initiative of the employer. Mr Engelbrecht could easily have responded in a return text, “I have not resigned.”

Conclusion

[111] I find that Mr Engelbrecht’s employment did not come to an end pursuant to s.386(1)(a) or (b) of the Act. As a consequence, there has been no dismissal for the purposes of s.385 of the Act.

[112] BMI’s jurisdictional objection is upheld and accordingly the application for relief pursuant to s.394 of the Act must be dismissed.

COMMISSIONER

 1   Respondent’s F3 ‘Attachment A’

 2   Ibid

 3   Respondent’s F3 ‘Attachment C’

 4   Statement of Daniel Faux at [37].

 5   PN507

 6   Statement of Stuart Engelbrecht dated 4 May 2017

 7   PN492

 8   PN885

 9   PN371 – PN 372

 10   PN390

 11   PN410

 12   PN485

 13   PN756

 14   Ibid at [10] – [18].

 15   PN666.

 16   Respondent’s F3 ‘Attachment A’.

 17   Ibid.

 18   Statement of AJ Ali Afroz dated 24 April 2017.

 19   Ibid.

 20   PN916.

 21   PN920

 22   PN913

 23   PN851

 24   (1995) 62 IR 200 at 205-206.

 25   PN490

 26   PN961

 27   Kylie Bruce v Fingal Glen Pty Ltd (in liq) [2013] FWCFB 5279

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