DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Christopher Burgess
v
Optus Administration Pty Ltd T/A Optus
(U2021/2119)

Application for an unfair dismissal remedy.

[1] Mr Christopher Burgess (the Applicant) has applied to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to his dismissal by Optus (Administration) Pty Ltd (Optus). He claims to have been constructively dismissed when he tendered his resignation via email on 22 February 2021. Mr Burgess commenced employment in 2015 and held the position of Team Leader Operational Performance Insights Analyst until his transfer into the collections and recoveries team from around 2018. Reporting lines altered over the period 2018 and 2019 with Mr Burgess appointed to the role of strategy and reporting analyst from March 2019 on a permanent basis. 1

[2] Optus oppose the application and submit that the Commission has no jurisdiction to hear the substantive application as Mr Burgess was not dismissed from his employment and therefore is not a person protected from unfair dismissal within the meaning of the Act.

[3] In particular, Optus submit that the resignation was voluntary and denies that Mr Burgess was left with no alternative other than to resign. It submits that Mr Burgess’ resignation is not a dismissal within the meaning of s.386(1) of the Act. 2

[4] Mr Burgess submits that in around October 2019 he reported to a new manager and in April of 2020 his manager commenced an informal performance improvement plan. It was during the more formal performance improvement plan in October 2020 that Mr Burgess made a complaint that he was bullied by his manager. 3 This complaint resulted in a change to Mr Burgess’ reporting line while his complaint was subject to investigation. The investigation of the complaint determined that Mr Burgess was subject to reasonable management action during a performance improvement process (PIP) and the complaint of bullying was rejected.

[5] Mr Burgess was absent from work from December 2020 and resigned on 22 February 2021. Importantly it was during this period of absence that Mr Burgess sought a review of his bullying complaint. The review of the bullying complaint was not concluded at the time that Mr Burgess emailed his resignation. Mr Burgess also acknowledged that his reporting manager offered him the opportunity to cancel his resignation, and in relation to this, he submits that he did not consider it was a genuine offer. 4

[6] Mr Burgess seeks a remedy of compensation.

[7] On 8 April 2021 I listed this matter for mention and directions and written directions were issued for the filing of submissions concerning the Respondent’s jurisdictional objection and the merits of the application. A hearing date was scheduled for 31 May 2021 and a member assisted conciliation was arranged with another member of the Commission prior to the hearing.

[8] A non-compliance hearing was scheduled for 12 May 2021 after Mr Burgess failed to comply with directions for the filing of materials. It was determined at this hearing that only the matter of jurisdiction would proceed, and Mr Burgess was to file his materials by 12 May 2021. Subsequently, and as a result of the fact that the merits of the application would not be dealt with initially and given the parties had not moved from their original positions, the member assisted conciliation was cancelled.

[9] Despite the directions requiring the filing of materials by Mr Burgess by close of business on 12 May 2021, he failed to file his materials by the deadline. Instead, the Applicant’s materials were filed and served on Thursday 13 May 2021, and were accepted by the Commission.

[10] Optus tendered a witness statement by Ms Bree Davenport with 17 attachments and both Mr Burgess and Ms Davenport gave evidence during the hearing.

[11] This decision determines the jurisdictional matter relating to whether Mr Burgess was constructively dismissed and therefore protected by the unfair dismissal provisions of the Act.

The Facts

[12] On 22 February 2021 at 5:07pm, Mr Burgess tendered his resignation with notice by email to his manager, citing the reason that he is unable to continue to “accept the workplace bullying conditions” and it is easier to “remove myself from this environment and minimise further harm to my health.” 5

[13] On 23 February 2021 at 4:32pm, Ms Davenport emailed Mr Burgess acknowledging receipt of his email and noted his concerns. In addition, she referred to the actions of Optus to resolve his concerns, including the review of the investigation into the bullying complaint, which was still underway. Mr Burgess was asked to reconsider his decision, however, should Ms Davenport not receive advice of his withdrawal of his resignation that evening, she would process the resignation effective from 23 February 2021 with notice paid in lieu. 6

[14] Mr Burgess submits that he was forced to resign from his employment because of the health impacts arising from the performance improvement plan process, together with the findings that the behaviour complained of in his bullying complaint was found to be reasonable management action. 7

[15] In this instance, Mr Burgess relies on s.386(1)(b) of the Act, as Optus did not initiate the termination of employment. To satisfy the requirements of the Act, Mr Burgess is required to demonstrate that his resignation was forced because of the conduct engaged in by his employer.

Section 386 of the Act and the legal principles

[16] I am required to determine whether Mr Burgess was a person protected from unfair dismissal within the meaning of s.386 of the Act. Section 386 (1) of the Act provides:

“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.”

[17] To engage the unfair dismissal provisions, the applicant is “dismissed” where the conduct of the employer is such that it causes the resignation. Further the conduct of the employer must be such that it intends that the employment relationship comes to an end rather than the voluntary termination of employment by the applicant.

[18] The Full Bench in Mohazab v Dick Smith Electronics Pty Ltd (No 2) considered the action of the employer, resulting in the termination of employment:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at 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 and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.

This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd ("David Graphics"), Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ. His Honour, at 3, referred to the situation of an employee who resigned because "he felt he had no other option". His Honour described those circumstances as:-

"... a termination of employment at the instance [of] the employer rather than of the employee".

and at 5:-

"I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that Constituted a termination of the employment."” 8

[19] Further the Full Bench found:

“On the finding of fact that the respondent directed the appellant to resign or have the police "called in", it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee.” 9

[20] The question of whether the employee had no real choice but to resign is not a matter where the employee did not agree with the circumstances, rather the action of the employer must be such that the employee did not have a real choice but to resign; had the action of the employer not occurred, the employee would not have resigned. It is important to consider the facts objectively, where an employee does not like the circumstances, is uncomfortable, finds it difficult or distressing, such characterisations alone would not satisfy the principles in Mohazab. 10

[21] Other relevant authorities regarding constructive dismissal concern situations where an employer can treat the resignation as an unambiguous resignation. Where a resignation occurs in the heat of the moment or under extreme pressures or circumstances, it is advisable that employers take steps to confirm that the resignation was intended. 11

[22] In this case, Mr Burgess was subject to a performance improvement plan. He was distressed by the process and this is evident from his evidence including the evidence of his bullying complaint against his manager.

[23] The purpose of a performance improvement plan (PIP) is to provide an employee with the opportunity to rectify unsatisfactory performance or conduct to meet the employer’s expectations and the PIP will often include actions or steps to meet them. At Optus, the PIP is referred to as the informal performance improvement process. A disciplinary process, or a formal performance management plan will follow where the requirements of the plan or the employer’s expectations are not met. If the employer’s process does not afford procedural fairness and/or is inconsistent with the requirements of the employee’s position, an unfair dismissal may result. It is common practice for employers to engage employees in a PIP which is tailored for the individual employee, and it is not uncommon for both parties to find the process uncomfortable, particularly where an employee disagrees with any aspect/s of the PIP.

[24] However, in determining whether Mr Burgess had no real choice but to resign requires an objective view of the circumstances and the action of the employer. Specifically did the actions of the employer intend to bring the employment relationship to an end. 12

The Evidence in this matter

[25] In October 2019 Mr Burgess reported to Ms Saldanha and in April 2020 his manager triggered an informal performance improvement process. Mr Burgess gave evidence that 6 months is a reasonable period for a new manager to assess a direct report’s performance. He also gave evidence that around April 2020 their relationship changed. 13 This change in relationship coincided with Ms Saldanha’s informal performance improvement discussions with Mr Burgess.

[26] In late April 2020, Ms Saldanha emailed her manager Ms Bree Davenport about her discussions with HR relating to proceeding with an informal performance plan with a weekly check in with Mr Burgess. 14 Mr Burgess was subsequently placed on a formal performance improvement plan in June 2020. The completed performance improvement plan covering the period 1 June to 26 June 2020, with commentary by Ms Saldanha and Mr Burgess was tendered in evidence.15 I observe that neither party signed the PIP and there was no contest regarding its authenticity. A first formal warning following the completion of the performance improvement plan was issued on the basis that Mr Burgess had not met Optus’ expectations in relation to the 4 tasks outlined in the performance improvement plan.16

[27] Mr Burgess gave evidence that the warning was unfair given that the last 2 tasks were beyond his skill set and he submits that that his manager conceded that, even though their reference remained in the warning letter. He further gave evidence that the first task became 4 tasks, and the final delivery of the task was therefore understandably after the due date set.

[28] Ms Bree Davenport gave witness evidence and tendered a witness statement with attachments. 17 Ms Saldanha was not called as a witness as she had left Optus. However, Ms Davenport gave evidence that Ms Saldanha was employed in the role which she held for a period of 22 months before her promotion to Associate Director Performance Analytics Environment in Group Credit Risk. This promotion resulted in Ms Davenport being the 2-up manager for Mr Burgess. Ms Davenport described the responsibility of the team to provide credit risk decisions on new customers/services, supporting customers with payment arrangements and recovery activities. Ms Davenport further gave evidence that the performance analytics team worked in a fast-paced environment that meets the reporting needs of multiple stakeholders in providing timely insights to improve financial and operational performance of group credit risk.18

[29] Mr Burgess was employed by Optus in the position of Team Leader reporting to the Manager Reporting and Data Management in April 2015. While giving evidence, Mr Burgess conceded that his performance was subject to performance management as a team leader, and he made the decision to shift to a role that did not require the management of a team. The change in role resulted in employment in the position of strategy and reporting analyst, initially on secondment and then permanently from 7 March 2019 reporting to the Collections Insights and Analytics Manager. Mr Burgess remained in the same role until his resignation in February 2021.

[30] Ms Davenport also gave evidence that Ms Saldanha shared with her the concerns regarding Mr Burgess’ performance and that she had seen the paper trail including the first performance improvement plan. There is no evidence that the tasks identified in the plan were considered unreasonable or unachievable by him and within the required timeframes at the time that they were set.

[31] The first performance improvement plan contains comments from Mr Burgess where he acknowledges that he “met the expected output that I understood was required” … “Unfortunately as the purpose of task 1 was not clear to me and with the actions to deliver 4 pieces of work I launched straight into build mode and did not apply an effective project management process.” He further states that the learnings from the PIP include having a “clear vision of what the stakeholders is requesting” and “how I need to be more structured in planning and execution.” 19 The observations by Mr Burgess were consistent with those from Ms Saldanha, where she describes that the outcome of task 1 ultimately met the outcome outlined in the document but the learnings required more time planning the task, identifying the stakeholder, creating a mock up and getting signoff, communicating when timelines are missed and speed of delivery.20 This evidence is inconsistent with the oral evidence of Mr Burgess where he states that task 1 was altered and resulted in 4 separate pieces of work; rather the evidence supports the contention that Mr Burgess dived straight into the task without checking that his understanding of the task aligned with stakeholder expectations and his failure to plan and communicate, and this resulted in further work.

[32] The first formal warning 21 issued to Mr Burgess on 13 July 2020 followed a meeting where the concerns of Optus were discussed and having considered his responses, it was made clear that failure to meet the remaining performance improvement process would lead to further disciplinary action and potentially termination of employment. The warning also states that with the support offered to him and with the agreed actions, that Mr Burgess would achieve the required performance improvement.

[33] A second performance improvement plan was initiated in July 2020 to cover the period 15 July to 12 August 2020. 22 This PIP required daily catch ups and contained 3 tasks with detailed outcomes, actions to be taken, support and the required result with timeframes. The PIP tendered in evidence did not contain commentary by way of assessment by either Mr Burgess or Ms Saldanha. Following the PIP, Mr Burgess was issued with a second and final formal warning dated 27 August 2020.23 This warning identified that task 1 was carried over from the previous PIP and concluded late and the 2 remaining tasks were not completed by their due date.

[34] Optus tendered evidence of an email exchange by Ms Saldanha with 2 key stakeholders on 7 September 2020 seeking feedback on 2 of the tasks that Optus say comprised the second PIP. Both stakeholders provided feedback on 8 September 2020, 24 following the presentation by Mr Burgess to them on 7 September 2020. This feedback was received after the second and final warning issued to Mr Burgess. Despite the tasks being delivered late, both stakeholders provided feedback that the tasks did not meet expectations of stakeholders and expected actionable insights.

[35] Optus tendered evidence that Ms Saldanha had advised Mr Burgess that a third PIP would be implemented on 10 September 2020 and this led to an exchange where Mr Burgess challenged his manager on the timelines set by her as well as the allocation of new stakeholders to the tasks set for him. It is evident from the exchange that there was disagreement over the purpose of the tasks in the PIP.

[36] It was also after the introduction of the third PIP that Mr Burgess raised a bullying complaint against Ms Saldanha and consequently, while the complaint was subject to investigation, Mr Burgess was directed to directly report to Ms Davenport. Ms Davenport also placed on hold the third PIP while the bullying complaint was subject to investigation. This evidence was not contested. 25

[37] While Mr Burgess was reporting to Ms Davenport, they agreed on work plans with due dates over the period 13 October to 23 November 2020. Ms Davenport was concerned that the workplans had not been met as agreed, and she then invited Mr Burgess to a performance discussion on 26 November 2020. The meeting invite was clear that the purpose was a formal discussion with HR present regarding further disciplinary action where the result may be termination of employment. Mr Burgess was informed that he was welcome to bring along a support person. 26 This meeting did not take place as Mr Burgess called in sick and did not return to the workplace.

[38] Mr Burgess also described Ms Davenport as being hostile when during a discussion in November 2020 he was “cut off in a hostile way”. Ms Davenport while giving evidence conceded that during their discussion in November 2020, when she expressed her concerns with his performance, that due to his interruptions she advised him in a serious tone that a formal meeting with HR would be set to discuss his performance.

[39] Also, during November 2020, before his absence, Mr Burgess was informed that his bullying complaint was rejected on the basis that the behaviour he complained of was reasonable management action. This caused him concern as he believed following discussion with HR that he would be required to again report to Ms Saldanha, even though neither of his managers communicated this to him. Mr Burgess requested a review of HR’s decision that Ms Saldanha’s behaviour was reasonable management action. Optus agreed to conduct a further review of his complaint.

[40] While giving evidence, Mr Burgess conceded that the response regarding his bullying complaint that it was reasonable management action, was reasonable on the evidence that he presented to HR. 27 He did give evidence that the HR investigator stated that he was to return to report to Ms Saldanha given the outcome of his bullying complaint and he submits that this made him feel ill.

[41] Mr Burgess contends that the language and tactics engaged by Ms Saldanha were in his view bullying, and he submits that the PIP was not developed for the purpose of improving his performance, but rather a process to set him up to fail.

[42] Mr Burgess described, while giving oral evidence, that the reason for his resignation was that Ms Davenport was hostile, that should he return to work he would be faced with an inappropriate PIP, the potential to report to Ms Saldanha and a negative environment for his mental health. Mr Burgess describes the PIPs as inappropriate because they contained a series of tasks rather than improvement areas and no identifiable skill gaps. Further he criticised the timeframes on the basis that Ms Saldanha “does not know data” and relies on deadlines set by another employee and she added a few extra days for each task. 28

[43] While Mr Burgess described the behaviour of Ms Saldanha as affecting his mental health and in turn impacted his ability to perform, no evidence was presented to either his employer or in support of his submissions to this Commission regarding mental health.

[44] While I accept that Mr Burgess was distressed by the performance improvement process, I do not accept that the process was such to meet the definition of bullying. The first performance improvement plan clearly identified, and Mr Burgess agreed, that the performance concerns related to his failure to plan the assigned task, identify the stakeholder and confirm their expectations, communicate when timelines are missed and address speed of delivery. In respect to the tasks assigned, it is not in dispute that Mr Burgess failed to meet the timelines, including those set by Ms Davenport in the agreed work plans.

[45] The language used in the performance improvement plans and warning letters do not on face value meet the standards of bullying. Nevertheless, Mr Burgess contends that he had no option but to resign because a return to Optus would not be a situation where he could perform in a safe and healthy environment.

[46] Further in relation to the submission that the PIP was not intended for the purpose of performance improvement, but rather to set him up to fail, the evidence does not support this. There is no evidence that the tasks in the PIP which contained identifiable performance outcomes, actions to be taken by Mr Burgess, the support available to achieve the tasks and the measure of results could be argued to have no performance improvement purpose.

[47] Reasonable performance management is not bullying, and Mr Burgess did not satisfy the Commission that the behaviour he complained of constituted bullying or that it was an unreasonable management performance process. The bullying complaint concerning the performance management process initiated by Ms Saldanha was subject to further review and had not concluded at the time of the resignation and the performance meeting invite by Ms Davenport was postponed due to Mr Burgess’ absence on sick leave. These circumstances do not represent a scenario where an employee can be said to have no choice other than to resign.

[48] The onus to establish that the resignation was a constructive dismissal lies with Mr Burgess, and in my opinion this burden has not been met. It was after Mr Burgess failed to meet Ms Davenport’s work plan deadlines that he was invited to a disciplinary meeting. There is nothing unreasonable in the meeting request. In any event Mr Burgess called in sick and remained off work until his resignation in February 2021, a period of around 3 months. There was no evidence of any action taken by Optus to cause the resignation or to repudiate the contract of employment, nor any circumstances that led to a resignation in the heat of the moment.

[49] While I accept that the process of performance management caused Mr Burgess distress, the evidence does not support the contention that the action of the employer caused him no option but to resign. There was no action by Optus either prior to the absence on sick leave or during, that intended to cause the employment relationship to come to an end. Mr Burgess was on sick leave for around 3 months and in his resignation letter he states that “he had not made this decision lightly”. This amounts to a considered decision, or at least no evidence of any distress and presumably, and relevantly, he would have taken into account that sick leave would come to an end and the performance improvement process was not complete nor had the result of the review of the bullying complaint been released. Further, the evidence does not suggest that Mr Burgess was distressed, under extreme pressure or that there were any special circumstances when he penned his resignation.

[50] Mr Burgess resigned on 22 February 2021 at 5:07pm providing the required period of notice and enquired how he should work the notice period out. On 23 February 2021 at 4:32pm Ms Davenport emailed a response acknowledging the resignation and inviting a withdrawal of the resignation. She further states that should he not withdraw she will accept the resignation. Ms Davenport confirmed in the same email that the review of his complaint had not yet concluded. Some 2.5 hours later, Mr Burgess confirmed explicitly in writing that he had no intention to change his decision. These circumstances on any objective analysis do not support the argument that there was no choice but to resign, or that the decision was made while distressed or in the heat of the moment but rather the cessation of Mr Burgess’s employment was due to a voluntary and considered resignation. In any event, and importantly, there was no action by Optus to cause the resignation, and therefore Optus was entitled to treat the resignation as a resignation.

Conclusion

[51] I am not satisfied that Mr Burgess has established that he was constructively dismissed pursuant to s.386(1)(b) of the Act and therefore he is not a person protected from unfair dismissal.

[52] The application is therefore dismissed. An order to this effect is issued in conjunction with the publication of this decision.

COMMISSIONER

Appearances:

Mr C. Burgess for himself

Ms J. Silcock for the Respondent

Hearing details:

2021
Melbourne (via Microsoft Teams)
31 May

Printed by authority of the Commonwealth Government Printer

<PR732101>

 1   Exhibit R1 at [10] and confirmed in witness evidence by Mr Burgess.

 2   Respondent’s outline of submissions at [12] – [15].

 3   Applicant’s outline of submissions at p. 4.

 4   Applicant’s outline of submission at p.6.

 5   Exhibit R1, attachment BD-17 to witness statement of Ms Davenport.

 6   Ibid.

 7   Applicant’s outline of submissions on p. 7.

 8   Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645.

 9   Ibid.

 10   Ibid.

 11   Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999).

 12   O’Meara v Stanley Works Pty Ltd (2006), PR973462 at [23].

 13   Transcript recording at 19:04.

 14   Exhibit R1 – Attachment BD-3 to Witness statement of Bree Davenport.

 15   Ibid at BD-4.

 16   Ibid at BD-5 dated 13 July 2020.

 17   Exhibit R1.

 18   Exhibit R1 at [3] – [8].

 19   Exhibit R1, attachment BD-4.

 20   Ibid.

 21   Exhibit R1, attachment BD-5.

 22   Exhibit R1, attachment BD-6.

 23   Exhibit R1, attachment BD-7.

 24   Exhibit R1, attachment BD-8.

 25   Transcript recording at 49:18.

 26   Exhibit R1, attachment BD-15.

 27   Transcript recording at 54:52.

 28   Applicant’s outline of submissions on page 8-9.