1 Fair Work Act 2009 s.365 - Application to deal with contraventions involving dismissal Mr Douglas Arthur Willetts v BUMA AUSTRALIA PTY LTD (C2023/5349) COMMISSIONER DURHAM BRISBANE, 1 FEBRUARY 2024 Application to deal with contraventions involving dismissal – jurisdictional objection – whether employee dismissed – employee not terminated at the employer’s initiative – employee resigned – application dismissed [1] On 1 September 2023, Douglas Arthur Willetts made a general protections application to the Commission under section 365 of the Fair Work Act 2009 (the Act). Mr Willetts alleges that he was dismissed by BUMA Australia Pty Ltd (BUMA) on 16 August 2023 in contravention of his workplace rights. [2] The Respondent opposed the application, by way of raising a jurisdictional objection that the Applicant was not dismissed. [3] The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford requires the Commission to determine a dispute about the fact of a dismissal under section 365 of the Act before the Commission can exercise powers conferred by section 368.1 It is therefore necessary to determine the jurisdictional issue raised by the Respondent before Mr Willetts’ application can proceed. [4] For the reasons outlined below, I find that Mr Willetts was not terminated on the employer’s initiative, nor did the employer’s conduct amount to constructive dismissal, and as such the application is dismissed. Hearing of the Jurisdictional Objection [5] I issued directions on 6 October 2023, for the parties to file their material. [6] Mr Willetts objected to BUMA being represented by a lawyer or paid agent under section 596 of the Act. I subsequently issued an unpublished decision to the parties on 15 November 2023 where representation was refused on the basis that this matter is not of a sufficient level of complexity to conclude that the efficiency ground in section 596(2)(a) is made out, and further, that as Mr Willetts is self-represented, it cannot be said that it would be unfair to the Respondent to reject its application in those circumstances. [2024] FWC 277 DECISION [2024] FWC 277 2 [7] The question of whether Mr Willetts was dismissed was dealt with at a hearing on 16 November 2023. As all witnesses were not able to be heard within the time allowed, the matter was listed again on 7 December 2023. Materials in support were filed by both Mr Willetts and BUMA. Mr Willetts represented himself and Mr Ian Briggs represented BUMA as internal general counsel. [8] Further to my unpublished decision refusing legal representation by a lawyer or paid agent, the parties were reminded that Mr Willetts was unrepresented and that whilst I could not provide any legal advice to Mr Willetts, I would do my best to assist him, by way of explanation of the process, wherever I could. [9] Mr Willetts gave oral evidence and was cross examined but did not call any witnesses. Mr Willetts filed witness statements from Mr Kelvin Merritt, Ms Amanda Yanner and Mr Steve Kummerfeld, though I note none of these witnesses attended the hearing and as such appropriate weight will be given with respect to these statements. [10] Ms Kate Van Kempen (General Manager – People and Culture), Ms Libby Clanchy (HR Advisor), Ms Freya Perrins (Project Manager) and Mr Bayley Wilson (Production Supervisor) provided oral evidence and were all cross examined by Mr Willetts. [11] Prior to the hearing of the matter my chambers constructed a paginated court book consisting of submissions and evidence of the parties. References to evidence are by way of the relevant page number in the court book. Observations on the Evidence [12] Much of the evidence from both parties focused on matters that, for reasons explored later in this decision are not relevant to determining the jurisdictional objection. This point was also raised with Mr Willetts at various times during the hearing. It was clear that Mr Willetts felt strongly about many of the events that occurred, however much of his evidence and cross examination of witnesses was of limited relevance to the question of whether or not Mr Willetts had been dismissed. Accordingly, though I acknowledge the significance of the evidence to the parties in this regard, I do not traverse all of it in this decision, other than where it is relevant to the question of the jurisdictional objection. Evidence of the Respondent [13] BUMA’s evidence can be summarised as follows: • On 2 August 2023, Mr Willetts tendered a letter resigning from his employment, noting that his last shift would be on 16 August 2023.2 • As Mr Willetts resigned from his employment with BUMA, the application should be dismissed. • Mr Willett’s fundamental reason for resigning was that he was unsuccessful in an application for training on the key site production excavator. • Whilst Mr Willetts’ disappointment is understandable, being unsuccessful for a contested promotional opportunity between four candidates falls well short of either a [2024] FWC 277 3 repudiation or being “forced to resign” within the meaning of section 386(1)(b) of the Act.3 • Since resigning, Mr Willetts has raised a number of other concerns relating to discrimination or unfair treatment by BUMA.4 • Prior to receiving Mr Willetts resignation letter, BUMA was unaware of any allegations of discrimination and can find no records of any formal complaints or processes being commenced.5 • BUMA submits that rather than resigning, Mr Willetts had a real alternative choice of raising his complaints, including any allegations of bullying, harassment or discrimination with BUMA, but he did not.6 • Had this occurred, BUMA could have investigated and addressed his allegations or concerns.7 • That many of the issues raised by Mr Willetts are concerned with events that occurred after Mr Willetts had resigned or relate to his employment with Downer EDI Mining Pty Ltd (Downer) and as such are not relevant to determining whether Mr Willetts’ resignation was at the employer's initiative.8 • Notwithstanding their views on the relevance of these allegations and concerns, BUMA submit that they undertook thorough investigations of matters raised by Mr Willetts after his resignation and provided him with appropriate feedback.9 Evidence of the Applicant [14] Mr Willett’s evidence can be summarised as follows: • During his employment with BMA and BUMA, he had been subjected to ongoing poor practices and unfair treatment. In particular: o In late 2019 Mr Willetts and his wife were offered what they thought were permanent positions at Meandu Mine however these turned out to be secondments. After their secondment period was served out, their contracts were extended for an additional three months, however they were not offered permanent roles and advised they would need to return to Blackwater Mine at the end of the contract and relocate at their own expense.10 o After returning to Blackwater Mine, Mr Willetts expressed his interest in a trainee digger operator position. He was not offered the role and when seeking feedback as to why he had been unsuccessful, he was told “You can’t leave and then come back expecting training”.11 o Following the tragic death of their son in 2019, neither he or his wife received appropriate support or follow-up regarding their mental health and wellbeing.12 o In or around 2021, Mr Willetts was on restricted duties and alleges that a supervisor said words to the effect of, “you need to get your injuries sorted, because that will be the deciding factor as to whether you get digger training or not.”13 o Mr Willetts was not provided opportunities to do training and hours on the hydraulic excavator (EX 48) despite receiving approval to do the training on 29 September 2021.14 [2024] FWC 277 4 o On many occasions he expressed to different supervisors that he needed progression only to be given “false hope” and told that he was “the next person in line for the excavator position.”15 Mr Willetts says this hope pushed him to work hard on the dump dozer, even though it was affecting his pre-existing work injury and his mental health.16 • Mr Willetts contends that the build-up of this ongoing poor practice by BUMA caused him extreme stress which resulted in deep depression and frustration,17 and that being deemed unsuitable for the Production Digger Operator role was the final act of unfairness coming from BUMA.18 • The reason he was given for his unsuccessful application was “poor attendance”, which Mr Willetts found “offensive considering I have never exhausted my leave entitlements, rather I have 382.18 accrued annual leave hours and still have 33.5 personal leave hours. Any personal leave taken has been for the death of my son or other legit reasons and Medical certificates have always been provided.”19 • That because of these unfair actions, he had no choice but to reluctantly resign from his long-term employment.20 • In his letter of resignation, he raised the issues above, and put forward that, with respect to his treatment, “the only thing that comes to mind is purple circle and perhaps discrimination.”21 • Mr Willetts sought an exit interview, however having received no acknowledgement of his resignation from representatives of BUMA, he wrote to Ms Van Kempen on 8 August 2023, to escalate his concerns in the hope of seeking a more responsive, diligent and ethical outcome.22 • Mr Willetts submits that this ordeal has had a negative impact on his mental health, to the degree that he suffered a mental breakdown and was subsequently referred to a psychiatrist to manage his depression and anxiety.23 Background/Timeline [15] Prior to commencing with BUMA, Mr Willetts was employed by Downer.24 Mr Willetts subsequently commenced employment with BUMA on 17 December 2021 following an asset sale and transfer of business from Downer to BUMA.25 By way of clarification, Downer and BUMA are not related bodies corporate or associated entities within the meaning of the Corporations Act 2001 or otherwise.26 [16] In or around mid-2023, Mr Willetts, along with three other employees, applied to undertake the training required for a promotion to a production excavator operator position at the Blackwater Mine.27 The BUMA’s training selection committee undertook a selection process for the role.28 [17] On 2 August 2023, Mr Willetts was informed verbally that he was unsuccessful in his application for the position, and subsequently resigned that day in writing.29 Mr Willetts resignation letter is as follows:30 “2 August 2023 To whom it may concern, [2024] FWC 277 5 As per verbal discussion held with Supervisor Allan Wust today, I hereby hand my resignation in effective immediate. My last shift with Buma will be 16 August 2023. I have served eight years with Downer / Buma, and have put a lot of loyalty and hard work into the business. Downer / Buma have preached personal development, however the only skill I have gained in eight years is a lighting plant. All the skills I have, I brought to the business. I was approved to be RPL on Loader, this did not happen. I was approved to be trained on Digger 48, this did not happen. I have raised these concerns with various Supervisors and Leadership over time, and received ongoing misleading promises. Today I was told I was unsuccessful in obtaining a Digger position, feedback being “poor attendance”. I find this offensive considering I have never exhausted my leave entitlements, rather I have 382.18 accrued annual leave hours and still have 33.5 personal leave hours. Any personal leave taken has been for the death of my son or other legit reasons. Medical certificates have always been provided. Previously, I transferred to Meandu on a six-month secondment, with the view to go permanent, only for the business to renege on this arrangement, and I was sent back to Blackwater after relocating all of our belongings. I was then told they didn’t have a permanent position any longer. As such, I was transferred back to Blackwater Mine at our own expense, where I remained a permanent employee. Upon my return, I applied for a Trainee Digger Operator position that was being advertised at the time, and was immediately told I was unsuccessful. When I followed up seeking feedback as to why I was unsuccessful, Chris Burge’s arrogant response was “You can’t leave and then come back expecting training”. This was also another kick in the guts, when I had never left the business, I was transferred to another site, with yet again false promises of being transferred to a permanent position there. In the eight years of being with your business, I have watched many people come and go, been trained up on Diggers and have left within a couple of years. I can’t understand why you don’t look after your long term, loyal people who get flogged daily doing monotonous and hard tasks. The only thing that comes to mind is purple circle and perhaps discrimination. It has taken me quite a while to determine that I have served enough time with a business who does not value me. I request an exit interview as I feel this feedback is vital for your business improvement. Regards, Douglas Willetts.” [18] After providing his letter of resignation, Mr Willetts was then on rostered days off until 9 August 2023 and was due to return on 10 August 2023. However, Mr Willetts provided a medical certificate advising he was unfit for work from 10 August 2023 to 17 August 2023, this being the remainder of his notice period.31 [19] On 4 August 2023, two days after he had tendered his resignation, Mr Willetts emailed BUMA requesting copies of the Workplace Bullying and Charter Value documents.32 These documents were subsequently provided to Mr Willetts, with the offer to have a direct conversation with Ms Van Kempen.33 [2024] FWC 277 6 [20] That same day, Mr Willetts sent correspondence to BUMA with the subject “Breach Of Various Company Policies Including Workplace Bullying”.34 The allegations contained within this correspondence relate primarily to an incident observed by Mr Willetts on 1 June 2023 involving his Supervisor Mr Denver Parker.35 [21] On 7 August 2023, Ms Clanchy, called Mr Willetts to discuss his resignation. However, Mr Willetts advised he would be discussing his complaints with Ms Van Kempen.36 [22] On 8 August, Mr Willetts sent correspondence to Ms Van Kempin with the subject line, “Exit Interview Feedback – Willetts, Douglas”.37 Within this correspondence Mr Willetts provides more details about the issues already raised and links many of these to what he considers to be breaches of relevant BUMA policies. Mr Willetts also raises specific issues relating to mental health, unlawful discrimination, and conflict of interest.38 [23] It is noted in in his oral evidence, Mr Willetts confirmed that he initiated a WorkCover claim on 9 August 2023. [24] Ms Van Kempen’s evidence confirms that after several discussions and exchanging correspondence with Mr Willetts in relation to the details of his various complaints, she reviewed the material available and spoke to Mr Willetts and a range of relevant witnesses.39 [25] On 13 October 2023, Ms Van Kempen telephoned Mr Willetts to advise him of her findings as they related to his issues and allegations.40 With respect to the issues raised in his letter of resignation, she confirmed the range of criteria considered by the decision makers, and that the indication that Mr Willetts was applying for other jobs by asking Mr Wilson to be his referee was a significant factor in the decision.41 [26] With respect to the additional matters raised in his correspondence of 4 and 8 August 2023, Mr Willetts was advised that: • The allegation that Ms Jenna McDonald had received preferential treatment was substantiated against Mr Wilson and Mr Parker, but not substantiated against Mr Chris Berge.42 • The allegation in relation to water cart and dozer skill training applications in circumstances where Mr Parker was involved in endorsing the applications and was in a personal relationship with Ms McDonald was substantiated.43 • Without minimising this preferential treatment (which is a breach of BUMA’s code of conduct), this preferential treatment was not in relation to any opportunity that Mr Willetts had also applied for, or, on Ms Van Kempen’s understanding, had interest in applying for.44 [27] On 20 October 2023 Mr Willetts again wrote to BUMA raising grievances relating to comments and actions of Ms McDonald, Mr Parker’s partner.45 Specifically, Mr Willetts alleges that Ms McDonald mentioned to another employee, that Mr Willetts was playing the "black card" with regards to his complaint. Mr Willetts described these comments as:46 “a major breach of confidentiality to disclose information relating to a pending investigation, rupturing my privacy, this act of discrimination that occurred in [2024] FWC 277 7 the workplace, directed at me, was unlawful, offensive, insulting and humiliating and can be seen as a public display of ‘racial hatred’, which is not only in breach of your company policies and BMA’s company policies, additionally it may be in breach of the ‘Racial Discrimination Act 1975’ which is federal legislation.” Relevant Legislation [28] Section 365 of the Act provides: “365 Application for the FWC to deal with a dismissal dispute If: (a) a person has been dismissed; and (b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part; the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.” [29] Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the Act) is defined in section 386(1), which 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.” Consideration [30] Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd remains relevant to the consideration of section 386(1) of the Act: “[21] In this Commission the concept 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 [2024] FWC 277 8 is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.’ [22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said: ‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’ [23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of [2024] FWC 277 9 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). [31] The Full Bench in Tavassoli also considered the legal principles pertaining to section 386(1) of the Act. Having examined what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”, the Full Bench stated:47 “Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows: (1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer. (2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.” [32] I have considered section 386(1)(a), as to whether Mr Willetts’ employment has been terminated on the initiative of the employer in the manner articulated in Tavassoli. Essentially, [2024] FWC 277 10 when judged objectively, did Mr Willetts intentionally resign from his employment. [33] Mr Willetts concedes that he resigned from his position in writing on 2 August 2023. The question then is whether he intended to do so or whether the resignation was made unintentionally or “in the heat of the moment.” [34] Whilst it is clear from Mr Willetts’ evidence that being unsuccessful for the digger training was the “final act” that forced his decision to resign, there is no evidence to suggest that this decision was unintentional.48 Mr Willetts’ resignation was not ambiguous or unclear, nor did it give any indication that it was a rushed or rash decision. In fact, Mr Willetts stated in his resignation letter:49 “It has taken me quite a while to determine that I have served enough time with a business who does not value me.” [35] Notwithstanding the above, it is reasonable to expect that if the resignation had been in any way unintended, it would have been followed by some indication of regret. It would surely also be the case that had Mr Willetts not intended to resign, he would, at some point during his many interactions with BUMA following his resignation, have sought to retract it. [36] The evidence in this matter clearly shows that Mr Willetts had many occasions to do so, but did not. Rather, his focus moved quickly to following up his requests for an exit interview and lodging a range of additional complaints. [37] On 8 August, when Mr Willetts sent correspondence to Ms Van Kempin with the subject line, “Exit Interview Feedback – Willetts, Douglas”. In this correspondence, Mr Willetts notes:50 “As per our verbal discussions, you are aware I resigned from my position as multi- skilled operator at Blackwater Mine with Buma Australia, having given my formal notice on 2 August, 2023. To date, no representative of Buma has acknowledged my resignation. For this reason, I have escalated my concerns to you in hope of seeking a more responsive, diligent and ethical outcome.” (emphasis added) [38] Within this correspondence Mr Willetts provides more details about the issues already raised in his resignation letter dated 2 August 2023 and links many of these to what he considers to be breaches of relevant BUMA policies, but at no point does Mr Willetts suggest that he did not intend to resign nor seek to retract his resignation. [39] It may well be the case that Mr Willetts was expecting that his resigning, and the additional issues he raised following his resignation would have elicited from BUMA some form of “Mea Culpa” and a request for him to stay. Again, this clearly did not occur and whilst I appreciate this may have been disappointing for Mr Willetts, it is not unlawful and does not offset in any way the fact that Mr Willetts intended to resign from his employment. [40] Having considered the above, I find that Mr Willetts intentionally resigned from his employment on 2 August 2023 by way of written resignation. [2024] FWC 277 11 [41] Having established that the test in section 386(1)(a) has not been met, I now turn to the question of whether Mr Willetts was dismissed within the meaning of section 386(1)(b) of the Act, and whether the conduct of BUMA was with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Essentially, was he forced to resign from his employment because of conduct, or a course of conduct, engaged in by BUMA. [42] In this matter, the onus is on Mr Willetts to prove that he did not resign voluntarily. To do this, he must establish that BUMA forced his resignation. [43] Though Mr Willetts concedes that he resigned from his role with BUMA, he submits that he was coerced to resign (constructive dismissal) due to the work environment and the unfair treatment he received. In consideration of whether Mr Willetts had no effective or real choice but to resign, Mr Willetts notes a number of issues as the reasons for his resignation: • Being informed on 2 August 2023 that he was not successful for the promotion/training; • Being overlooked for career progression and/or training given his years of experience; • Alleged nepotism and bullying in the work environment; • Discrimination; and • Stress relating to his work duties and requirements. [44] BUMA argues that conduct asserted to have occurred either before Mr Willetts was employed by BUMA, or after his resignation cannot be considered as conduct that was engaged in by them which forced his resignation. [45] Having considered the evidence I accept that Mr Willetts was employed by Downer from October 2015, however, from 17 December 2021, following an asset sale and transfer of business from Downer to BUMA, Mr Willetts became an employee of BUMA.51 I further accept BUMA‘s evidence that Downer and BUMA are not related bodies corporate or associated entities within the meaning of the Corporations Act 2001 or otherwise.52 [46] Whilst I appreciate Mr Willetts’ sense of frustration and disappointment spans across his time with Downer and BUMA, and that he clearly felt let down by what he perceived to be a lack of response or reaction to his resignation and to the range of issues raised following his resignation, I do accept BUMA’s evidence in this regard and find that, the conduct of BUMA, between 17 December 2021 and 2 August 2023 is the only conduct relevant for the purpose of determining whether or not Mr Willetts was forced to resign. [47] The onus on Mr Willetts is therefore to prove that actions taken by BUMA between 17 December 2021 and 2 August 2023 amounted to conduct, or a course of conduct, engaged in by them that forced his resignation. [48] To that end, after reviewing all of the evidence provided, I find the relevant alleged conduct is: [2024] FWC 277 12 • Failure to provide Mr Willetts with career development throughout his employment; • Requiring him to work on the dump dozer “doing monotonous tasks day in day out”53 and giving the Applicant “false hope” that he would be next in line for excavator training; 54 and • Not approving him for the excavator training because of preferential treatment of other candidates and the inappropriately conducted selection process. [49] BUMA contend that whilst Mr Willetts asserts that he had been a “victim of being treated unfairly whilst working with BUMA on many occasions”,55 other than not being approved for the excavator training in August 2023, he has not clearly articulated any specific events or conduct that occurred during his employment with them that could be said to be conduct that would have forced Mr Willetts to resign.56 [50] Whilst not accepting that Mr Willetts was excluded from training opportunities, BUMA submit that the provision or otherwise of training or not providing a promotion is not capable of being a repudiation of contract (or an act forcing a resignation) in circumstances where, as here, the employee did not have a legal entitlement to the relevant training or promotion.57 I accept BUMA’s argument in this regard. [51] With respect to the monotony of his role, I accept BUMA’s argument that Mr Willetts was employed to perform the role of dozer operator.58 The requirement that he work on the dozer cannot constitute a repudiation of his contract or “forcing” him to resign.59 [52] As noted by Mr Willetts, his failure to be selected for training for the excavator position was “the final act” that forced him to resign.60 I again accept BUMA’s argument that whilst Mr Willetts was disappointed at not being selected for the training, the decision was made following a merit-based process, which resulted in BUMA selecting the candidate they felt was best suited for the position.61 [53] There is no doubt that Mr Willetts disagrees that the process was fair or merit-based and much of his evidence went to this point. As stated by BUMA, rather than resigning, Mr Willetts had a real alternative choice of raising his complaints, including any allegations of bullying, harassment or discrimination with BUMA, but he did not. Had this occurred, BUMA could have investigated and addressed his allegations or concerns. [54] I acknowledge Mr Willetts evidence regarding his experience with BUMA, in particular the stress he says he experienced while operating the dump dozer and his views on perceived bias in his work environment, however I note the following in Celia O'Keefe v Ramsay Health Care Australia Pty Limited:62 “Resignation to escape a difficult or unpleasant situation in a workplace will not amount to dismissal where the employee has other options besides resignation. This is so even where the situation in a workplace is objectively difficult or unpleasant or where the options are to resign or be subject to an investigation or disciplinary process, as distinct from resign or be dismissed. Here the Applicant opted to resign to remove herself from a situation which she perceived to be unfair and from conduct she perceived to be bullying. While some of the [2024] FWC 277 13 Applicant’s concerns were valid, on balance the conduct the Applicant complains of was not such that I could be satisfied that the Applicant was forced to resign. The Applicant had options other than resignation and it cannot be said that the conduct or a course of conduct she complains about had the intended or probable effect of ending her employment. Finally, I consider that even if all the conduct described by the Applicant occurred, it is not a course of conduct that objectively, was so egregious, that it gave the Applicant no real choice but to resign. While I do not underestimate the difficulties the Applicant would have faced if she remained at work, and the adverse impact upon her of resigning from her employment with the Respondent, I do not accept that she was forced to resign by a course of conduct engaged in by the Respondent.” [55] The assessment of conduct in this matter must be viewed objectively. On balance, I do not consider any of the conduct that Mr Willetts complains of to be so egregious that it forced him to resign. [56] I now turn to the question of whether Mr Willetts had any options available to address his concerns other than resignation. [57] I note that the BUMA Australia Blackwater Mine Enterprise Agreement 2022 (the Enterprise Agreement), contains a five-step grievance procedure. For context, the grievance procedure steps provided by the Enterprise Agreement at clause 2.19.2, are as follows: 2.19.2. In the event of an Employee(s) or the Company raising a dispute or grievance arising out of this Agreement, the National Employment Standards or employment generally the following actions shall be taken. Step 1 In the event of an Employee having a grievance or dispute, the Employee shall in the first instance attempt to resolve the matter either verbally or in writing with his/her immediate supervisor, who shall respond to the matter as reasonably practicable under the circumstances. The Employee may, at their discretion, seek support from another Employee or a representative. Step 2 If the supervisor does not resolve the grievance or dispute the matter shall be committed to writing by the Employee; the dispute/grievance shall be referred to the superintendent or their representative if requested by the Employee. Step 3 If the grievance/dispute remains unresolved the matter shall be referred to the project manager and the Employee’s nominated representative, if requested by the Employee. Step 4 If the grievance/dispute remains unresolved the matter shall be referred to the general manager and the Employee’s nominated representative, if requested by the Employee. Final Step [2024] FWC 277 14 If a dispute in relation to a matter arising under this Agreement or the NES, or employment generally, is unable to be resolved at the workplace and all agreed steps for resolving it have been taken, the dispute may be referred to the FWC for resolution by mediation and/or conciliation and, if the dispute remains unresolved, by arbitration. If arbitration is necessary FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions, which are necessary to make the arbitration effective. [58] During the hearing, Mr Willetts was asked if he had accessed the procedure to raise any of his concerns. Mr Willetts stated: “In accordance with step one of the grievance process outlined in the EA, I raised my grievance concerns on numerous occasions verbally with supervisors, Denver Parker, Bayley, and attempted to resolve matters regarding task rotation because I was flogged on the tippet and this was, so that was step one. I’ve spoken to Bergo, Chris Burges, he's a Superintendent. And then. Umm, unresolved matters referred to the project manager. And that was during my resignation, I’d addressed it to her, but she didn't even respond to it. So, I put it in writing to the project manager at the final stage, and she didn't even respond.” [59] It is clear that grievance procedures were not adhered to, as Mr Willetts only raised his grievances formally in his written resignation to Ms Perrins and in subsequent letters after he gave notice. [60] I further note that Mr Willetts’ oral evidence above is inconsistent with Mr Wilson’s witness statements which states that Mr Willetts had not communicated any concerns about workplace bullying, nepotism or discrimination to him.63 [61] Evidence provided by several BUMA employees confirmed that prior to Mr Willetts’ resignation, they were not made aware of any grievances including claims of bullying, nepotism or discrimination on the basis of age or race. In particular, Ms Clanchy who had reviewed Mr Willetts’ personnel file and confirmed that she was not able to find any documents indicating that he had raised any formal complaints regarding discrimination, nepotism or bullying.64 [62] Mr Willetts’ seeming failure to clearly express his grievances and adhere to the grievance process does not weigh in favour of a finding that he had no real or effective choice but to resign as the grievance process allowed him the opportunity to formally raise his issues with BUMA. [63] In the matter of Neil Ashton v Consumer Action Law Centre [2010] FWA 9356 at [59] Commissioner Bissett relevantly observes: “It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a [2024] FWC 277 15 constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.” [64] Having considered the facts of this case, I find that Mr Willetts had real options available to him to address his concerns, but that he did not avail himself of these. [65] Considering all of the evidence and relevant case law objectively, I do not accept that BUMA engaged in conduct that left Mr Willetts no option other than to resign. Conclusion [66] Given my findings, Mr Willetts has not been dismissed within the meaning of the Act, the jurisdictional objection is upheld. [67] As a result, the application is therefore dismissed. An order to that effect will be issued separately. COMMISSIONER Appearances: D. Willetts for himself B. Willetts for the Applicant (support person) I. Briggs for the Respondent Hearing details: 2023 Brisbane 16 November 7 December Printed by authority of the Commonwealth Government Printer <PR770880> 1 [2020] FCAFC 152. 2 P.37 of the DCB – Applicant’s Resignation Letter. [2024] FWC 277 16 3 P.43 of the DCB – Applicant’s “Exit Interview Feedback” Complaint Letter. 4 P.42-44 and P.101 of the DCB - Applicant’s “Exit Interview Feedback” Complaint Letter and Respondent’s Submissions. 5 P.101 of the DCB – Respondent’s Submissions. 6 P.103 of the DCB – Respondent’s Submissions. 7 Ibid. 8 Ibid P.102. 9 P.125 of the DCB - Witness Statement of Kate Van Kempen. 10 P.18 of the DCB – Applicant’s “Exit Interview Feedback” Complaint Letter. 11 Ibid P.19. 12 Ibid P.18. 13 Ibid P.19. 14 Ibid. 15 P.25 of the DCB – Applicant’s Submissions. 16 Ibid. 17 Ibid P.25. 18 Ibid P.26. 19 P.21 of the DCB – Resignation Letter. 20 P.25 of the DCB – Applicant’s Submissions. 21 P.24 of the DCB – Resignation Letter. 22 P.17-23 of the DCB – Applicant’s “Exit Interview Feedback” Complaint Letter. 23 P.25 of the DCB – Applicant’s Submissions. 24 P.101 of the DCB – Respondent’s Submissions. 25 Ibid. 26 Ibid. 27 Ibid. 28 Ibid. 29 Ibid. 30 P.24 of the DCB – Resignation Letter. 31 P.210 and 212 of the DCB – Second Witness Statement of Libby Rae Clanchy and Medical Certificate dated 9 August 2023. 32 P.17-23 of the DCB – Applicant’s “Exit Interview Feedback” Complaint Letter. 33 P.92 and P.125 of the DCB – Form F8A and Witness Statement of Kate Van Kempen. 34 P.68-69 of the DCB – Applicant’s “Breach Of Various Company Policies Including Workplace Bullying” Complaint Letter. 35 Ibid P.68. 36 P.121 of the DCB - First Witness Statement of Libby Clanchy. 37 P.17-23 of the DCB – Applicant’s “Exit Interview Feedback” Complaint Letter. 38 Ibid. 39 P.125 of the DCB – Witness Statement of Kate Van Kempen. 40 Ibid. 41 Ibid P.125-126. 42 Ibid P.126. 43 Ibid. 44 Ibid. 45 P.70-71 of the DCB – Applicant’s Letter dated 20 October 2023. [2024] FWC 277 17 46 Ibid P.70. 47 Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 at [47]. 48 P.26 of the DCB – Applicant’s Submissions. 49 P. 24 of the DCB – Resignation Letter. 50 P.17 of the DCB – Applicant’s “Exit Interview Feedback” Complaint Letter. 51 P.101 of the DCB – Respondent’s Submissions. 52 Ibid. 53 P.31 of the DCB – Applicant’s Submissions. 54 Ibid P.25. 55 Ibid P.26. 56 P.122 of the DCB – Respondent’s Reply Submissions. 57 P.102 of the DCB – Respondent’s Submissions. 58 P.123 of the DCB – Respondent’s Reply Submissions. 59 Ibid. 60 P.26 of the DCB – Applicant’s Submissions. 61 P.123 of the DCB – Respondent’s Reply Submissions. 62 [2021] FWC 4796 at [151]. 63 P.203 of the DCB – Second Witness Statement of Bailey Wilson. 64 P.114, P.119-121, P.203 of the DCB – First Witness Statement of Freya Perrins, First Witness Statement of Libby Clanchy, Second Witness Statement of Bailey Wilson.