Fair Work Act 2009

s.394 - Unfair dismissal

Application for an unfair dismissal remedy - jurisdictional objection - no dismissal - resignation

• [1] Mr Piakis was employed by Yarra Trams for more than 31 years, until his employment ended on 19 July 2021. He lodged an application for an unfair dismissal remedy on 28 July 2021.

• [2] Yarra Trams has raised an objection to Mr Piakis' application. It says that Mr Piakis resigned and was not dismissed by Yarra Trams. Mr Piakis acknowledges that he resigned but says that he had no choice but to do so.

• [3] This objection needs to be dealt with separately and before there can be any consideration of the merits of Mr Piakis' application. That is because only a person who has been dismissed is able to make an unfair dismissal application.[1]

• [4] For the reasons set out below, I have concluded that Mr Piakis' employment ended by his decision to resign, and not from any conduct of Yarra Trams. Because he was not dismissed, he is not able to make an unfair dismissal application, and the Commission cannot deal with the merits or otherwise of his application.

• [5] In the early evening of 6 July 2021, around 6.50pm, an incident occurred involving Mr Piakis whilst he was at work as a tram driver. The same evening, he was suspended pending an investigation into the incident.

• [6] By letter dated 8 July[2] Mr Piakis was informed that there would be an investigation into specified allegations of unsafe driving behaviour, and that the person conducting the investigation, Ms Attard, would meet with him at 1.30pm on 8 July 2021 so that he could respond to them. The letter advised that the investigator would consider whether, if substantiated, the conduct constituted serious misconduct.

• [7] On 8 July 2021, Mr Piakis attended the meeting with Ms Attard and a Mr Foudoulis. Mr Antonopoulos, the depot union delegate also attended, representing Mr Piakis. Mr Piakis had prepared a written response in which he detailed his account of the incident.[3]

• [8] On 9 July, he was given a letter informing him that the allegations against him had been found to be substantiated.[4] The letter stated that he had been found to have engaged in serious misconduct, and that the matter had been referred to Mr Sheikh, the Manager of Lines, Malvern to consider. Also on 9 July 2021, he was sent a letter from Mr Sheikh enclosing a copy of the findings of the investigation and advising that Yarra Trams was considering taking disciplinary action against him, up to and including termination of his employment. Mr Piakis was directed to attend a meeting with Mr Sheikh on 12 July 2021, at which he would be invited to explain why his employment should not be terminated.

• [9] Mr Piakis was then on personal leave from 11 July until 17 July 2021, and the meeting was rescheduled to 19 July. The meeting was attended by Mr Piakis, Ms Grano (the Manager of the Preston Depot), Ms Attard (who was requested to take detailed notes) and Mr Tarik Koc from the union. Notes of part of the meeting were produced, and whilst Mr Piakis was suspicious about the level of detail they contained as he did not recall Ms Attard taking the notes, he did not dispute their accuracy.[5]

• [10] At the meeting, Mr Piakis read from a prepared statement, which included that he felt the investigation was flawed, and rushed, prejudiced and pre-determined. As a result, he believed he had been treated unfairly, discriminated against and victimised and was suffering a great deal of distress and mental anguish.[6] After Mr Piakis read the statement, Ms Grano requested an adjournment so that she could consider the information he had provided. Mr Piakis contends that the information he provided and the concerns he raised were not considered. Ms Grano's evidence was that during the break, she considered what had been put and decided to terminate Mr Piakis' employment. When the meeting resumed, Ms Grano advised Mr Piakis of the decision and stated that there was "no alternative but to terminate [his] employment with Yarra Trams". At this point Mr Koc interjected and said words to the effect "I need to interrupt here. You haven't terminated him yet, but I want to propose something". Mr Koc then proposed alternatives to termination, such as suspension or reduced pay, which Ms Grano considered and rejected. Her evidence was that Mr Piakis had not acknowledged the seriousness of the incident, and that a lesser sanction would not be adequate.

• [11] At about 11:09 am Mr Koc asked for a break so that he could speak with Mr Piakis. The meeting then adjourned for about 10 minutes.

• [12] When the meeting resumed Mr Koc said: "Look Alex has something to say before we move forward. We know the direction this is going, we understand the direction this is going. So I'm just gonna leave it to Alex to say what he wants to say". Mr Piakis then said words to the effect "I just want to ask if I can be allowed to resign instead of being terminated. So it does not impact my future employment prospects".

• [13] Ms Grano said she would agree to this, and that he would then get his lifetime free travel pass, as would his wife, and Mr Piakis said, "it will also protect my future employment". Mr Piakis was told Yarra Trams would accept his resignation in writing but explained that this meant he would not get 5 weeks' notice. The meeting ended at 11.27am.

• [14] The same day, Mr Piakis provided a written letter of resignation, stating that he wished to cease employment from Yarra trams effective immediately, and to "consider this my resignation letter"[7].

• [15] Mr Piakis loved his position at Yarra Trams and he did not go to the meeting with any intention to resign.[8] He resigned as he believed that the investigation was so flawed and prejudiced that his employment was no longer tenable. He felt that the company sought to force him out of his job by any means necessary. He decided to resign rather than being dismissed, as this would prevent him from obtaining the free travel pass he had worked 31 years to achieve, and so that his employment record would not be tarnished.

• [16] He was provided with a statement of service[9], which included that he "has been a loyal employee throughout his 31-year tenure and is passionate about creating a safe environment for himself and others." Yarra Trams submits that providing this statement is consistent with a resignation rather than a dismissal and provided a benefit to the Applicant in future attempts to secure employment.

• [17] Mr Piakis reconsidered his decision the next day, and then sought legal advice, leading to his application for an unfair dismissal being lodged on 28 July 2021.

• [18] In some circumstances a person who resigns from their employment, can still be found to have been dismissed by their employer. That is when "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".[10]

• [19] Previous cases have considered what is meant by a 'forced resignation'. For example, it has been found that an employer who said to an employee "resign or we'll call in the police"[11] was not a real choice and was, really, a termination of employment by the employer.

• [20] A critical element is whether, considered objectively, the employer's conduct was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. It is the employer's conduct that is critical.[12]

• [21] There is another series of cases where a resignation may not be effective to terminate the employment, where an employee resigns in the 'heat of the moment'.[13]

• [22] The onus to prove that a resignation was not voluntary is with the applicant.

• [23] The case of Cozaris v Emirates[14] has some similarities with this case. Ms Cozaris was advised in a conference call that Emirates had decided to terminate her employment, following an assessment as to whether she would be able to return to work following a non-work-related injury. Following the call, and after speaking with her union representative, Ms Cozaris resigned. Ms Cozaris submitted that her decision to resign, whilst having some perceived benefits, was made because she had no alternative as she would have had her employment terminated anyway. Deputy President Gooley found that Ms Cozaris elected to resign rather than have Emirates terminate her employment, and that she was not forced to resign by any conduct of Emirates.[15]

• [24] In her decision, the Deputy President summarised several other cases considering whether there had been a 'forced resignation'.

"[26] Ms Cozaris relied upon the decision of the Full Bench in O'Meara v Stanley Works Pty Ltd.[16]

[27] In that decision the Full Bench considered the authorities and concluded that there must 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 indirectly or consequentially in the termination of the employment."

[28] The Full Bench in Bruce v Fingal Glen Pty Ltd (in liq)[17] said "although it is an "important feature" of constructive dismissal, it is not sufficient that "the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee." There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. ...

[32] In Knight v Wattyl Australia Pty Ltd[18] Commissioner Deegan considered whether a resignation was a dismissal under the Workplace Relations Act 1996. It provided that a resignation of an employee is taken to constitute the termination of employment at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employer did not resign voluntarily but was forced to do so because of conduct or a course of conduct engaged in by the employer.

[33] Mr Knight was informed that a decision had been made to terminate his employment at which point Mr Knight's representative asked if it were possible to negotiate a demotion or some other outcome, which was rejected. His representative then asked about resignation and Wattyl's representative said it was totally up to Mr Knight. There was then a private conversation between Mr Knight and his representative and Mr Knight resigned. The next day Mr Knight sent Wattyl an email advising that he wished to retract his resignation and that was not accepted.

[34] Mr Knight, in that matter, accepted that he was not forced to resign by any action of the employer. Commissioner Deegan found that while "the evidence shows the applicant decided to resign as a direct consequence of the decision taken by the employer to terminate his employment, his decision was not "forced" upon him by the employer. The applicant chose to resign, on the advice of his union representative, in order not to have the "stigma" of having been terminated by his employer for sending and receiving and storing inappropriate emails. He took his decision after a private discussion with his union representative. The matter of resignation was not raised, let alone proposed by the employer. Their interest was in the investigation and the decision to terminate his employment that had resulted from that investigation. They clearly informed the applicant that any decision that he wished to make concerning a resignation was entirely a matter for him and they had no wish to even be a party to any discussion." Commissioner Deegan concluded that he had not been forced to resign.

[35] In Karandinas v Monash Health[19] Mr Karandinas participated in a disciplinary meeting where Monash advised him, at the conclusion of the meeting that the only course open to it was to terminate his employment. Mr Karandinas had a private discussion with his union representative and the representative proposed to Mr Karandinas that he resign his employment. His representative said that he had to persuade him to resign and he did so because he saw resignation as a way of saving Mr Karandinas from the difficulties associated with trying to find employment if he had been dismissed from his employment. As a result, Mr Karandinas orally resigned at the meeting. No representative of Monash had told Mr Karandinas that he needed to resign and if he didn't he would be fired. In fact no-one from Monash raised resignation. Commissioner Ryan found Mr Karandinas was not forced to resign as he had freely decided on the advice of his union organiser to resign.

[36] In Ivos v Queensland Property Investments Pty Ltd[20], Mr Ivos participated in a disciplinary process and was advised that the company had decided to terminate his employment and that it would be a summary dismissal. Mr Ivos then met privately with his union representative who asked him if he would prefer to resign as she thought it would assist on his resume when he looked for future employment. Having obtained his agreement, the representative then approached the company and asked if he could resign and get paid in lieu of notice. The company agreed. The resignation letter was prepared by the union but Mr Ivos read it and signed it. Mr Ivos accepted that he was not forced to resign by anyone. Mr Ivos reconsidered his decision that night and said that he wasn't in his right state of mind when he signed the documents.

[37] Commissioner Jones accepted that the company had decided to terminate the employment but before that decision could be implemented the organiser intervened. As a result, the company agreed not to give effect to its decision to terminate Mr Ivos and he resigned. Commissioner Jones said this was a "novus actus interveniens". She found that there was no action by the employer intended or which would have the probable result of ending the employment relationship. She found that there was no termination at the initiative of the employer. She was satisfied that Mr Ivos was not forced to resign. His decision had been made freely and in private with his representative."

• [25] Mr Piakis relied on a Full Bench decision in Australian Hearing v Peary[21] to support his case. In that case an appeal against a decision that an employee had been forced to resign was dismissed. The case involved very different facts and circumstances to those faced by Mr Piakis. The Commission found that the employer in that case had engaged in various conduct, the cumulative effect of which was to make the employee's situation so insufferable as to make her continued employment untenable, and that her resignation was the probable result of its conduct. The employer's conduct included: failing to return the employee to the position she was employed for; requiring her to remain at a different location and perform work that was unsatisfactory; and having been provided with medical evidence that the employee had suffered major depression, required her to respond to various allegations immediately on her return to work after a month's absence on sick leave which created unnecessary stress. This conduct led the employee to resign in a very hasty response to a prompt by her employer.

• [26] Mr Piakis acknowledged that the option of resigning was raised, not by Yarra Trams, but by his representative. He acknowledges that he decided to resign and did not give evidence that he was either forced or coerced by Yarra Trams to do so.

• [27] Although Mr Piakis may have genuinely believed that Yarra Trams had conducted a flawed investigation with a pre-determined outcome to terminate his employment, that does not mean that his resignation was forced.

• [28] Whilst Yarra Trams had told Mr Piakis that it had decided to terminate his employment, Mr Piakis made the decision, having taken advice from his representative, that it was better to resign rather than to be dismissed. He made this decision so that his future employment prospects would not be tainted by being dismissed, and so that he could obtain a free travel pass, which he would not have been entitled to had Yarra Trams dismissed him.

• [29] Similar to several previous decisions, including those discussed above, whilst Yarra Trams had decided to terminate Mr Piakis' employment, his decision to resign resulted in the company agreeing not to give effect to its decision. There was no conduct of Yarra Trams that, considered objectively, was such that either resignation was the probable result or that Mr Piakis had no effective or real choice but to resign.

• [30] The case of Australian Hearing v Peary is quite different to Mr Piakis' situation. Whilst there is no doubt Ms Piakis found the process stressful and distressing, the unchallenged evidence of Ms Grano was that he was not distressed during the meeting on 19 July, and Mr Piakis' evidence was that he understood the effect of asking to resign rather than being dismissed. There was no evidence or submission that his resignation was made in the heat of the moment or when he was in a state of stress or confusion such that he wasn't conveying a real intention to resign.

• [31] Mr Piakis made a further written submission after the hearing, in which he says that when he went to the meeting on 19 April, he was not fully aware of his rights, and decided to resign based on what he claims to be wrong advice from his representative. Mr Piakis says that had he known he had a right to appeal the company's decision, it would have been very different. However, Mr Piakis gave no evidence as to the nature of the advice he received, and it seems to me that in circumstances where an employee faces being dismissed, advice that resigning is a better option, is often good advice. Mr Piakis agreed that "at the time, an employment record without the stain of misconduct seemed like the only option"[22].

• [32] Further, although the enterprise agreement that applied requires that where a dismissal takes place, the employer is obliged to inform the employee of their appeal rights, this obligation did not arise. That is because before the company acted on its decision to terminate his employment, Mr Piakis resigned.

• [33] Mr Piakis submitted that what he considers to be the shortcomings of the investigation, and the fact that it was rushed, was done to confuse him and deny him the opportunity to properly consider the facts, understand his rights, and seek legal advice. However, there is no evidence to support this, and whilst the investigation was conducted quickly, there was more than a week from when Mr Piakis was informed of the outcome of the investigation to when the meeting occurred and he resigned. Whilst Mr Piakis was on sick leave for some of this time, there was no medical evidence provided or other evidence that Mr Piakis was unable to obtain advice or consider his options. Throughout the process he was represented by his union.

• [34] Whilst there may not have been any attractive options before Mr Piakis, that is not the same as being forced to resign. Choosing between a rock and a hard place is still a choice. For example, he could have allowed the dismissal to occur and then challenged the dismissal, including the quality of the investigation.

• [35] There is no doubt that Mr Piakis had a very long period of service and is rightfully proud of his loyal service and commitment to safety throughout his career with Yarra Trams. However, as I have found that Mr Piakis was not forced to resign, he was therefore not dismissed, and unable to make an unfair dismissal application. An Order will be separately issued.

[1] Fair Work Act 2009 (Cth), s.385(a).

[10] s.386(1).

[11] Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; [1995] 62 IR 200.

[12] Bupa v Tavassoli [2017] FWCFB 3941 at [47].

[14] [2016] FWC 2596. An appeal against this decision was dismissed; see [2016] FWCFB 5256.

[16] PR973462.

[17] [2013] FWCFB 5279.

[18] PR974876.

[19] [2015] FWC 5348.

[20] [2013] FWC 1588.

[21] [2009] AIRCFB 680.

[22] Supplementary submission of the Applicant, 1 October 2021.

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