//
[145]
[2023] FWC 794
General information, not legal advice.
Fair Work Commission
2023-04-20
Original judgment source is linked above.
[2023] FWC 794 [Note: An appeal pursuant to s.604 (C2023/2570) was lodged against this decision.]
s.365 - General protections
Application to deal with contraventions involving dismissal
[2] The Respondent has objected to the Applicant's general protections application, which he made under s 365 of the Fair Work Act 2009 (Cth) (the Act) on 25 November 2022, on the basis the Applicant was not dismissed within the meaning of s 386 of the Act.
365 Application for the FWC to deal with a dismissal dispute
(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.
[5] The short answer to that question is that the Applicant was not 'dismissed' by the Respondent but resigned voluntarily. My detailed reasons follow.
[6] Although there is disagreement between the parties concerning the sites on which the Applicant worked and in what capacity he did so at the beginning of the employment relationship, at the relevant time he worked on the Mesa A mine site within the Respondent's Robe Valley Operations in Pannawonica, Western Australia.
[7] Whilst the Applicant provided evidence in support of his case, the Respondent relied upon the evidence of Phillip Norris, Mine Operations Manager at the Robe Valley Operations (Norris), and Iesha Simons, Injury Management Advisor for Robe Valley and Paraburdoo Operations (Simons).
[10] At the meeting on 15 August 2022, the Applicant voiced his concerns to Winsor and Farmer, expressing - in short:
a) when he had changed over from a previous grader operator on 29 April 2022, the operator had left site because of COVID-19 and the Applicant had not been advised that the grader had not been appropriately cleaned and sanitised before he operated the vehicle;
b) Winsor claimed that he had paid for the Applicant's expenses from being in isolation from his personal bank account - to avoid raising the incident with superiors;
c) the number of people in isolation within the camp impacted the risk of contracting COVID-19 again and could potentially place him back in hospital;
d) the lack of mask wearing by colleagues in the light vehicle environment notwithstanding direction from management and authorities; and
[11] The Applicant acknowledged that Winsor and Farmer were interested in him elaborating his concerns so that they could possibly assist his return to work.
Recommended to return to work after review on ... mine site but preferably a different worksite to avoid [exacerbation] of his medical conditions.[14]
... he provided a letter from Dr Varugehese who recommended that he work at a different site. He said that this was the second consultation with Dr Varugehese. He was initially seen in December 2021, however, I was not aware of this when I saw him on 24 December 2021.
From a cardiac perspective he had been seeing Doctor Nunn. He said Dr Nunn said his tachycardia is not due to anxiety. He was then referred to a cardiologist with electrophysiological interest, Dr Liu. He initially saw Dr Liu at the end of June 2022.
Dr Liu has suggested that he requires electrophysiological study and ablation. This is currently booked for 28 October 2022. He last saw Dr Lui last week.
David said he was driving home from Perth when he felt dizzy in August 2022. He felt his temperature increase and he presented to an acute care clinic in Cockburn. They gave him antacids which did not help. His friend then drove him to the emergency department at St John of God Hospital.
He said his heart was again doing "weird stuff". He was prescribed oral Amiodarone. He was on a loading dose of Amiodarone and then is currently on 200 mg daily...
Since being on the Amiodarone and his heart rate still increases. Occasionally he feels dizzy and slightly short of breath. This lasts a few minutes. He said his oxygen saturation will drop down to the 80's with an increase five minutes later. The frequency of these episodes have reduced since he has been on Amiodarone...
David has a history of tachycardia which was initially thought to be supraventricular tachycardia. I understand that later on it is believed that he has an atrial tachycardia and he is due to undergo an EP study and ablation on 28 October 2022. In view that he continues to have intermittent episodes of palpitations and shortness of breath, although reduced since commencing Amiodarone, I recommend that he remains unfit for work until the ablation is completed. It is difficult to predict the triggers of these events and if he experiences similar episodes while at work he will have to come off the machinery.
From a mental health perspective I note that his psychiatrist has recommended that he does not return to the same worksite. The psychiatrist's opinion appears to have been in place since December 2021 which had not previously been relayed to us. As these recommendations from the psychiatrist have occurred twice in the past 12 months, it suggests a permanent restriction and he will need to explore redeployment to another work site.[17]
[18] The Applicant said he attempted to contact the Respondent's management continually whilst on sick leave and particularly in October 2022, about returning to work, but his attempts were frustrated. The Applicant gives evidence that by 27 October 2022, he spoke to Norris, who purportedly promised to consult with the Respondent's injury management advisor and call the Applicant back, with a view to allowing him back on site for 1 November 2022. The Applicant stated:
Phillip Norris claims in paragraph 14 of his witness statement that I expressed frustration during the telephone call of not being able to return to work. That is correct. He also claims that he assured me that I [sic] was absolutely Rio Tinto's intention to have me return, and the conversation ended with myself and him agreeing that I would reach out to Phillip Norris to discuss the details of my return to work following my successful ablation procedure the following day. That is not correct. In actual fact, what happened was Phillip Norris said that he needed to speak to Iesha Simons as injury management advisor, in relation to allowing me to come back to work. He also said that he was 'thinking about putting me on Mesa J' and that he would get back to me after he discussed my return to work with Iesha Simons. It was never agreed between us that obligation was on me to contact him, as he claims, to discuss the details of my return to work.[18]
[20] The Applicant provided in his evidence an email he had sent to the Respondent titled 'David Hill Return to Work Update', dated 28 September 2022. The email states:
...On the 21St September, I attended an appointment with Dr Lui, my cardiologist, and he stated that he found the cause of my heart issues (From My Emergency Visit on the 10th August). He said that in his opinion my diagnosis is ATRIAL TACHYCARDIA. Dr Liu recommended that I get an EP Study and an ablation done as soon as possible. Apparently in Dr Liu's opinion the loop recorder I had implanted was set to the wrong perimeter and wasn't capturing the correct information. He has booked me at St John of God Murdoch on the 28th October 2022. In consultation with my GP (Dr Ola), Dr Liu said that it would be safe for me to operate heavy machinery with my condition on a remote mine site and he also mentioned that the medication I am taking wouldn't affect my operating ability (Amiodarone). My GP (Dr Ola) once again stated that it was recommend that I be placed at another mine site.
Also, my Psychiatrist Dr Chacko on 15th September 2022, has the same opinion as my GP and cardiologist, that I should be moved to a different mine site.[21]
a) as it relates to COVID-19, the Respondent took extensive steps to minimise the associated risks; and
[31] Norris said that he spoke to the Applicant on 27 October 2022. During that call, Norris said he:
a) indicated to the Applicant that in line with the medical advice of Dr Sim that he move sites, he had secured him an operator position at Mesa J mine, which they could discuss following his procedure; and
[37] In response to the suggestion in paragraph [15] of the Applicant's witness statement that the report of Dr Sim was in error, Simons stated:
a) Dr Sim had assessed the Applicant on 24 December 2021. Not long before this (December 2021) the Applicant had also seen Dr Varughese (his psychiatrist) who had recommended that he transfer to a different site;
b) according to the Sim Report, the Applicant had not disclosed to Dr Sim in December 2021 that his psychiatrist had recommended he transfer sites. The Sim Report referred to a letter from the Applicant's psychiatrist recommending he work at a different site, and Dr Sim simply made the comment that this was the first she had heard of the recommendation to transfer, as the Applicant had not disclosed this to her; and
c) she understood that the Applicant did not make the Respondent aware of Dr Varughese's recommendation until after his appointment with Dr Sim on 24 December 2021.
[41] The Applicant submits that he resigned on 7 November 2022 due to the following factors:
a) the Respondent was acting in a biased and prejudicial manner in refusing to accept the advice of the Applicant's specialist and general practitioner over return to work, instead favouring the converse opinion of an occupational therapist;
b) the Respondent was resisting the Applicant's attempts to return to work and was generally being unavailable and unhelpful in allowing and facilitating this process;
c) the Respondent failed to call the Applicant at the expiry of his medical certificate period as promised. The Respondent simply failed to communicate with the Applicant;
d) the Applicant was suffering financial pressure and was unable to meet his household costs and was forced into resignation partially due to financial pressure; and
e) the Applicant was concerned, with justification, that further barriers would be raised with respect to his return to work including assessment by Peter Simpson (Simpson) and the resulting refusal to allow him to exercise his workplace rights.
[42] The Applicant added that there is ample evidence that the termination of his employment was due to a course of conduct, adopted by the employer, including:
a) the Respondent has a history of failing to provide a safe work environment or address issues raised by the Applicant with respect to safety;
b) the Respondent has a long history of taking adverse action against the Applicant for exercising workplace rights, including threats to withdraw complaints if he wished to return to work;
c) the Respondent discriminated against the Applicant in refusing to facilitate contact over his return to work and in failing to implement the work clearances provided by the Applicant's specialists; and
d) the Respondent allowed the Applicant to exhaust his sick leave and failed to assist him in returning to work thereby making a resignation a financial necessity.
[44] The Respondent submitted that the question for the Commission was whether it could be said that the Applicant was forced to resign from his employment because of conduct, or a course of conduct, engaged by the Respondent.
[45] The Respondent characterises the Applicant's bases for his forced resignation in the following terms:
a) the Respondent failed to provide the Applicant with a safe work environment, either in relation to COVID-19 and/or his mental health (Safe Work Environment Failure);
b) there was a 'long history of [the Respondent] taking adverse action against the Applicant for exercising workplace rights', and/or that the Applicant was otherwise precluded from seeking redress of this adverse action if he were to remain in the Respondent's employ (Alleged Adverse Action);
c) the Respondent refused to contact the Applicant about his return to work (Alleged Refusal to Contact); and
[46] The Respondent submitted that this multiplicity of reasons stands in stark contrast to the Applicant's evidence at paragraph [29] of his witness statement, where he emphasised he was positively agitating to return to a workplace notwithstanding he felt compelled to leave because of some apparent concern for his own safety. The Respondent submitted that the Applicant had, despite the abovementioned bases for his resignation, then confined his reason for resigning to the fact that the Respondent had not permitted him to return to work.
[47] Regarding the Safe Work Environment Failure, the Respondent again submitted it was untenable for the Applicant to maintain that his concern about contracting COVID-19 was so great that he had no real choice but to resign in circumstances where he had, up until November 2022, been agitating to return to work at the mine site which he alleged was unsafe.
[48] The Respondent further submitted that any suggestion that the Respondent's workplace was not safe from COVID-19 was unsustainable without evidentiary foundation. The Respondent pressed that from the early stages of the pandemic, extensive measures had been introduced to mitigate against the risks of COVID-19. In short, the Respondent considered the Applicant's argument regarding COVID-19 was speculative and an opinion the Applicant was unqualified to give.
[51] The Respondent further submitted that where the Respondent had made clear to the Applicant that it was open to relocating him to another site, it was plainly not reasonable for the Applicant to form the view that he had no choice but to resign in light of any concerns he may have held about the work environment at Mesa A mine.
[52] The Respondent observed that the Applicant was under the impression that he was left with no choice but to resign if he was to seek redress for the supposed breaches of his workplace rights based upon a report by Simpson, the Managing Director of a private psychology company that the Respondent had engaged to assess the Applicant (BSS Report). The Respondent pressed that there was no basis for the Applicant attributing the summations of Simpson to the Respondent, particularly in the absence of any evidence of the Applicant testing his apparent concerns in this regard with the Respondent.
[53] In response to the Alleged Refusal to Contact and Alleged Failure to Assist the RTW, the Respondent argued that the evidence demonstrated that the Respondent repeatedly communicated to the Applicant an intention to have him return to work. The Respondent noted that Norris had, on several occasions, engaged with the Applicant in an encouraging manner about his return to the Robe Valley Operation, and even on the Applicant's own materials, the Applicant acknowledged the telephone call on 27 October 2022.
[54] The Respondent submitted that the Applicant's contention that his email dated 20 October 2022 was 'ignored', misrepresented the nature of the exchanges between the Applicant and Norris. The Applicant's email was enquiring about the plan for his return to work, and on the Applicant's own evidence, said the Respondent, Norris spoke to the Applicant about such return verbally, following on from the email.
[55] The Respondent submitted that the last exchange between it and the Applicant prior to the Resignation Letter being prepared was a conversation between the Applicant and Norris in which Norris indicated they would discuss the details of the Applicant's return to work further, after he recovered from his ablation procedure.
[56] It was argued that Norris' evidence should be preferred to the evidence of the Applicant, both in light of the Applicant's confused recollection of conversations, but also having regard to the fact that the broader context of discussions supports Norris' account. The Respondent submitted that once it is accepted that Norris asked the Applicant to contact him following his ablation procedure, any criticism of the Respondent's failure to contact the Applicant between 29 October 2022 and 7 November 2022 is exposed as hollow. The Respondent observed that in any event, there was no evidence of any attempt on the part of the Applicant to contact or otherwise follow up with the Respondent during this period, with the consequence that it was not reasonable for the Applicant to form the view that some absence of communication in a ten-day window following his surgery left him with no choice but to resign.
[58] In respect of the Applicant's economic circumstances, the Respondent contended there was no evidence that the Applicant ever broached the issued with the Respondent, including by requesting any form of special leave of salary continuance. If anything, submitted the Respondent, it had, through its prior conduct of recrediting leave to the Applicant, demonstrated a flexibility and understanding in its approach to the Applicant's circumstances.
[59] Moreover, the Respondent submitted that following the receipt of the Resignation Letter, it responded in writing to the Applicant's solicitor, advising that:
a) the Respondent did not agree that the Applicant had not alternative but to resign;
b) the Respondent 'would like to give [the Applicant] the opportunity to rescind his resignation'; and
c) the Respondent would be prepared 'to meet with [the Applicant] and work through next steps and his return to work'.
[60] The Respondent submitted that it received no reply to its response to the Resignation Letter from either the Applicant or his solicitor.
[61] Central to the consideration in this case is the operation of s 386(1) of the Act.
[62] Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2, which concerns unfair dismissal. However, that section is relevant for present circumstances. The word 'dismissed' is defined in s 12 of the Act as having adopted the meaning in s 386. Section 386 reads:
(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.
[63] There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.
[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 probable 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.[61]
[65] While a summary of the position under s 386(1) was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan (City of Sydney RSL) gave further consideration to the operation of s 386(1)(a), expressing:
[10] It seems clear...that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:
". . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, 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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ''termination of employment.''" (references omitted)[62]
3.2 Termination at the Respondent's initiative and a forced resignation
[68] It is uncontroversial that the Applicant resigned; the controversary sits with whether the Applicant was dismissed.
[69] At the hearing, the Applicant pressed that he relied upon both elements of s 386(1) of the Act. However, for the most part, the second element of s 386(1) was the one which was predominately addressed by the parties.
[71] I will turn to the specifics of Norris' and Simons' evidence shortly, but first it is necessary to address the conflicting medical opinions and the Applicant's assertion about the same. The Applicant argued that the Respondent acted in a biased and prejudicial manner in refusing to accept the advice of the Applicant's specialist and general practitioner over that of its occupational therapist, concerning his return to work.
David Hill has been found to have sustained atrial tachycardia resulting in symptoms of palpitations. This has responded to medical therapy. At review on the 21.09l.2022 he was improving and I see no reason why he can not resume full duties after the 28.09.2022.[69]
[74] Dr Liu held the view on 21 September 2022 that he saw no reason why the Applicant could not resume full duties. However, Dr Sim reviewed the Applicant on 29 September 2022. Briefly stated, Dr Sim:
a) observed that the Applicant had been seen by Dr Nunn;
b) referred to the Applicant initially seeing Dr Liu at the end of June 2022;
c) acknowledged that Dr Liu suggested the Applicant requires electrophysiological study and ablation, which was booked for 28 October 2022; and
d) reported that notwithstanding the intervention of Amiodarone, the Applicant expressed that his heart rate still increases, he occasionally he feels dizzy and slightly short of breath, his oxygen saturation will drop down to the 80s with an increase five minutes later, but that the frequency of the episodes had reduced since he had been on Amiodarone.
[75] Critical to Dr Sim's assessment was that notwithstanding the introduction of the Amiodarone, the Applicant had continued to be symptomatic. This factor clearly had relevance to Dr Sim's assessment. The Sim Report of course reads:
In view that he continues to have intermittent episodes of palpitations and shortness of breath, although reduced since commencing Amiodarone, I recommend that he remains unfit for work until the ablation is completed. It is difficult to predict the triggers of these events and if he experiences similar episodes while at work he will have to come off the machinery.[71]
[76] The Sim Report was the most contemporaneous medial assessment before Norris and Simons and had been undertaken at a time when the Applicant was medicated on Amiodarone. In my view, the reliance by Norris and Simons on the Sim Report was not in any way indicative of prejudice or bias against the Applicant. It was a sensibly held position considering the contemporaneous nature of the assessment and its identification that the Applicant remained symptomatic notwithstanding medication and would need to come off machinery if similar episodes [of symptoms] ensued. Further, the assessment of Dr Sim and the view held by Norris was not that the Applicant was precluded from ever returning to work. The immediate threshold issue was the successful completion of the Applicant's ablation procedure on 28 October 2022.
[77] The Applicant levels against the Respondent the assertion that it was resisting his attempts to return to work and was generally being unavailable and unhelpful in allowing and facilitating this process. The assertion cannot be sustained on the evidence. I have found that Norris spoke to the Applicant on 12 October 2022 and 27 October 2022 regarding his return to work. Regarding the discussions held on 27 October 2022, I have found that Norris:
a) indicated to the Applicant that, in line with the medical advice of Dr Sim that he move sites, he had secured him an operator position at Mesa J mine, which they could discuss following his procedure; and
[78] It is therefore unreasonable for the Applicant to conclude on the 27 October 2022 that he had no capacity to earn an income or that he was forced to resign from his role when he had been in recent communication with Norris about being allowed back on site, and all indications were that following the successful completion of the ablation - a return to a different mine site would be facilitated.
[79] In support of the contention that he was forced to resign, the Applicant relied upon an assertion that the Respondent failed to call the Applicant at the expiry of his medical certificate period as promised, and the Respondent had simply failed to communicate with the Applicant. Whilst it is apparent that it was the Applicant who called Norris on 12 October and 27 October 2022, it was Simons who sent the Applicant the Sim Report on 11 October 2022 and telephoned him. Further, Simons gives evidence that she informed the Applicant that neither her nor Norris were able to approve the Applicant's return to work until after the ablation procedure. Insofar as the Applicant or Simons is to be believed in this respect, for reasons already explained, I prefer the evidence of Simons. Further, whilst it was more likely than not that the Respondent did not call the Applicant until after the expiry of his medical certificate, it is not the case that the Respondent had simply failed to communicate with the Applicant.
[80] Understandably in circumstances where the Applicant had exhausted all paid leave, the Applicant was purportedly suffering financial pressure and was unable to meet his household costs. However, it is not the case that the Respondent was in any sense of the word responsible for the Applicant's heart condition or for that matter the Applicant's financial stability. The Applicant suffered, from all accounts, from a non-work related illness and was considered medically unfit by his own general practitioner for the period of 17 August 2022 until 28 September 2022. The exhaustion of any paid leave entitlement during this period was not something that the Respondent had inflicted upon the Applicant.
[81] Further, whilst the Respondent considered the Applicant unfit to return to work until such time as the ablation procedure had been performed, this was a reasonable stance to adopt. Any financial pressure encountered by the Applicant was inevitably due to his own agency. Further, it was evident that in circumstances of past hardship, where paid leave balances had been exhausted, the Respondent had credited to the Applicant leave used by the Applicant (see the period of 6 October 2021 until 23 December 2021). Whilst the Applicant was aware of this approach given the letter of 17 April 2022 from Winsor to the Applicant's representative, a Mr Mullally, he did not explore or otherwise raise with the Respondent whether the Respondent was positioned to assist him given the financial pressures he was facing.
[82] The Applicant spoke of there being ample evidence that his dismissal was due, in part, to the Respondent having a history of failing to provide a safe work environment or address issues raised by the Applicant with respect to safety. As to whether the work environment was unsafe on the basis that the Applicant contracted COVID-19 whilst working within it, neither the Commission nor the parties are positioned to draw that conclusion. To do so would be to proffer speculative opinion removed from any sense of objectivity.
[83] However, I have found that when the Applicant expressed concerns about the Respondent's response to, and management of, COVID-19, Winsor and Farmer were receptive to hearing the Applicant's concerns, to assist his return to work - a point the Applicant, appropriately, admitted. Further, given the Applicant had not been in the workplace post the discussion with Farmer and Winsor, the Respondent had not been provided an opportunity to remedy any perceived safety shortcomings the Applicant may have held in this respect.
[84] While the Applicant's safety concerns extended to his mental health, the evidence is such that the Applicant had been offered psychological counselling, had received the recrediting of leave when unfit to work for a period in 2021, and that the Respondent had taken seriously (as it should) the recommendation from the Applicant's doctors that a move to another mine site was warranted.
[87] At paragraph [7] of the Applicant's second witness statement, he states:
[o]n 27 October 2022, I felt that notwithstanding no job offer I needed to resign for the reasons contained in my earlier statement. I knew that I could obtain work elsewhere and I had no faith at this point in Rio Tinto acting in a lawful manner towards me in the workplace, or allowing me back on site given the failure of Phil Norris to get me back.
[90] Counsel for the Respondent observed that after the application for the order of production of documents (documents which showed that the Applicant had a job offer from BHP on the 28 October 2022), the Applicant changed his story about the date of his resignation, citing 27 October 2022 as the date he advised his lawyers to issue his resignation. Counsel observed that this date emerged for the first time in the evidence after the perhaps unanticipated request for production of documents required the Applicant to disclose an offer of employment from BHP, which was open for acceptance for only two days.
[91] The Respondent argued that the Applicant's resignation and the multiplicity of reasons proffered had occurred in a context where around the date of his resignation he had plainly secured an alternative source of work.
[92] I have found that the Applicant elected to voluntarily resign from his employment and did so after having made the decision to interview with another employer. Whilst appreciative that the Applicant perceived multiple shortcomings of the Respondent, including its alleged failure to provide a safe work environment, alleged taking of adverse action and discrimination, alleged refusal to contact the Applicant regarding his return to work and assist in that process, I am of the view that the Applicant's perception of such shortcomings did not equate to the Respondent engaging in a course of conduct that negated all choice for the Applicant, such that he was forced to resign.
[93] Furthermore, I do not consider it to be the case that the Applicant resigned in the heat of the moment such that his resignation could not be characterised as voluntary, because he was in a state of emotional distress or confusion. The Applicant had advised his lawyers to notify the Respondent of his resignation in circumstances where he was awaiting news of whether he had secured work with another employer - this does not strike of reactivity but rather a calculated move to ensure future employment. Notwithstanding that, Norris and Simons were working aligned to the agenda of returning the Applicant to an alternative mine site and back to work.
[94] Whilst much was made at hearing that the Respondent had not offered the Applicant in writing a position at another mine site, Norris was firm in his evidence that he had consulted with the other mine site and had secured a position for the Applicant there. As noted, I prefer the evidence of Norris over that of the Applicant for reasons already cited.
[96] On all the facts and evidence before the Commission, I have concluded that it was quite clearly the discretion of the resigning employee, the Applicant, which gave rise to the termination of employment. There was not a termination of employment at the initiative of the employer and the conduct of the Respondent was not such that there was an intention of bringing the employment to an end or that termination of the employment was the probable result of its conduct such that the Applicant had no effective or real choice but to resign.
[1] Witness Statement of David Hill dated 13 March 2023, [9] (Hill Statement).
[4] Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152; (2020) 279 FCR 591, 603 [54], special leave to appeal declined in [2021] HCASL 37.
[16] Digital Hearing Book, 25-8 (DHB).
[25] Reply Statement of Phillip Norris dated 20 March 2023, [7] (Norris Reply Statement).
[30] Witness Statement of Phillip Norris dated 3 March 2023, [10]-[11], annexures PN-3, PN-4 (Norris Statement).
[32] Norris Reply Statement (n 25) [11(a)].
[44] Norris Reply Statement (n 25) [13], annexure PN-10.
[45] Reply Statement of Iesha Simons dated 20 March 2023, [6] (Simons Reply Statement).
[56] Applicant's Outline of Submissions, [17].
[62] (2018) 273 IR 126, 129-30 [10] - [11].
[63] [1995] IRCA 625; (1995) 62 IR 200 (Mohazab).
[64] [2016] FCAFC 160; (2016) 262 IR 221, 228 [23].
[66] Norris Reply Statement (n 25) [11(a)], [11(b)], [12(a)]; Simons Reply Statement (n 45) annexures IS-1, IS-2.
[67] Hill Statement (n 1) annexure DH-1.
[72] Norris Reply Statement (n 25) [11(c)].
[73] Hill Statement (n 1) annexure DH-7.
[75] Second Statement of David Hill in response to application for production of document dated 21 March 2023, [3] (Second Hill Statement).
[78] Second Hill Statement (n 75) [8].
[80] O'Meara v Stanley Works Pty Ltd (Australian Industrial Relations Commission, Giudice J, Watson VP and Commissioner Cribb, 11 August 2006) [23] (O'Meara).
[81] Australian Hearing v Peary (2009) 185 IR 359, 367 [30].
[83] Doumit v ABB Engineering Construction Pty Ltd (Australian Industrial Relations Commission, Munro J, Duncan DP and Commissioner Merriman, 9 December 1996).
Printed by authority of the Commonwealth Government Printer
David Hill
Pilbara Iron Company Services Pty Ltd [2023] FWC 794
(2017) 271 IR 245
(2018) 273 IR 126
(1995) 62 IR 200
(2020) 279 FCR 591
(2016) 262 IR 221
(2009) 185 IR 359