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[2020] FWC 3183
respondent. Applicant's unfair dismissal application dismissed. No employer-initiated dismissal found and statutory notice requirement for transfer not met by the Respondent; prior service counted but...
The Commission held that a PowerPoint slide shown around the time of a business transfer did not meet the statutory requirement for clear written notice that prior service would not be recognised, so the employee's prior service counted and she was eligible to bring an unfair dismissal claim. However, on the facts the Commission found the employer did not dismiss the employee. Instead, the Commission found that the employee's text declining a meeting and not attending work was the act that ended the employment. The unfair dismissal application was dismissed.
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This is an unfair dismissal application heard by Deputy President Barclay in the Fair Work Commission. The Applicant, Ms Erlinda Bravo-Crowe, had worked as a casual cleaner at the Tidal Waters hotel since 6 October 2015 under a previous operator (referred to as Eric Bennett). The Respondent (Shachaya Group Pty Ltd), through its director Dr Anton Wiesmann, began operating the hotel in October 2019 (agency arrangement from 10 October 2019; purchase later finalised). A slide titled "Employment Transition" identified 11 October 2019 as the transition date and stated "All Employment Terminated" with mention of new employment processes and probation (Exhibit R5) [6], [15].
On 11 November 2019 the Applicant's husband, Mr Crowe, attended the workplace to raise underpayment issues. A disputed conversation followed at reception about pay and the award. Mr Crowe says that Dr Wiesmann became angry and told the receptionist to "take Erlinda off the roster" (he says this was effectively a sacking). The Applicant later replied to a meeting invitation with a text stating "we wont be coming to any meeting he sacked linda" and did not attend the meeting or subsequent rostered work [23]–[29]. A later Tagalog text from another employee said "Anton says you can have your job back" (Respondent said he was unaware of that message) [29].
Two preliminary legal questions arose: (1) whether the Applicant satisfied the minimum employment period required to bring an unfair dismissal claim given the transfer of business and s 384(2)(b) of the Fair Work Act 2009; and (2) whether the Respondent had in fact dismissed the Applicant (termination at the initiative of the employer). Deputy President Barclay found that the Respondent had not given the "clear written notice" required by s 384(2)(b)(iii), therefore prior service counted and the Applicant was protected from unfair dismissal [19], [22]. However, on the facts and credibility findings the Commission concluded the Respondent did not dismiss the Applicant; rather the Applicant's own text declining the meeting and failure to attend was the decisive act that ended the employment relationship [43], [47]. The unfair dismissal application was dismissed [50].
Two linked legal analyses drove the decision.
Transfer-of-business notice (s 384(2)(b)(iii)): The Fair Work Act allows an incoming employer, in certain transfer-of-business situations, to exclude prior service from counting for the minimum employment period, but only if the incoming employer "told the employee in writing before the new employment started" that prior service would not be recognised. The Commissioner required a "clear written notice to the effect that the Applicant's prior employment will not be recognised" (explicit language used at [19]). The only document in writing relied on by the Respondent was a PowerPoint slide shown in an information session which referenced "Transition Date 11 October 2019" and "All Employment Terminated" [15]. The Commissioner found that the slide and the informal/town-hall context in which it was presented did not meet the statutory standard of clear written notice; the meeting was not compulsory and the slide alone did not substitute for the statutory written notification envisaged by Parliament [19]–[21]. Accordingly, prior service counted and statutory protection attached ([22]).
Whether there was employer-initiated dismissal: The Commission applied settled principles about when an employer's conduct amounts to termination at the employer's initiative. These principles were recited from Full Bench authority (summarised at [45]) and require objective analysis of whether employer conduct was intended to, or had the probable result of, bringing the employment to an end. The Commissioner assessed credibility of witnesses (finding Mr Crowe less reliable and Mr Wiesmann more reliable) and accepted the receptionist Ms Curran's account that she did not hear an instruction to remove the Applicant from the roster [35]–[42]. The Commissioner concluded Mr Wiesmann did not tell Mr Crowe to take the Applicant off the roster and, further, that even if such words had been spoken, removal from a roster in itself does not inevitably amount to employer-initiated termination [43], [44], [46]. Crucially, the Commissioner identified the Applicant's text message declining the meeting and her failure to attend as the act which "directly and consequentially led to termination of employment", in other words, the decisive act was the Applicant's, not the employer's [47]. Consequently, there was no employer-initiated dismissal and the unfair dismissal claim failed [49]–[50].
Before this decision: the statutory test in s 384(2)(b)(iii) was understood to require a written pre-commencement notice to exclude prior service. Authorities such as Gregory v Shaver Shop (relied upon and explicitly adopted by the Commissioner at [20]) emphasised that Parliament intended clarity so employees can assess their rights and redundancy entitlements.
After this decision: the practical confirmation in this case is that an informal slide or presentation at a non-compulsory meeting will not necessarily satisfy the s 384(2)(b)(iii) written-notice requirement. The decision reinforces a formal approach: employers should provide explicit, individual written notification before new employment starts if they intend to exclude prior service when taking over a business. The decision also reiterates established Full Bench principles on 'termination at the initiative of the employer', the need for objective assessment of whether employer conduct was the operative cause of the end of employment (the Mohazab suite of authorities as summarised in Barkla, which the Commissioner follows at [45]).
Paragraph [19]: "The requirement for notice is clear written notice to the effect that the Applicants prior employment will not be recognised."
Plain-English: The law needs a clear, written statement saying "we will not count your previous service". A slide or vague wording will not do.
Paragraph [22]: "As the Respondent failed to comply with [s 384(2)] ... the Applicant is protected from unfair dismissal."
Plain-English: Because the new employer did not give the required written notice, the worker's earlier years of service still count for unfair dismissal purposes.
Paragraph [45]: (Long citation of Full Bench authorities on termination at employer initiative.)
Plain-English: To say an employer has 'dismissed' someone, there must be employer conduct that objectively caused the employment to end, not just conduct that the employee subjectively felt forced to react to.
Paragraph [47]: "The act which directly and consequentially led to termination of employment was the act of the Applicant: the text and her failing to attend the meeting and then for work."
Plain-English: The Commission saw the worker's own text message refusing the meeting, and then not attending work, as the thing that actually ended the job.
Practitioners should note the following fact patterns where this decision is directly relevant:
Transfer of business where the incoming employer claims it gave notice excluding prior service, but the only written material is a group PowerPoint or notes presented in an optional meeting. This decision signals that such material may fail s 384(2)(b)(iii).
Post-transfer disputes about rosterings and short, heated confrontations in reception areas where the employer's alleged words are reported by a third party. The Commission's approach emphasises close credibility assessment and that fleeting or ambiguous directions (e.g. 'take her off the roster') may not, objectively, amount to dismissal.
Situations where the employee (or a representative) responds to an employer's invitation to meet by a message declining and asserting they have been sacked; this decision shows that such a response can itself be regarded as the employee-caused termination unless the employer's conduct was unambiguous and operative.
This judgment itself relies upon earlier Full Bench and Full Court authorities (Mohazab, Barkla, Pawel, ABB Engineering, etc.) for the law on employer-initiated termination [45]. The present decision applies those authorities to its facts (both on transfer-of-business notice and constructive dismissal analysis). The judgment does not, and cannot, report subsequent treatment by later courts. Practitioners should check later decisions and databases to see whether courts or the Commission have applied the same strictness regarding what counts as 'in writing' for s 384(2)(b)(iii) or have amplified circumstances where removal from a roster may be treated as dismissal.
Several doctrinal and practical questions remain for future cases:
What is the outer boundary of "written notice"? Would a signed letter, an individual email, or a formal contract clause suffice but a group slide not? The decision points to formality but leaves room for debate about documentary sufficiency and context.
To what extent does the compulsory or voluntary nature of an information session matter? The Commissioner referred to the meeting being non-compulsory as a factor [21]. Would a compulsory group meeting change the outcome if the same PowerPoint had been distributed in writing?
When does removal from a roster (or similar operational actions) amount to an employer-initiated termination? The Commissioner here held that roster removal alone did not suffice, but the decision leaves an evidentiary and factual line-drawing problem open for future cases.
How should courts approach employer communications made slightly in advance of takeover where administrators, redundancy payments and insolvency complicate the picture? This case emphasises clarity, but the practical interplay between insolvency processes and employer communication is still fact-sensitive.
Closing note (legal-information reminder): This analysis is a summary of the Fair Work Commission decision in Erlinda Bravo-Crowe v Anton Wiesman Shachaya Group Pty Ltd [2020] FWC 3183, grounded in the judgment text. It is provided as general legal information, not legal advice, and may contain errors. Before relying on this for decision-making or any filing, get a qualified Australian lawyer to check it.
s.394 - Unfair dismissal
[1] Erlinda Bravo-Crowe (the Applicant) has applied for compensation for an alleged unfair dismissal from her employment with the Shachaya Group Pty Ltd (the Respondent).
[2] There are two preliminary issues which I am required to decide. The first is whether the Applicant is protected from unfair dismissal in consequence of a change in her employer. The Respondent took over the business on 11 October 2019. The Applicant was employed as a casual employee. Her last day at work was 11 November 2019. She asserts that is the date her employment was terminated.
[3] If s 384(2)(b) of the Fair Work Act 2009 (the Act) applies, as the Respondent asserts that it does, then the Applicant will not be protected from unfair dismissal because the Respondent had only operated the business, and employed the Applicant, for about one month.
[4] Secondly, if the Applicant is protected from unfair dismissal, I must decide whether the Respondent dismissed the Applicant from her employment. Because of the way the events unfolded, if the Respondent did, by its conduct, dismiss the Applicant it has not complied with requirements of s 387 of the Act and the dismissal will be unfair.
[5] Neither party was represented by a paid agent. The Applicants husband represented the Applicant at the hearing. The Applicant was born in the Philippines and English is her second language. The Respondent was represented by a Director, Mr Wiesmann.
[6] The Applicant was employed as a cleaner at Tidal Waters, a hotel in St Helens. She started work on 6 October 2015. The hotel was operated by a different employer. From the materials the employer was known by the Respondent as Eric Bennett.[1] The Respondent took over the business, initially under an agency agreement on 10 October 2019 and subsequently completed the purchase of the business on 12 December 2019.
[7] It can be seen therefore that the Respondent commenced as the Applicant's employer from 10 October 2019. The last day the Applicant was at work was 11 November 2019. Her name was removed from rosters from 5 December 2019. If s 384(2)(b) applies to the Applicant's employment, then it matters not which of these dates the Applicant's employment ceased as the minimum employment period will not have been met.
Was the Applicant employer for the minimum employment period?
[8] The minimum period of employment for the Applicant is six months.[2] The Respondent submits that the Applicant has not competed six months employment with it as it commenced as employer only some four to six weeks prior to the end of the Applicants employment. The Respondent relies on s 384(2) of the Act so that the prior employment with Mr Bennett does not count towards the period of employment with it.
[9] I pause to note that there was no issue raised as to whether the Applicant was employed on a regular and systematic basis nor whether she had a reasonable expectation of continuing employment on a regular and systematic basis. Mr Wiesmann gave evidence that the Applicant was a valued member of the workforce. The Applicant's evidence was that she regularly worked between 10 and 12 hours per week. That evidence was not challenged. Had these matters been raised as issues I would have resolved the in favour of the Applicant.
[10] Accordingly, I am required to consider whether the circumstances of the case fall within s 384(2)(b) of the Act.
[11] I am satisfied from the evidence that the Respondent is a transferring employee within the meaning of the Act. The Respondent is not an associated entity of Mr Bennett. There is no evidence that Mr Bennet has or had any involvement with the Respondent. The real issue is whether the Respondent complied with s 384(2)(b)(iii) of the Act.
[12] That section requires the Applicant to have been told in writing before the new employment started that the period of service with the old employer would not be recognized.
[13] The closest the Respondent came to providing notice in writing is a PowerPoint presentation which occurred shortly before the Respondent took over the business. The PowerPoint presentation has been variously described as a meeting, a town hall meeting and a presentation. Either way the Applicant attended the meeting. That meeting occurred at the end of October or early November 2019. She subsequently attended a one on one meeting either the next day or a few days later. It was put to the Applicant that at the one on one meeting she was told essentially that her employment was starting again.
"DR WIESMAN: Yes, do you also remember that within the next or the day after we had everybody scheduled to have a one-on-one interview where I wanted to tell everybody the entitlements they have, remember we talked about that - - -?---Yes.
... with the previous employer and we talked about the new employment conditions. I was quite adamant to you that this is a new employment, work starting as per 11 October in the one-on-one discussions we had?---Yes, but you mention that the next day maybe we have a contract but you didn't have a contract any - you didn't. We signed a contract but didn't have any contract.
[15] The PowerPoint presentation contained the following slide:
[16] The only evidence I have of what was said at the PowerPoint presentation is from a question which Mr Wiesman sought to put to the Applicant:
"DR WIESMAN: - - - we had an information session and you started conversation [4]
which was happened at the time where I was not your employer, right? I was about 10 days before I commenced operation at the hotel. There was a contractual thing, it was obligated to do that, right? I gave a presentation where I explained that the current operator is kind of insolvent, right? For that reasons that all employment entitlements will be dealt by the administrator, by the lawyers and as well as by the previous employer and employment will commence from start, right, because it was not sure how the entitlement is going to work out. You were there and you knew that, that employment started as new from 11 October and that means by the time when Mr - - -
[17] There was also evidence that permanent employees were paid out entitlements from the previous employer[4].
[18] I find that the Applicant understood that her employment with the Applicant was to be new employment. Her reference to a contract in her answer referred to above is explained by the PowerPoint slide; that after the probation period had been competed a formal contract of employment would be executed.
[19] However, as I have said, only thing in writing relating to the issue is the PowerPoint slide. Does this meet the requirements of s 384(2)(b)(iii)? In my view it does not. The requirement for notice is clear written notice to the effect that the Applicants prior employment will not be recognised.
[20] A adopt the words of Gooley DP where she said[5]:
"The Parliament has made it clear that certain persons will not be protected from unfair dismissal. Where there is a transfer of business the employer is obliged to make it clear to the transferring employee whether service with the old employer will be recognised. This is important for two reasons. One, the employee will know that he or she will not be protected from unfair dismissal for the qualifying period and secondly, it will assist the employee to determine if he or she refuses the job offer whether he or she is entitled to redundancy pay.5 For these reasons the written advice to employees should be clear.
[21] The PowerPoint slide does not substitute for written notice. I add that the meeting was not compulsory. Mr Wiesmann described it as a town hall meeting. This adds to the informality of the PowerPoint presentation.
[22] As the Respondent failed to comply with s 384(2) the Applicant's employment with the previous employer counts towards the minimum employment period. Accordingly, the Applicant is protected from unfair dismissal.
[23] The evidence surrounding the dismissal is narrow and somewhat unusual. On 11 November 2019 Mr Crowe (the Applicant's husband) attended at the workplace to speak to Mr Wiesmann about an underpayment of his wife's wages and non-payment of penalty rates.
[24] Mr Crowe gave evidence that he arrived at the reception desk and asked the receptionist, Ms Curran to speak to Mr Wiesmann. Ms Curran went to Mr Wiesmann's office and Mr Wiesmann came out to the desk. A discussion ensued about the underpayment. It was agreed that there had been an underpayment of about $25.00.
[25] Mr Crowe then raised the issue of the appropriate days of the week that employees should be paid. He did so in a slightly unusual way. Instead of asking whether Mr Wiesmann was aware of what days employees should be paid he asked whether Mr Wiesmann was familiar with the award. Mr Crowe then said words to the effect "...then you should be aware that Friday, Saturday and Sunday cannot be a payday".[6]
[26] Mr Crowe maintains that he was calm throughout. He gave evidence that after being told paydays cannot be Friday, Saturday or Sunday Mr Wiesmann flew into a rage and said to the Ms Curran (an employee of the Respondent) "take Erlinda off the roster". Mr Crowe responded that he would "go to Fair Work". It was only at that stage, according to Mr Crowe, that he raised his voice. At that time, he left.
[27] The next day Mr Wiesmann asked Ms Donna McIntosh, the housekeeping supervisor to contact the Applicant to come to a meeting to clarify matters. Ms McIntosh called the Applicant and left a message as follows:[7]
"You missed a call from 0428 995 589, who said "Hi Linda, it's Donna. Anton (?) is wondering whether you and your husband could come in for a meeting at 3:00 today. If you could just send me a message and let me know. Ok thank you." This message was provided by Telstra at no charge to you.
[28] The Applicant replied:[8]
"hi Donna we wont be coming to any meeting he sacked linda so you would know the damage is done we are going to sue him for unfair dismissal I am affraid [sic] he has underestimated me he will never ???? his employees again believe me."
[29] A couple of days later an employee of the Respondent, Ms Foliente, sent a text in Tagalog which translates as "Anton says you can have your job back". Mr Wiesmann gave evidence that he was not aware of that message until it was contained in the Applicant's materials file with the Commission.
[30] Mr Wiesmann's evidence differs in that he gave evidence that Mr Crowe was loud and hostile, asking for compensation and threatening to take legal action. He did agree that there was a discussion and agreement about an underpayment. However, it was after that that Mr Crowe became hostile and demanding compensation.
[31] Mr Wiesmann denies telling Ms Curran to take the Applicant's name off the roster. It is the case that the Applicant's name remained on the roster and that she was scheduled to work on 14 November 2019. In essence the Respondent asserts that the Applicant brought an end to the employment relationship.
[32] Ms Curran gave evidence that she was not aware of Mr Crowe being loud until he was leaving. She said she did not overhear the conversation between Mr Crowe and Mr Wiesmann.
[33] Mr Crowe was at pains to try to prove that Ms Curran must have heard the conversation. He sought to do this by tendering photographs of the reception with the witnesses marking where everyone was standing at the time of the discussion. Mr Crowe sought to demonstrate that Ms Curran was sitting close enough that she must have heard the discussion. She maintained that she was busy and that she did not hear the discussion.
[34] She also said that she was not asked to take the Applicant's name off the roster. She gave evidence that she did not do the housekeeping rosters and it would not be appropriate to ask her to take the Applicant's name off that roster in any event.
[35] I am unable to find on the evidence that Ms Curran overhead the discussion between Mr Crowe and Mr Wiesmann. I found Ms Curran to give her evidence in a straightforward manner doing the best she could to answer the questions put to her. It was put to her that she was giving evidence that she could not recall the conversation because she was employed by the Respondent and wanted to keep her job. She was adamant that she was good at her job and that she did not regard it as at risk. I accept that evidence.
"THE DEPUTY PRESIDENT: Yes, I understand that, but what I'm driving at is, I can't make anything out of the fact that she's not on a new roster because of that text, you see. Because you said I'm not coming to work, so why would they put her on any roster.
MR CROWE: She never said she wasn't coming to work.
THE DEPUTY PRESIDENT: Yes she did, in that text. I've been sacked, I'm not coming to work.
It was only after I intervened that Mr Crowe clarified the text was sent on the Applicants behalf. My clear impression was that the first answer set out above was given to try to score some sort of point.
[38] I am also not inclined to accept that he was as calm and collected as he would have me believe when he went to see Mr Wiesmann. When cross examined Ms Curran put his demeanour thus:[10]
"When I responded and I began a conversation, at the beginning, that is, tell me Amanda, what was my demeanour? Was I very loud, aggressive and making rude comments, or was I calm and collected?---I don't know. I guess it was obvious that you were in there to get something sorted. I'll leave it at that."
[39] In his evidence Mr Crowe said "[s]o I proceeded inside myself to front Dr Wiesmann about breaches of the Fair Work Act"[11]. Going to see someone to "front" someone does not suggest someone of a completely calm and controlled demeanour. That description and that of Ms Curran leads me to believe that Mr Crowe had an axe to grind when he went to meet Mr Wiesmann.
[40] I am generally unimpressed with the evidence of Mr Crowe. I also had some time to consider his demeanour during the hearing. All of these considerations have led me not to accept the evidence of Mr Crowe in preference to the evidence of Mr Wiesmann.
[41] As regards to Mr Wiesmann, it must also be acknowledged that he has an interest in the proceeding as well. However, the impression I got of Mr Wiesmann is that he did his best to recall events as he remembered them. He did not strike me as a person who would act on the spur of the moment. I note he took advice regarding employment of employees and held a group meeting followed by one on one meetings. He appeared to be careful in his dealings with his employees. I prefer the evidence of Mr Wiesmann over that of Mr Crowe.
[42] I also note Mr Wiesmann was not discussing matters with the applicant but rather her husband. Mr Wiesmann gave evidence that the Applicant was a good employee and that he would have been happy for her employment to continue. It seems unlikely that he would have said anything to Mr Crowe about taking the Applicant off the roster as she was a capable and valued employee.
[43] I find that Mr Wiesmann did not tell Mr Crowe that he was taking the Applicant's name off the roster. As such there was no termination of the Applicants employment at the initiative of the employer as required by s 386 of the Act.
[44] However, I should add that even if Mr Wiesmann had told Ms Curran to take the Applicants name off the roster I do not have regard to that statement as amounting to termination of the initiative of the employer.
"[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer's conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer's conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O'Meara v Stanley Works Pty Ltd 3 a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:
[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term "initiative" and the convention giving rise to the statutory provisions, the Full Court said:
"These definitions reflect the ordinary meaning of the word 'initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as 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': Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:
'I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that "initiate" means "to begin, commence, enter upon; to introduce, set going, or initiate": see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression "termination" in the Act, read in conjunction with Art 3 of the Convention which speaks of "termination ... at the initiative of the employer", a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.'
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because 'he felt he had no other option'. His Honour described those circumstances as:
'... a termination of employment at the instance [of] the employer rather than of the employee.'
'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'"
[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:
"However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."
[21] In this Commission the concepts 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 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 to be 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 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." (References omitted)"
[46] The conduct of the employer must result directly or consequentially in the termination of the employment. On the facts of this case the removal of the Applicants name from the roster did not of itself result directly or consequentially in the termination of employment. Removal from the roster did not of itself say anything about the ongoing employment relationship. It is also to be remembered that it was not the Applicant (who was the employee) who would, had I made the necessary findings, have been told of the removal from the roster but her husband.
[47] In my view the act which led to the termination of the employment relationship was the text message the next day, the contents of which is set out above. The text was sent in response to an invitation to come to work to sort issues out. The invitation is not consistent with an employer having clearly and unequivocally terminated an employee's employment. The act which directly and consequentially led to termination of employment was the act of the Applicant: the text and her failing to attend the meeting and then for work.
[48] Before closing I should indicate that the Applicant only sought compensation. As I indicated to Mr Crowe during the hearing, I had to take account of the fact that the Applicant had been successful in obtaining work within a very short time. Indeed, the Applicant commenced new employment as a casual on 27 November 2019. As such the Applicant was unemployed for some two weeks. From payslips tendered the Applicant was earning the same hourly rate and was working the same sorts of hours (or more) than she was with the Respondent. Accordingly, any compensation to which the Applicant was entitled under the Act would likely have been limited to the period between 11 November 2019 and 27 November 2019. As a result of the way in which compensation is calculated Mr Crowe's expectations of the amount of compensation which the Applicant was entitled to (the full 6 months) was unrealistic.
[49] I have found that the Respondent did not dismiss the Applicant. Even if Mr Wiesmann had uttered the words relating to removal from the roster, that did not amount to a termination of the Applicant's employment at the initiative of the employer.
[50] Accordingly, the Applicant's application is dismissed.
[5] Gregory v Shaver Shop Pty Ltd [2016] FWC 1323 at [18]
Printed by authority of the Commonwealth Government Printer
Erlinda Bravo-Crowe
Anton Wiesman Shachaya Group Pty Ltd [2020] FWC 3183
Applicant's unfair dismissal application dismissed. No employer-initiated dismissal found and statutory notice requirement for transfer not met by the Respondent; prior service counted but termination was found to be at the Applicant's initiative.
[14] She was cross-examined in the following way:
[36] I must determine whether Mr Wiesmann did say words to the effect that the Applicant's name should be taken off the roster having regard to the evidence of Mr Crowe and Mr Wiesmann. That is the fact upon which the Applicant relies for the proposition that she was dismissed.
[37] I found Mr Crowe to be an excitable person. He was prone to interrupting. He clearly had a vested interest in the proceedings. He was keen to try to demonstrate that the Respondent was generally a bad employer when that was unnecessary for the Applicant to succeed. For example, he sought the imposition of penalties of some sort for the late filing of documents when he had not asserted that the late filing of documents had caused him or the Applicant any difficulty. He was also prepared to misstate the Applicant's case. It had always been the Applicants case that the text quotes above in response to the invitation to a meeting was sent on behalf of the Applicant. However the following exchange occurred during the hearing:[9]
[45] In Barkla v G4S Custodial Services Pty Ltd[12] the Full Bench had this to say about termination at the initiative of the employer: