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[2003] AIRC 1589
defendant. The applicant's application with respect to the termination of his employment is dismissed.
An employee claimed he was unfairly dismissed after a dispute about unpaid leave. The employer argued the employee resigned. The Australian Industrial Relations Commission had to decide if it had jurisdiction to hear the case, which required finding that the employer terminated the employment. The Commissioner found that during a heated meeting, the employee clearly resigned rather than merely threatening to resign if not paid. Because the employee resigned, the termination was not at the employer's initiative, and the Commission lacked jurisdiction to hear the unfair dismissal claim. The application was dismissed.
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1 cited instrument linked from this judgment.
s.170CE application for relief in respect of termination of employment
[1] This is an application, pursuant to section 170CE of the Workplace Relations Act 1996 (the act) by Mr G Kensington (the applicant) in relation to the termination of his employment by Caiani & Company Pty Ltd (the respondent) on the grounds that the termination was harsh, unjust or unreasonable.
[2] The respondent objected to the Commission dealing with the application, for want of jurisdiction, and moved for its dismissal on the ground that no termination of employment had occurred at the initiative of the employer (s.170CD(1), s.170CE(1). The respondent submitted that the applicant had resigned during a meeting on Monday 5 March 2003.
[3] The applicant was represented by Mr A McDonald, solicitor and the respondent by Mr T Donaghey, of counsel and Mr C Power, solicitor.
[4] The applicant gave evidence as did Mr Caiani, Director and Ms M Santangelo, Project Manager for the respondent.
[5] The applicant commenced with the respondent on 3 December 2002 as a Consulting Team Leader.
[6] The applicant's last day of work was 5 March 2003.
[7] The applicant was on leave for two weeks from 19 February 2003, returning to work on 5 March 2003.
[8] On 5 March 2003, there was a meeting between the applicant, Mr Caiani and Ms Santangelo in a coffee shop.
[9] Ms Santangelo was the company's Project Manager and she assisted Mr Caiani in the administration of the business. Ms Santangelo was also Mr Caiani's marital partner.
[10] Ms Santangelo gave evidence regarding the employment document which was signed by the applicant on 2 December 2002 [Exhibit A1]. She referred to the annual leave provision of 20 days as well as the agreement that the applicant's residence would be in Melbourne, having relocated from Brisbane. It was Ms Santangelo's evidence that the applicant had not relocated to Melbourne by the end of February 2003. This was said to be of great concern to the respondent.
[11] It was indicated by Ms Santangelo that the applicant had requested two weeks leave in February 2003, initially to relocate but then to spend more time with his family. It was agreed with the applicant that he would commence leave on 19 February 2003 and return on 5 March 2003. Ms Santangelo was not happy because she had concerns about the One Steel project's deadlines. Ms Santangelo stated that, as of 19 February 2003, the applicant had no annual leave left as he had taken what he was entitled to - three days over Christmas and two days when his wife came down to Melbourne. She was aware that no prior agreement had been reached with the applicant regarding whether he would be paid for the leave.
[12] Ms Santangelo said that the applicant's probationary period ended on 3 March 2003. She said that she would have preferred to have had a discussion with the applicant regarding his commitment to the company and his performance prior to the end of the probationary period. It was Ms Santangelo's evidence that no decision had been made to terminate the applicant, rather it was to be a discussion regarding his commitment.
[13] On 5 March 2003, Ms Santangelo recounted that she and the applicant walked to a cafe where they met up with Mr Caiani. She recalled that the conversation commenced with Mr Caiani talking about commitment. The applicant had interrupted and said that he was concerned that he had not been paid properly. Ms Santangelo said that she had tried to explain how the applicant's February 2003 pay had been calculated. During cross examination, Ms Santangelo recalled Mr Caiani telling the applicant that he had received advice from his accountants that he could not pay the applicant's leave because he had only been there a short time. In addition, the respondent was concerned that the applicant might not come back from leave as he had not yet relocated to Melbourne. She denied that the applicant was told that the accountants had advised that the applicant was employed to 18 February 2003.
[14] Ms Santangelo stated that the applicant became very upset and that he said that he had not been told that it would be leave without pay. Ms Santangelo remembered that Mr Caiani had replied that he had never said that it would be leave with pay and that the applicant had only been with the company for about two and a half months.
[15] It was Ms Santangelo's evidence that the applicant had asked about a shortfall in wages and expenses but that it was not during the meeting on 5 March 2003. She stated that there had been a shortfall in payments to the applicant in the past.
[16] Ms Santangelo recalled that the applicant then stood up and said that he was worth more and that he was resigning and that he had had enough [Transcript PN71]. Ms Santangelo did not remember the applicant saying the words - if he was not going to be paid, he would have to resign. She stated that Mr Caiani had responded to the applicant's resignation by saying that that was okay and that he accepted it (the resignation) and that there needed to be a handover.
[17] The applicant had then got up and left the cafe with Ms Santangelo and Mr Caiani following. At the traffic lights, Ms Santangelo and Mr Caiani caught up with the applicant. He had repeated that he had resigned and that he was going. The applicant had then pushed the office key on to Mr Caiani. Mr Caiani told the applicant that he did not want him to make contact with any of the clients, not even by telephone. Mr Caiani had also said that if the applicant contacted One Steel, he would take legal action. At that point, Ms Santangelo said the lights turned green and the applicant had walked away.
[18] It was indicated by Ms Santangelo that, later in the day, she and Mr Caiani had visited their solicitor. As well, Ms Santangelo had telephoned the applicant's wife. She advised her that the applicant had resigned and that, as he was very upset, they were therefore unable to talk to him. Ms Santangelo requested that she tell the applicant that he was not to make any contact with the company's clients. In the event that he did, Ms Santangelo said that they would have no option but to take legal action.
[19] A letter was sent to the applicant [Exhibit A2] on 7 March 2003, stating that the applicant had abandoned his employment on 5 March 2003. Ms Santangelo stated that she believed that a resignation and abandonment of employment were very similar but that she did not know the difference in legal terms.
[20] After the letter was sent, the applicant made contact with Mr Caiani. Ms Santangelo `heard' the conversation and recalled that the applicant had tried to get his job back. She recalled that Mr Caiani's response had been that the applicant's resignation had been accepted and that the company was not prepared to take him back. It was Ms Santangelo's evidence that this was that it was difficult to manage an employee who was not committed as he/she might decide to leave at a crucial time in a project. She recalled that, on 17 January 2003, at a critical time in the One Steel project, the applicant had said that he was going to leave. Ms Santangelo stated that Mr Caiani had then had to agree to some matters that he otherwise would not have agreed to, to prevent the applicant from leaving.
[21] Ms Santangelo said that the applicant had continued to contact the office by ringing almost every day to advise that he was sick. She recalled that her response to the applicant had been that he had resigned, that it had been accepted and that the company was not going to take him back.
[22] It was Ms Santangelo's evidence that the other employees were not advised until 6 March 2003 about the situation with the applicant. She denied that either she or Mr Caiani had said that the applicant had been fired.
[23] Mr Caiani gave evidence regarding the agreement that the applicant would relocate to Melbourne and said that it was important that this occur. He recalled discussions with the applicant regarding relocation and stated that, over time, the applicant had begun to waiver on whether he was willing to relocate. Mr Caiani recalled that, before the applicant went on leave on 19 February 2003, the applicant had told him that it was going to be very difficult to relocate, even though his contract provided for this to happen by the end of February 2003. Mr Caiani remembered the applicant, in mid January 2003, saying that he was worried about bringing his family to Melbourne.
[24] With respect to the applicant's request for leave in February 2003, Mr Caiani stated that the applicant had needed time off as he was having trouble selling his house, some difficulties with his wife and family and he had been working long hours. Mr Caiani recalled feeling "uneasy" about giving the applicant time off and also about the timing of the leave, due to the requirements of the One Steel project. He said that the applicant had been categoric regarding the need to take leave and that the applicant had stated that the latest he could leave was the morning flight on 19 February 2003 with a return date of 5 March 2003.
[25] Mr Caiani indicated that the discussion with the applicant regarding payment for the leave had been vague. He stated that he did not tell the applicant that the leave would be without pay [Transcript PN 253-4]. He recalled that the conversation had been about whether the applicant would be paid on the 1st or 2nd of March. Mr Caiani said that he had told the applicant that he would:
" ... definitely be paid on the first or the second, or very close thereafter, and that was as far as we discussed things." [Transcript PN250]
[26] Mr Caiani explained that he had telephoned the accountants and had asked their advice regarding payment of the leave. Their advice had been leave without pay as the applicant had only accrued four days annual leave, he was still on probation and the respondent was unsure whether the applicant would return to work after the leave.
[27] On the applicant's return to work on 5 March 2003, the respondent sought to have a meeting with him to discuss the issues of his relocation to Melbourne; whether he was happy working with the respondent and his performance to date. Mr Caiani said that he had not made a decision to terminate the applicant.
[28] It was recalled by Mr Caiani that, at the cafe, he began the conversation by asking whether the applicant had any real intention of relocating to Melbourne. The applicant's response had been that he had been underpaid. Mr Caiani recalled that he explained to the applicant that, on the advice of his accountants, the period of leave would be leave without pay and the reasons why. He stated that the applicant had become exceedingly angry and had said that he should have been paid for all of February. He remembered that the applicant had said that they were "cheats and unfair" [Transcript PN 261]. Mr Caiani had then responded that, if the company had paid for the leave, the applicant would have used 17 days annual leave. This was when he had only been employed for three months. It was recalled that the applicant then said that:
"... I have had it, I want out, I am resigning, I am resigning right now, straightaway ..." [Transcript PN 344]
[29] Mr Caiani said that the applicant got up and left the cafe.
[30] It was recalled by Mr Caiani that he and Ms Santangelo followed the applicant out of the cafe. Mr Caiani stated that he had responded to the applicant that his wanting to leave had been accepted but that a proper exit planned needed to be worked out. Mr Caiani stated that the applicant kept on walking and refused to discuss the matter properly. The applicant pulled his wallet out and gave his office key to Mr Caiani and said again that he was:
"... going, I am off, I am definitely resigning, I am out." [Transcript PN 262]
[31] The applicant then continued to walk down the street. Mr Caiani denied following the applicant but did concede that he had yelled out to him that he was not to ring up the clients.
[32] About three days later, Mr Caiani recounted that there was a telephone call from the applicant who said that he wanted to come back. Mr Caiani's response had been that it was over with the respondent. He also understood that, subsequently, the applicant had rung and spoken to Ms Santangelo on a number of days and had said that he was sick.
[33] During cross examination, Mr Caiani denied that, at the meeting on 5 March 2003, the applicant had said that, by not paying him for his leave, the respondent was placing him in a position whereby he would have to resign.
[34] With respect to the letter sent to the applicant on 7 March 2003 [Exhibit A2], Mr Caiani stated that the applicant had resigned on 5 March 2003 and that it was a "clear" resignation. He said that, in mid January 2003, the applicant had also threatened to resign.
[35] Mr Caiani stated that he did not advise staff, on 5 March 2003, of the situation with respect to the applicant. He indicated that, on 6 March 2003, he had told the other staff that the applicant was not allowed into the office without Mr Caiani being told and that, if any of the staff wished to talk to the applicant, it was to be outside the office. He could not recall telling staff that the applicant had been sacked. Mr Caiani denied that he had told them that the applicant had tried to blackmail him by demanding a pay increase at a critical time in the project.
[36] It was Mr Caiani's evidence that the accountants had told him that the applicant, as of 18 February 2003, had a balance of about 4/4.5 days accrued annual leave, as the applicant had already taken four days. In addition, the accountants had investigated a mistake in the applicant's previous month's pay which meant that there had been a shortfall of between $50 to $100. Mr Caiani indicated that, between $100 and $200 in expenses was also owing to the applicant, subject to Mr Caiani checking that the expenses were payable by the company. Mr Caiani acknowledged that these expenses had not yet been reimbursed.
[37] During cross examination, Mr Caiani denied that the One Steel contract was 97% completed, the respondent no longer needed the applicant. He explained that, with such clients, repeat work was very important. This meant that it was important to keep the original team together and that the applicant was a good member of the team. As well, Mr Caiani stated that, as there was still 3% of the project to be completed (the report), it was important that the applicant not leave but stay and finish the report.
[38] It was the applicant's evidence that there were a number of discussions between himself and Mr Caiani regarding relocation from Brisbane to Melbourne. He recounted that, at the initial interview, he was advised that he was required to relocate by the end of March 2003. The contract had specified 3 December 2002 but had been changed to the end of February 2003. Further, following a verbal agreement with Mr Caiani in late January 2003, relocation had been altered to Easter 2003.
[39] The applicant also stated that he had arranged permanent accommodation for himself in Sandringham on 3 March 2003. Prior to that date, he had been staying in a bed and breakfast in St Kilda. It was indicated by the applicant that Mr Caiani had been aware of his move into permanent accommodation, that he had relocated a vehicle to Melbourne and that furniture had been transported down.
[40] With regard to trips back to Brisbane, the applicant stated that the contract had provided for return trips to Brisbane every two to three weeks during the first three months. During cross examination, the applicant said that, at the time of the interview and subsequently, he had discussed with Mr Caiani that he would have a trip to Brisbane about every three weeks. The applicant said that he had only been able to go to Brisbane twice in the first three months because of the workload. He outlined that he had gone to Brisbane for Christmas on the basis that he worked the two days between Christmas and New Year. The second trip to Brisbane had taken place at the end of the project.
[41] During the interview at the airport, the applicant recounted that Mr Caiani advised him that he would be working ten to twelve hour days and two weekends per month. The applicant stated that his hours had been fourteen to sixteen hours a day. He had also worked two weekends in December 2002 plus one day on another weekend together with nearly every weekend in January 2003.
[42] In terms of payment for the Christmas/New Year period, the applicant explained that he had expected to be paid for the public holidays and the two days he worked, with 27 December 2002 to be taken as annual leave. He had approached Mr Caiani, as there appeared to be a $50 shortfall in his January 2003 pay, who had responded that he would talk to his accountants and that it would be rectified in the February 2003 pay.
[43] The applicant also gave evidence that he had arranged with Mr Caiani that, if he worked one of the weekends in January 2003, he could then take off the following Thursday and Friday as time in lieu as his wife would be in Melbourne. During cross examination, the applicant insisted that this arrangement had been discussed and agreed with Mr Caiani.
[44] With respect to the break in February 2003, the applicant stated that he had discussed with Mr Caiani whether the time off would be paid and had been told that a full month's pay would be paid into his account in early March 2003.
[45] It was the applicant's evidence that, prior to the first meeting with One Steel, he and another employee had been told by Mr Caiani that they were to back up whatever he said or they would be fired. The applicant recounted that, during the meeting, Mr Caiani had said that the applicant had been working with the company for eight months.
[46] It was stated by the applicant that he and Mr Caiani had had a meeting at 8.30am on Monday 5 March 2003 regarding his February 2003 pay. The applicant had told Mr Caiani that he had not been paid for the month. He remembered Mr Caiani looking surprised and saying that he would talk to his accountants about it.
[47] The applicant recalled that, on the walk to the cafe with Ms Santangelo later on in the morning of 5 March 2003, she had asked how he was going with the sale of his house. He recalled that he had told her that he was expecting an offer that day and that several others were interested.
[48] Once in the cafe, they met up with Mr Caiani. The applicant stated that Mr Caiani had started a conversation by talking about a previous matter and had then told the applicant that he had checked out his query regarding his February 2003 pay. Mr Caiani told him that his accountants' advice had been that he was not required to pay a full month's pay as the applicant had left the company on 15 February 2003. The applicant remembered responding that he had gone on leave on the understanding that he was getting paid. Mr Caiani had replied that his accountants had told him that he did not need to pay a full month's pay as that would include 4.6 days of holidays. The applicant then had stated that that could not be right as he had worked out roughly what he was owed. Mr Caiani said that he was not going to give the applicant any more money. The applicant had then asked Mr Caiani about the other outstanding payments and he recalled Mr Caiani saying that he was not going to pay him. The applicant indicated that he had become frustrated but denied that he had become angry.
[49] It was the applicant's evidence that he had then told Mr Caiani that:
"... if you are not going to pay any of it, I will have to resign." [Transcript PN 611]
"... well, if you don't pay I will have to resign." [Transcript PN 656]
[50] The applicant stated that he had also said that that is it, that he was out of here and that he had had enough. The applicant denied that he had also said that he was resigning. [Transcript PN 676]
[51] It was recounted that Mr Caiani had stood up and told the applicant "... do not ever come back to the office." [Transcript PN 672] He had also said that the applicant was not to call anyone at One Steel or the customers. If he did, Mr Caiani said that he would sue the applicant. The applicant remembered that he had replied "fine" [Transcript PN 611] and had stood up and got out his office key from his wallet. The applicant recalled that he then said "... well, that is it - okay." [Transcript PN 657-8]
[52] It was recounted that Mr Caiani was yelling at him not to contact the office or One Steel or else he would sue him. To avoid a public altercation, the applicant said that he had walked to the traffic lights and pressed the button. Mr Caiani had continued to repeat that he would sue the applicant if he contacted One Steel. Once the lights changed, the applicant said that he went off in one direction and Mr Caiani and Ms Santangelo in another direction.
[53] The applicant stated that there had been a shortfall in the December 2002 pay, a $50 shortfall in January 2003's pay, his expenses had not been paid and there was the issue of non payment of his leave in February 2003.
[54] It was recounted by the applicant that his wife had told him that Ms Santangelo had rung and said that their lawyers were drafting a letter. The applicant recalled that he had telephoned Mr Caiani on Friday 7 March 2003 who had hung up on him at first. The applicant had rung back because he was upset at what was going on and he needed to see a doctor. He had told Mr Caiani that he was sick. Mr Caiani had responded that a termination letter had been sent to his house in Brisbane and that he should contact his wife. The applicant denied that he had asked Mr Caiani for his job back.
[55] The applicant stated that he understood that he was still required to work the 30 days notice as per his contract, even with Mr Caiani having terminated him.
[56] It was submitted by Mr Donaghey that the applicant had resigned or, in the alternative, had abandoned his employment. The submission was put in the alternative because, it was argued, no notice had been served by the applicant and no contact made for a reasonable period after the cafe meeting on 5 March 2003.
[57] Mr Donaghey set out the facts of this matter in light of the case of Rheinberger v Huxley Marketing Pty Ltd (67 IR 154). He stated that the question to be determined, in that matter, was whether the actions on the part of the employer intended to bring employment to an end or would probably have had that effect. To this end, Mr Donaghey argued that:
[58] Further, Mr Donaghey referred the Commission to Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (Mohazab) which is authority on the question of whether the actions of the employer resulted directly or consequently in the termination. It was submitted by Mr Donaghey that the payment or non-payment of a disputed entitlement was not close enough or was something that would result directly or consequently in the termination of the employee. Mohazab was distinguished from this matter on the basis that, in Mohazab, the employer had created an environment in which the employee had no alternative but to resign. In this matter, it was contended that, in the heat of the moment, the applicant had resigned.
[59] Applying the principles set out in Canh K. Ngo and Link Printing Pty Ltd [Print R7005], it was submitted that, unless such a resignation is withdrawn immediately and the employer accepts it, then only the consent of the employer will reverse the resignation. It was asserted that this was the situation in this case - a dispute about pay got blown out of all proportion and, when the applicant tried to get his job back on 7 March 2003, Mr Caiani had not consented to the withdrawal of his resignation.
[60] In summary, Mr Donaghey submitted that the applicant either resigned or abandoned his employment. It was argued that the non payment of leave and long working hours were not of such a nature as to force a resignation. The initiative with respect to the termination came from the applicant.
[61] With respect to the letter of 7 March 2003 stating abandonment of employment, it was contended that it would be unusual for an instructing solicitor to have had a full overview of all the issues at that stage.
[62] It was submitted by Mr McDonald that the applicant was dismissed by the respondent in that the applicant had stated that, if the respondent was not going to pay him, he might have to resign. Mr McDonald argued that the applicant had threatened to resign but had not actually resigned. It was, the respondent who had told the applicant that he was "out", he was sacked and not to come back to the office. This had been followed, it was contended, by the respondent running down the street making threats about One Steel. In addition, the respondent's solicitors had written to the applicant stating that he had abandoned his employment and was therefore terminated.
[63] With respect to constructive dismissal, it was submitted that the respondent's refusal to pay the applicant's leave provided a good basis for the applicant to say that he might have to resign. However, Mr McDonald contended that it was the respondent who had responded by terminating the applicant and who had instructed him not go back to the office and to give back his key.
[64] The issue for determination by the Commission is whether there was a termination at the initiative of the employer. In order to make this determination, it is first necessary for a number of findings of fact to be made.
[65] There was a fundamental disagreement between the parties regarding what took place during the meeting in the cafe on Monday 5 March 2003. Witness evidence about the conversation between Mr Caiani, Ms Santangelo and the applicant was presented to the Commission.
[66] It is useful, at this point, to set out this evidence.
Mr Caiani's evidence was that he had begun the conversation to the cafe by:
".... that we were cheats and unfair, and said that that just wasn't on, and he should have been paid right up until the end of February, and that really he would make up the days after that. And I said, yes, that we if we had to do that then you would, as of the 5th, if we had to pay you right through to the 5th, then you would have incurred essentially 17 days annual leave, which is nearly your full entitlement, and were only virtually three months into the employment, and really that isn't fair. And he just spat the dummy and he said, I am resigning, I am leaving, and that is it, that is it. And he just went to leave." [Transcript PN261]
" .... He just virtually said, right, I have had it, I am out, I am resigning, went to leave. He just got up and left. And I just said straightaway, well, Grant, okay, we accept that you want to leave, let's do this properly and let's try and work out a proper exit, exit plan, because there is still work to be completed that you were wanted on for, there is still hand over and let's just do this properly. He just wouldn't have a bar of it. He just continued walking. So then we chased after him, and he crossed the road, we went after him, and I said, come on Grant, let's discuss this properly, and, okay, you want out, but I am sure we can do this properly. And he said, no, and he pulled his wallet out, he said - pulled his wallet out, opened the wallet, took the key out and he said, here, there is my key, I am going, I am off, I am definitely resigning, I am out ....". [Transcript PN262]
[67] Further, during cross examination, Mr Caiani stated that:
".... he (the applicant) resigned from his employment, and in the manner theat he actually did it, he just resigned. That is it. We had just barely started talking from a minute to a minute and a half, two minutes. That is it, I resign ... He made it very clear, pulled out his wallet, pulled out the key and gave it to me, I resign, I am out of here, I am gone...". [Transcript PN 322]
[68] For her part, Ms Santangelo's evidence was as follows:
" ...I am concerned about I haven't been paid properly when I - he got paid early March, and he is saying that the amount that he received early March wasn't the correct amount.
And then I proceeded to try to explain to him how we came to that calculation ... And then Grant was quite upset, was very upset, and he looked at Carlo and said, you never said that it was going to be leave without pay. And Carlo responded and said, I never said it was going to be leave with pay ... At that stage Grant stood up and he said something about he is worth more. I think he was disgruntled because of the previous conversation he had been disgruntled in regards to his actual wage that he was receiving, and said, I am resigning, I am going, I am resigning, I have had enough, I am resigning. And then Carlo said, okay, that is fine, I accept that. Let's talk about hand over, and finish off the work that you have started. And Grant said, I have just had enough of this, and he turned around and walked, walked away ...". [Transcript PN 71]
[69] On the other hand, the applicant's evidence was that:
".... that can't be right, because I had already worked out roughly if that was the case what an approximate net payment I would receive. He (Mr Caiani) said there would be no more payments, that is it, and I am not going to increase, give you any more, basically. What happened next was I said, well, if you are not going to pay any of it, I will have to resign ... Mr Caiani stood up and said that I was never, ever to come back into the office, I was not to contact the office ... and that if I contacted anybody from One Steel, he would sue me ... I said, fine, I stood up to get my wallet out of my pocket which had the office key. I took the office key out of my wallet and I put it on the table. Mr Caiani picked the key up ...". [Transcript PN 609-611]
[70] In essence then, the following evidence was given regarding what the applicant said in the cafe:
[71] In matters where there is direct conflict in the evidence regarding critical facts, the Commission takes the approach of making a finding of fact on the basis of the balance of probabilities. A Full Bench in Qantas Airways Ltd and Joseph Seno [PR904809] 1 June 2001, at paragraph 30, quoted, with approval, a decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170:
"...the ordinary standard of proof required of a party who bears the onus of proof in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish of fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove...".
[72] Applying this principle to the evidence before me, I have formed the view that it is more probable that the applicant said that he was resigning. It is apparent from the evidence that, when the topic of the applicant's February 2003 leave was raised, the conversation between Mr Caiani and the applicant became heated. In such a situation, it would be more probable, in my view, for a person to say that they were going to resign rather than - that if they were not going to be paid, they would have to resign.
[73] Accordingly, I find that the applicant resigned on Monday 5 March 2003. On this basis, I find that the termination of the applicant was not at the initiative of the employer.
[74] Therefore, the Commission does not have jurisdiction to deal with the application pursuant to section 170CE.
[75] The applicant's application with respect to the termination of his employment is dismissed.
Printed by authority of the Commonwealth Government Printer
G Kensington
Caiani & Company Pty Ltd - PR942276 [2003] AIRC 1589;
(1992) 67 ALJR 170
(1995) 62 IR 200
The applicant's application with respect to the termination of his employment is dismissed.