Glenn Dempsey v Department of Defence - PR921696 [2002] AIRC 1005; (22 August 2002)

Workplace Relations Act 1996

s.170CE application for relief in respect of termination of employment

Termination of employment - jurisdiction - whether resignation of employee constitutes termination at the initiative of the employer.

[1] In this matter Mr Glenn Dempsey (the applicant) lodged an application under section 170CE of the Workplace Relations Act 1996 (the Act) on 11 October 2001 on the ground that the termination of his employment by the Department of Defence (the Department) was harsh, unjust or unreasonable. The application was lodged following the applicant tendering his letter of resignation dated 7 September 2001 to the Department in which he advised that he would cease work on 21 September 2001.

[2] The applicant's letter of resignation, omitting the formalities, reads as follows:

"I hereby resign from my position as Materials Manager, Northern Logistics Group. In accordance with the Defence Employees Certified Agreement 2000-2001 I advise that I will cease work on the 21st of September 01.

I have made the decision to resign from my current position with the Department of Defence following protracted discussions with the Department after I was redeployed from a Business Manager position to a Materials Manager position without consultation. I consider that I am unable to continue in the position of Materials Manager for the following reasons:-

1. I was employed by the Department of Defence in 1995 as part of the Graduate Acquisition Scheme. During the interview process, I made it clear that I wished to pursue a career in accounting and business and that I would require experience in the accounting field on an ongoing basis to ensure that I satisfied the criteria of CPA Australia. At the time of accepting the position I was assured by Defence personnel that I would be placed in accounting and finance positions and would be afforded every opportunity to become a Certified Practising Accountant.

2. I have been assigned the duties of Materials Manager which is essentially a technical job and makes no use of my business and accounting tertiary qualifications. The duties of the Materials Manager position, which were provided to me on 27 April 2001, are substantially different to the duties of the position of Business Manager. The duties statement I received on 27 April 2001 is vague and general in terms including outdated tasks. I believe that I have made clear to senior management, on many occasions, my concerns over the delegation of duties however, the Department has failed to address my concerns. This is clear from the correspondence which I have forwarded on many occasions.

3. I consider my position of Business Manager has been made redundant by internal reorganisation. I have repeatedly informed the Department of my concern over the position of Materials Manager, in particular, that the position of Material Manager is a technical job for which I have no training and does not make use of my accounting and business skills. It is significantly different from the position which I was contracted to perform in 1995.

4. I have previously advised the Department that the position of Materials Manager does not satisfy the criteria for CPA practical experience. By remaining in the Materials Manager position, I am therefore unable to achieve CPA status.

5. I have recently lodged a Complaint with the Office of the Merit Protection Commission and subsequently made application for Primary Review of the decision to assign me the duties of Materials Manager. The Department has failed to provide me with a response within 21 days, as required by the Defence Workplace Relations Manual.

I am therefore unable to continue employment with the Department of Defence and hereby resign from my position of Materials Manager, Northern Logistics Group."

[3] The Department objected to the jurisdiction of the Commission on two grounds, initially that the termination was not at the initiative of the employer and, just prior to the hearing of the matter, that the application was lodged out of time. The jurisdictional objection was heard in Townsville on 6 December 2001 at which time it was agreed that directions would be issued to allow the parties the opportunity to lodge their respective material in relation to the respondent's objection to the allegation that the application had been filed out of the time limitations prescribed by the Act. All supplementary material in relation to the out of time objection was received by this Commission, as presently constituted (this Commission) by 24 January 2002.

[4] Turning to the second objection, the employment relationship ceased on the date of effect notified in the applicant's letter of resignation, which was the last date worked, namely 21 September 2001. The application was lodged 20 days later. Subsection 170CE(7) of the Act provides that "an application under subsection (1) or (3) must be lodged within 21 days after the day on which the termination took effect". On this basis there are no grounds for the respondent to object that the application was lodged outside of the 21 day period as prescribed by the Act.

[5] The Department submitted that subsection 170CE(7A) is the appropriate standard to be applied in the circumstances, as that subsection, in contrast with subsection 170CE(7), contemplates termination where notice has been provided. It argued that resignation occurred on 7 September 2001 which was the date of the notice and accordingly the application should have been lodged on or before 28 September 2001. Thus the application, when lodged on 11 October 2002, was some 13 days out of time, and on the basis of the tests in Kornicki v Telstra-Network Technology Group[1] (and other cases), an extension of time should be refused.

[6] Subsection 170CE(7A) provides:

"An application under subsection (2) or (4) must be lodged within 21 days after the employee is given notice of the decision to terminate the employee's employment".

[7] In my view subsection (7A) of subsection 170CE is inapplicable to the instant matter as that provision concerns the time period for lodgement of an application by an employee, under subsection (2), or by an inspector or a union under subsection (4)) on grounds including an alleged contravention of section 170CL. Section 170CL establishes a statutory form of advance notice to be given to the CES (or its successor) by an employer in contemplation of a decision by that employer to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature. The applicant's claim correctly alleges no breach of section 170CL of the Act.

[8] I conclude that the subject application was lodged within the statutory time period required by the Act.

[9] The substantive issue for consideration in this matter is whether the applicant was terminated at the initiative of the employer.

[10] The applicant contended that it was an express or implied term of his engagement with the Department of Defence that he would, during the course of his employment with the Department, be placed in positions whereby his accounting skills would be utilised in the areas of Budget and Management and Acquisition and Logistics thereby affording the applicant relevant experience to enable qualification, subject to completing specific areas of study, as a Certified Practising Accountant (CPA). As I comprehend the submissions, the applicant claimed that his decision to accept a position with the Department around January 1995 (at which time he was in a position to consider an alternative offer of employment with the Queensland Government) was based on discussions he had with representatives of the Department at the recruitment or formation stage of his contract of employment to the effect that he would be employed in the aforementioned areas.

[11] It was claimed that the Department breached the express or implied term when in May 2000 it required the applicant to perform duties not in accordance with the terms of his engagement. In other words, it was put that when the Department required the redeployment of the applicant to perform duties known locally as Materials Manager, being duties which, according to the applicant, would not qualify as relevant employment to meet the CPA selection criteria, it breached the express or implied term in such a fundamental way that the applicant had no course of action open to him other than the forced termination of employment. Such a forced termination of the applicant's employment, it was alleged, constituted a constructive dismissal[2].

[12] The fundamental manner in which the breach arose, it was submitted by the applicant, was the Department's neglect or failure to consider or properly consider and deal with the applicant's grievances concerning his redeployment.

[13] There is little dispute about the essential facts in this matter. At all times the applicant was employed first, pursuant to the Public Service Act 1922, then by the time of the applicant's resignation, the Public Service Act 1999. During the course of his employment the applicant was also employed under the terms of the Defence (Restructuring) Agreement 1994 and later the Defence Employees Industrial Agreement 1998-1999. At the time of the applicant's resignation with the Department and throughout the period leading up to it, the Defence Employees Certified Agreement 2000-2001 (DECA) was the relevant industrial instrument in place.

[14] The applicant was appointed to the Australian Public Service with the Department of Defence in January 1995 as a Graduate Administrative Assistant in the Graduate Acquisition Trainee Program. At the time of his appointment, the applicant had completed a Bachelor of Commerce (majoring in Accounting) at James Cook University located in Townsville.

[15] Upon completing three training rotations each of approximately six months' duration, the applicant worked as a Finance Officer in the Directorate of Air Defence Projects Section. In January 1997 the applicant applied for and was promoted to Administrative Service Officer (ASO) Class 5 in that Directorate. From October 1997 to May 1998 the applicant worked as Assistant Business Resource Manager and from May 1998 until January 1999 as Business Finance Manager in the Weapons System Project Office Section. In September 1998 the applicant was promoted to ASO Class 6, later to become APS Level 6 as a result of an APS wide classification restructure.

[16] The duties performed by the applicant from June 1996 to July 1997 included the following:

· set up and maintain financial management information systems;

· perform all purchasing and payments for the (early warning and control) project;

· prepare budget estimates and additional estimates and funding submissions.

[17] The duties performed from October 1997 to May 1998 as Assistant Business Resource Manager included the following:

· administer payments and contract change proposals for the prime contract;

[18] As Business Finance Manager from May 1998 to January 1999 the applicant's duties included:

· supervision of financial systems operations with respect to purchasing, payments and asset transfer;

· prepare reports on resource requirements usage and variations;

· prepare budget estimates and additional estimates (liability and expenditure budgets for next 5 years in multiple currencies);

· oversee structure and maintenance of financial management systems;

· provide advice to project managers on resource usage;

· set up financial aspects of prime contract and represent Commonwealth in contract negotiations for prime contract.

[19] In January 1999 the applicant commenced as Business Manager for 10 Force Support Battalion at Townsville. This involved the applicant transferring, at the same classification level (APS Level 6), from Canberra. The duties of this position included:

· coordination of financial resources for the battalion;

· preparation and management of annual and supplementary financial bids;

· development and maintenance of liability and expenditure records and phasing reports;

· maintenance of Battalion Business Plan and Fraud Control Plan;

· provide advice to battalion management on all aspects of financial management; procurement and application of commercial law;

· as business adviser to senior management team, provide commercial input to strategic decision making[3].

[20] One month after commencing the duties of Business Manager with 10 Force Support Battalion, the applicant enrolled to study the educational subjects required by CPA Australia (the professional body) which were necessary for registration as a CPA. At the time of his resignation in September 2001 the applicant had completed three of the five subjects required.

[21] It is not disputed that entry to the professional body involves fulfilment of selection criteria involving three elements the first of which is the accredited tertiary educational standard which was already possessed by the applicant in the form of a Bachelor of Commerce. The second criteria is the completion of approved units of study prescribed by the body. The third element is relevant work experience, described by the applicant in the following terms:

"A final requirement is that the candidate [for CPA] have either: (a) three years experience supervised by another CPA or member of another body holding equivalent status; or (b) five years of unsupervised experience in accounting or finance."

[22] The first mention of a proposed organisational restructure of the Support Battalion which involved the reassignment of duties of the applicant occurred in May 2000. From this point the applicant engaged in a number of discussions and meetings with a range of military and civilian officers of the Department in which he objected to the proposal insofar as it meant that he would no longer be performing the duties of Business Manager.

[23] Nearly twelve months later, the applicant was advised by letter dated 11 April 2001 from the Commanding Officer of the (currently named) Northern Logistics Group, that there:

"is no operational requirement for a Business Manager position in Townsville at the APS6 level . . . ".[4]

and that it was proposed to redeploy Mr Dempsey to the position of Materials Manager to:

". . . avoid the stress of being made potentially excess and subject to the redeployment and redundancy provisions as detailed in the DECA (Defence Employees Certified Agreement").[5]

[24] By letter dated 31 May 2001 the applicant was formally advised in writing by the Department that:

"As a consequence of this reorganisation [i.e. of the Northern Logistics Group, Townsville] you are considered to be displaced".

[25] On 11 July 2001 the applicant was directed to undertake the full range of duties of Materials Manager. The relevant duty statement for the Materials Manager position included the following duties:

"Under limited direction supervise the operation of a section in line with corporate goals and practices. Tasks may include one or more of the following -

· Direct provision of review and procurement action in accordance with approved program,

· Resolve supply problems by liaison with contractors, other Government Departments and Government factories,

· Plan material and financial estimates for replacement and maintenance requirements in accordance with equipment policy,

· Exercise appropriate delegations as required."[6]

[26] Throughout the period March to May 2001 the applicant actively contested the decision of his redeployment by enlisting the support of the Community and Public Sector Union arguing that the Department had failed to adhere to the principles of the extant certified agreement. In any event, although it is not clear when, the applicant appears to have considered that he was made redundant (thereby becoming an excess employee within the meaning of the DECA agreement), and should have been offered a voluntary redundancy [7].

[27] It appears that in early August 2001 the applicant made representations to the Office of the Merit Protection Commissioner and to the Secretary of the Department seeking a review of the decision in respect of his redeployment and on 7 August 2001 the applicant lodged in this jurisdiction, an application for relief under subsection 170CE(1) of the Act which was subsequently withdrawn on 28 September 2001.

[28] Ultimately, the applicant's representations to the Merit Protection Commission and the Departmental Secretary did not proceed. By letter dated 7 September 2001 the applicant resigned with effect from 21 September 2001.

[29] The Department submitted that the transfer or redeployment of the applicant to the similar position of Materials Manager at the same location of Townsville and at the same level as his previous position being that of an APS 6, was consistent with section 25 of the Public Service Act 1999 and complied with the relevant terms of the certified agreement.

[30] The Department rejected the claim in relation to the alleged breach of the contractual element of the applicant's employment on a number of grounds. First, it was denied that there was any binding agreement to the applicant's condition of acceptance of employment that he be placed in either Budget and Management or Acquisitions and Logistics. Secondly, to the extent there was any condition attaching to the engagement of the applicant, such condition was met when the applicant first sought and gained promotion to a higher position on 12 January 1996. Thirdly, it was submitted that any form of ongoing guarantee that the applicant would be employed in a manner consistent with the attainment of accountancy qualifications was beyond the capacity of the interviewing panel or recruitment officer at the time of the applicant's engagement.

[31] In relation to the alleged importation of a term into a purported contract of employment, the Department submitted that employment in the Australian Public Service is by statutory arrangement and not by common law contract of employment and that there is no individual contract of employment into which additional terms may be imported or implied in the case of a Commonwealth Public Servant.

[32] To the extent that a contract of employment did exist between the applicant and the Department in the absence of documentary evidence it was claimed that there is no warrant to imply a term into such contract, citing BP Refineries (Westernport) Ltd v Shire of Hastings (BP Refineries)[8] and Byrne and Frew v Australian Airlines Ltd [9].

[33] Alternatively, my understanding of the Department's submissions are that to the extent any implied contractual term may have co-existed with the statute and/or certified agreement, such term would have been voided by any inconsistency with the statute and/or agreement. In support, the Department relied on the terms of section 25 of the Public Service Act 1999, and clauses 6C.1 and 6C.3 of DECA which respectively provide:

An Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed."

"6C.1 The Department maintains its longstanding commitment to assisting employees who become displaced as a result of structural, organisational or technological change. The Department will pursue the redeployment, through the reassignment of duties or movement of the employee under the PS Act, of displaced employees as a high priority; . . . .

6C.3 Displaced employees ultimately share the responsibility for their own redeployment and employees agree to

· act in a reasonable manner and to seriously consider any redeployment opportunities or training options which may enhance their redeployment;

· acknowledge that a voluntary retrenchment (VR), through termination of employment under the PS Act, will only be made available to a potentially excess (PE) employee at the discretion of the Department, following an assessment of the PE employee's redeployment opportunities and the Department's current operational requirements; and

· acknowledge that the Department may compulsorily redeploy an excess employee into a vacant position at their level, subject to one month's written notice. The employee's consent is required where the extra travelling time incurred means the total journey time exceeds 90 minutes one way".

[34] It was claimed by the Department that consistent with the authority of Director General v Suttling[10] (Suttling) any alleged offers or guarantees to the applicant at the time of his original engagement were void.

[35] In relation to the allegation made by the applicant that his resignation was brought about by circumstances which constituted constructive dismissal, the Department submitted that the applicant had made an informed decision to pursue a career towards becoming a CPA rather than to remain employed with it and that his letter of resignation disclosed his choice to resign.

[36] As far as the claim made by the applicant that the Department failed to respond to his attempts to invoke internal grievance procedures, it was put that the applicant had at the relevant time already instituted an unfair dismissal application (the first application) which effectively prohibited it from being able to proceed to deal with the grievances. The Department cited numerous authorities in support of its contentions on constructive dismissal.

[37] In this matter I have considered each aspect of the evidence and detailed submissions of the parties. Whilst not repeating the evidence in its entirety, I have given it full consideration in reaching my conclusions. This is not a matter where I have been asked to make a ruling involving a dispute over an application of a certified agreement under section 170LW of the Act.[11] Such a case would involve different considerations and may have produced a different outcome. Any rights that the applicant had under section 170LW evaporated when he ceased to be an employee of the Department. The matter before me turns solely on the question of whether the employee was terminated at the initiative of the employer. This issue has arisen in numerous cases in the Commission both before single members and Full Benches. The related question is whether the Department breached a common law term of the employee's contract such that it caused his termination.

[38] The facts of this matter involve a letter of resignation that, in my opinion, is thoughtful, coherent, reasoned and clearly expressed. Applications concerning resignation by written notice within the context of constructive dismissal have been considered by Full Benches of the Commission in several cases including ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering)[12] and B.C. Stubbs v Austar Entertainment Pty Ltd (Austar).[13] In Austar, the Full Bench closely considered the importance of both the employer's intention and the causative effect of the employer's action when it said:

"We consider that for the purposes of this decision, it is consistent with authority to determine this matter on the basis that for a termination to be at the initiative of the employer, the resignation which consummates it must be the direct or consequential effect of:

` . . . 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 ...' [Rheinberger v Huzley Marketing (1996) 67 IR 154 at 160]."

[39] The Full Bench in Austar also cited with approval in that context the last sentence of an observation made in ABB Engineering to the following effect:

"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." (My emphasis).

[40] Clearly the applicant was disappointed with the decision by the Department to compulsorily redeploy him to the position of Materials Manager. That the applicant was redeployed at the same level, involving no reduction in classification and also involving no relocation to another base, did nothing to alleviate his disappointment. There is little doubt that the applicant considered the reassignment of his duties as impairing his opportunity of becoming a certified practising accountant while at the same time remaining employed with the Department. In this regard the applicant claimed that his opportunity to perform duties consistent with his prospect of qualifying as a CPA, was a fundamental term of his contract, established under common law principles and co-existing with, or in addition to, the terms of his employment as governed by the Public Service Act 1922 (later the Public Service Act 1999), and the successive certified agreements.

[41] In BP Refineries the majority of the Privy Council said that for a term to be implied into a contract by business efficacy which does not expressly contain that term, the following conditions must be satisfied:

(2) it must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(3) it must be so obvious that `it goes without saying';

(5) it must not contradict any express term of the contract."

[42] In Suttling it was held that a period of appointment of a teacher was not capable of being shortened without cause and that the power to abolish positions in the New South Wales Teaching Service was not capable of being exercised in derogation of the right of a teacher to a fixed time temporary appointment. Brennan J (with whom Mason CJ and Deane J agreed), relevantly stated:

"Members of the (teaching) Service are appointed pursuant to the Act and their rights must be ascertained by reference to its provisions. The relationship between a civil servant of the Crown and the Crown has often been described as contractual, though the civil servant has been appointed pursuant to statute: [cases omitted]. However, the contractual nature of the relationship has not been universally accepted: [cases omitted]. And sometimes an espousal of one view rather than the other has been avoided: [cases omitted]. If the relationship is contractual, the contract must be consistent with any statutory provision which affects the relationship. No agent of the Crown has authority to engage a servant on terms at variance with the statute. To the extent that the statute governs the relationship, it is idle to inquire whether there is a contract which embodies its provisions. The statute itself controls the terms of service: [cases omitted]." (My emphasis).

[43] The minority in Suttling , Wilson and Dawson JJ, stated as follows:

"If s.51 of the Act were to be construed so as to confer on the Director-General a power to make binding temporary appointments for a finite term, in our opinion the following extraordinary consequences would ensue: 1. Subject to the satisfaction referred to in s.51(3), there is no upper limit on the term that may be fixed. A Director-General or his successor could find his freedom and ability to discharge his weighty responsibilities under the Act (ss.37, 38) seriously fettered . . . . .The legislative scheme embodied in the Act and the GREAT Act makes no provision for enforcement of a binding commitment to continue a temporary appointment for a finite period. These Acts provide a code governing the employment of teachers in the Service. Any construction of the legislation that allowed for access to the common law courts for the enforcement of alleged contractual rights would make the administration of such a large and complex undertaking difficult, if not impossible. It must have been the intention of the legislature that the specially constituted Government and Related Employees Appeal Tribunal would provide the forum in which employment disputes involving officers of the Service would be resolved." (My emphasis).

[44] It can be seen that the terms of the relevant statute, and the certified agreement (at paragraph 33 above) contain provisions that are inconsistent with the claimed contractual term of employment said by the applicant to have been breached by the Department. On the basis of Suttling, it is difficult to see how the alleged contractual term at common law can survive the terms of the Public Service Act 1999, supplemented by the certified agreement.

[45] Further, to the extent that the opportunity to become a CPA was a fundamental term of the applicant's contract is accepted that it is not inconsistent with the terms of the Act, the award and certified agreement, it has not been proven that such term was breached by the time the decision was made to restructure and thereby reassign the applicant to other duties. In my view, the opportunity to perform financial duties consistent with the relevant work experience requirement for CPA qualifications was provided by the Department from at least the time the applicant was first promoted from Trainee to Finance Officer in January 1997. There is insufficient evidence to conclude that the term of the contract was implied with such precision that the opportunity was to last until the applicant decided to avail himself of such prospects, and then continue until the applicant had become qualified. I have accordingly concluded that there is no warrant to infer such an open-ended arrangement as an implied term of the applicant's common law contractual rights.

[46] An additional difficulty with the applicant's submission is the degree of evidence that the reassignment of his duties impeded his prospects of becoming a CPA whilst continuing to perform such reassigned duties. The relevant criteria for the attainment of the CPA are set out in paragraph 21 above.

[47] The evidence that the professional body had rejected or would reject an application which relied on the applicant's previous and prospective duties, by itself or in combination, would not suffice to meet the relevant work experience required by the profession to qualify as a CPA, appears in the applicant's witness statement and is extracted as follows:

"Following discussions with CPA Australia, I understand that the role of Material Manager will not be sufficient to satisfy the criteria of CPA Australia for accreditation as a CPA. By deploying me to the Material Manager position, the Department has deprived me of my ability to continue to satisfy the CPA Australia requirements. Further, I am concerned that I will gradually lose my skills as an accountant if I were to remain in the Materials Manager position" [14]

[48] Mr Dempsey elaborated on this aspect in the following terms:

"Q. What do you say about the proposition that the material manager's job is adequate in terms of accounting to maintain your professional standing, if I can put it that way?---No, definitely not.

Q. Why was that?---Because a material manager basically spends the money. A business manager oversees the expenditure of the money and it's, in a broad sense, is outside of just finance, so that you've got fraud, you've got audit, you've got maintaining delegations, computer systems. We're in the year 2001 now.

Q. Whose got that job?---Well, that's the business manager's job.

Q. I see. And the material manager's job, is it as extensive as that?---Certainly not, no. The material manager doesn't need to have a good understanding of business issues. A material manager will do some finance in terms of here's my budget, I'll spend up to that budget. But the way it's supposed to work is that if you need more money or if there's a change to your scope of your budget or if you've got any sort of problems, the business manager is supposed to deal with all those complex things. The material manager is basically looking at technical issues and directing the expenditure of the money.

Q. All right?---It's a totally different concept.

Q. And is it adequate for you to get up your hours as more as a - for the CPA purposes, the duties of a material manager's position?---If I could qualify it, it could be a business manager's job maybe 70 per cent of the time may - may achieve CPA status accreditation, whereas a material manager might be 5 per cent.

Q. Yes, all right?---It's minuscule".[15]

[49] Under cross-examination, the Department's witness, Lieutenant Colonel Morton, Commanding Officer of the Northern Logistics Group, responded to this issue in the following manner:

"Q. He felt that he'd been bumped out, moved sideways?---He indicated he was unhappy with his role in Northern Logistic Group.

Q. And one of the reasons he expressed to you was that what had happened to him had - would put an effective block on his ability to achieve formal qualifications under the Certified Practising Accountants regime in Australia, with the CPA?---He indicated something similar of that nature to me and I assured him that I did not view it that way.

Q. You indicated what?---That I didn't view it in that light at all.

Q. You didn't view it in that light. Well, did you know anything about what the CPA requirements were?---As described by Mr Dempsey in our conversations, yes.

Q. Yes, and you disagreed with him, did you?---Yes.

Q. And why did you disagree with him?---The job - the position Mr Dempsey held has financial responsibilities within its responsibilities of the job.

Q. Lieutenant Colonel Morton, the so-called financial responsibilities that go with the job as material manager are minuscule compared to the financial responsibilities of the job he previously held?---I disagree. We are managing Commonwealth funds, including the expenditure to budgets, etcetera, the whole range of tasks.

Q. I put it to you that Mr Dempsey's role as the material manager was, by comparison to what he'd previously done, was so low powered as not even to count, in terms of an accounting position?---I disagree".[16]

[50] No other material was placed before the Commission which would support either of the contradicting views above. The applicant's subjective view of his prospects based on what he asked of CPA and what he was advised by CPA, may be correct, but in the absence of corroborating evidence, I attach little weight to it.

[51] In summary, the Department may have precipitated the dispute (to use that word broadly) when, around May 2000, it decided to reorganise the workplace resulting in the compulsory redeployment of Mr Dempsey to the position of Materials Manager, but the applicant chose to end the dispute when he resigned. It was the applicant who, in the period August/September 2001, decided to force the issue by his resignation, which he made, it should be noted, while his first application for unfair dismissal was still on foot. That potential avenues for the applicant's grievance were not exhausted (for instance, under the dispute settlement procedure of the certified agreement), cannot be the responsibility of the Department. Therefore, Mr Dempsey's decision to force the issue by his resignation was, in my view, the operative factor in bringing an end to the employment relationship.

[52] In all the circumstances I conclude that the decision of the applicant to resign from his employment with the Department was based largely on his perception and subjective response to the decision of the Department. I accordingly find that the applicant's resignation was voluntary and therefore there was no termination of employment at the initiative of the employer.

[34] The application is accordingly dismissed for lack of jurisdiction.

Printed by authority of the Commonwealth Government Printer

1 Print P3168, Ross VP, Watson SDP and Gay C, 22 July 1997.

2 Outline of Submissions of Applicant - Exhibit A2.

3 The relevant employment history of the applicant has been summarised by reference to his witness statement (Exhibit A1) and the respondent's Summary Submission (Exhibit R4). However, not every duty identified by the applicant has been restated in this decision.

9 (1995) 185 CLR 410.

10 [1987] HCA 3; (1987) 162 CLR 427.

12 Print N6999, Munro J, Duncan DP and Merriman C, 9 December 1999.

13 Print Q0008, Ross VP, Munro J and Harrison C, 9 April 1998.