Fair Work Act 2009

s.365 - General protections

Application to deal with contraventions involving dismissal - jurisdictional objection - resignation - no dismissal found - application dismissed.

• [1] Mr Kane Davy claims that he was dismissed from his employment with O'Connor Engine Services Pty Ltd on 14 July 2021, and that the dismissal contravened the general protection provisions of the Fair Work Act 2009 (Cth). The Respondent claims that there was no dismissal on that day because Mr Davy had already resigned his employment one week earlier.

• [2] For the reasons that follow I find that Mr Davy is not "a person who has been dismissed" and that his application was not properly made.

• [3] The FWC can deal with applications under s.365 of the Fair Work Act 2009 ("the FW Act") by way of conciliation or mediation under s.368. If the FWC is satisfied that all reasonable attempts to resolve the dispute have been or are likely to be unsuccessful it can issue a certificate under s.368(3). Section 370 imposes a substantial restriction[1] upon applicants by preventing a general protections court application being made unless the FWC has issued a certificate under s 368(3)(a) in relation to the dispute.

• [4] The Full Court in Coles Supply Chain v Milford (2020) 300 IR 146, [2020] FCAFC 152 ("Milford") made the following relevant observations about the FWC's capacity to deal with applications under s.365 and antecedent disputes about dismissal:

a) The FWC's non-determinative powers to deal with a dispute under s.368 are only enlivened if an application is properly made under s.365. The proper making of an application under s.365 is an essential precondition to the FWC's authority to perform its functions under s.368 (at [51]).
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> b) a dispute about whether a person has been dismissed raises an antecedent issue going to the existence of the FWC's authority to compel an employer to participate in its conciliation processes (at [65]).
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> c) it is open for a respondent to assert that there has been no dismissal, which gives rise to a dispute on that question that falls to be determined under s.365 (at [67]).
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> d) that dispute must be resolved before the FWC's powers under s.368 can be exercised at all (at [67]).
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> e) the FWC is entitled to determine the limits of its authority to deal with a dispute under s.368, although it has no authority to conclusively determine those limits (at [43]).
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> f) in so determining the limits of its authority the FWC may determination matters of fact (at [71]).
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> g) the Federal Court or the Federal Circuit Court has the power to judicially determine whether a person is entitled to make an application to the FWC (at [74]). The FW Act establishes alternative pathways for an applicant and prospective litigant and a court might decline to recognise an "application" or resulting certificate is valid when determining an objection to competency of a legal proceeding under s.370 of the FW Act (at [75]); and
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> h) the determination by the FWC is not authoritative in the sense of being final. If the FWC errs in determining a question upon which its authority depends, it will commit jurisdictional error by wrongfully denying that it has the authority to "deal with the dispute" under s.368 of the FW Act (at [79]).

• [5] Mr Davy only has capacity to make a claim if he is "a person who has been dismissed". Section 365 of the FW Act is in the following terms:

"365 Application for the FWC to deal with a dismissal dispute

(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;

the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."

• [6] "Dismissed" is defined in s.12 of the FW Act by reference to s.386. Section 386 is in the following terms:

"368 Dealing with a dismissal dispute (other than by arbitration)

(1) If an application is made under section 365, the FWC must deal with the dispute (other than by arbitration).

Note: The FWC may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)). One of the recommendations that the FWC might make is that an application be made under Part 3-2 (which deals with unfair dismissal) in relation to the dispute.

(3) If the FWC is satisfied that all reasonable attempts to resolve the dispute (other than by arbitration) have been, or are likely to be, unsuccessful, then:

(a) the FWC must issue a certificate to that effect; and

(b) if the FWC considers, taking into account all the materials before it, that arbitration under section 369, or a general protections court application, in relation to the dispute would not have a reasonable prospect of success, the FWC must advise the parties accordingly.

• [7] In Bupa Aged Care Australia Pty Ltd v Tavassoli[2] the Full Bench summarised the relevant tests under s.386 as follows:

"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is "forced" by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter."

• [8] The Respondent operates a sawmill and trades under the name O'Connor Sawmilling Rappville. I will refer to the Respondent in this decision as "O'Connor Sawmilling".

• [9] Mr O'Connor and Mr Jordan gave evidence on behalf of O'Connor Sawmilling. Samuel O'Connor is the owner and a Director of O'Connor Sawmilling, and Andrew Jordan is the Operations Mill Manager. There is very little disagreement about the events that led to the end of Mr Davy's employment. Mr Davy gave evidence on his own behalf.

• [10] On 3 June 2021 Mr Davy injured his hand when it was jammed between two large centre cant pieces of timber. On the day of the injury Mr Davy spoke to Mr Jordan, who told Mr Davy "it looks swollen. You should tell Sam [O'Connor]".

• [11] Later that day Mr Davy told Mr O'Connor about the injury and asked him what to do if his hand was no good the next day. Mr O'Connor told Mr Davy "we will get Andrew to bench for the day", meaning that Mr Davy would not have to attend for work and O'Connor Sawmilling will arrange for someone to replace Mr Davy.

• [12] Mr Davy attended work the next day and in fact worked as normal until 7 July 2021. Mr Davy said he felt as though his injury was not taken seriously and was overlooked by Mr O'Connor and Mr Jordan.

• [13] By contrast, Mr Jordan says that by 7 July 2021 Mr Davy had been complaining about his fingers "for the last few weeks". Mr Jordan says Mr Davy was asked on several occasions whether he had sought medical advice but that his answer was always no. On at least one occasion Mr Davy's answer was that he was "not sitting up at Out Patients on his [own] time", to which Mr Jordan says "with that response my care factor dropped off."

• [14] On Mr Davy's evidence he attended work on 7 July 2021 and at this stage his hand was discoloured, numb and in pain. He says he had the following conversations with Mr Jordan:

"Kane Davy: Have a look at my hand, can we organise someone to have a look at it?

Andrew Jordan: What are they going to do? It's too late.

Kane Davy: Well it's not too late if you're not going to let me get it looked at I'll give you two weeks notice now and take this further.

Andrew Jordan: I'm not going to argue with you about it.

Kane Davy: Do you want that two weeks' notice in writing or what?

Andrew Jordan: You're going to have to give two weeks written notice to Sam when he gets back from holidays.

• [15] Mr Davy continued work for another 15 minutes but then left the workplace and sought medical treatment for his hand. Mr Davy attended Casino Memorial Hospital and was referred on to a vascular surgeon. On the same day he made an appointment to see a hand specialist, Dr David Graham, at Mudgeeraba Hand Clinic.

• [16] Mr Davy returned to work the next day, 8 July 2021 with a medical certificate indicating that he was fit for work and required no adjustments to his duties.

• [17] On 13 July 2021 Mr Davy lodged a workers compensation claim in order to obtain a clam reference number to use at his appointment with Dr Graham on 15 July 2021.

• [18] On 14 July 2021 Mr Davy and Mr O'Connor had a heated phone conversation followed by a heated SMS exchange that culminated in Mr O'Connor sending an SMS to Mr Davy in the following terms:

"You are off work tomorrow and have been refused workers competition (sic) from what I understand. You are not working from today on as you have clearly stated you will b goin (sic) further.

You don't have a job or will you be paid anything until we go to court mate.

Sorry it has ended this way...... I put faith in you when you were in rehabilitation......"

• [19] Mr Davy attended his appointment on 15 July 2021 but did not return to work again. Over the next few days Mr O'Connor sent Mr Davy further SMS messages inviting him to contact Mr O Connor to "sort it out".

• [20] The question in this case is whether Mr Davy was terminated at O'Connor Sawmill's initiative, or alternatively, whether he was forced to resign his employment because of conduct or a course of conduct engaged in by O'Connor Sawmilling.

• [21] An employer is generally able to treat a clear and unambiguous resignation as a resignation.[3] The onus is on the employee to prove that they did not resign voluntarily.[4]

• [22] In circumstances where an employee asserts that they were forced to resign it falls to the employee to persuade the Commission that they did not resign voluntarily and to establish that the employer forced the employee's resignation by identifying action on the part of the employer which brought the relationship to an end or action that had that probable result.[5]

• [23] The cessation of Mr Davy's employment was initiated on either 7 July 2021 when Mr Davy said the words "I'll give you two weeks' notice now and take this further" or on 14 July 2021 when Mr O'Connor sent his SMS that included the words "you don't have a job or will you be paid anything until we go to court mate."

• [24] The key words said by Mr Davy on 7 July 2021 (ie "I'll give you two weeks' notice now and take this further") were largely unprovoked. On Mr Davy's version of the conversation Mr Jordan had said to him "what are they going to do? It's too late" to which Mr Davy replied "well it's not too late if you're not going to let me get it looked at give you two weeks notice now and take this further".

• [25] On one view, Mr Davy's resignation was conditional, being that "if [O'Connor Sawmilling is] not going to let [him] get it looked at" then he would resign. The words "if you're not going to let me..." are central to Mr Davy's claim. It might be said that Mr Davy resigned because O'Connor Sawmilling refused to allow him to seek treatment.

• [26] However, Mr Davy has not established that O'Connor Sawmilling denied him any opportunity to seek treatment.

• [27] In fact both Mr O Connor and Mr Jordan gave evidence that they allowed Mr Davy time off - which directly contradict this notion. On the day of the injury (3 June 2021), and in response to a question from Mr Davy, Mr O'Connor indicated that if the hand was "not right" the next day that Mr Davy's duties could be covered by another employee. I also accept the evidence of Mr Jordan that in the weeks between 3 June 2021 and 7 July 2021 Mr Jordan had in fact suggested to Mr Davy that he seek medical advice but that Mr Davy had chosen not to do so, or at least chosen not to spend his own time waiting in a hospital Emergency Department. On the day of the resignation (7 July 2021) Mr Davy left of the workplace with Mr Jordan's permission and had medical treatment during work time.

• [28] If the words of resignation were objectively unambiguous, and not conditional, then I should not be "astute to find otherwise". In Koutalis v Pollett (2015) 235 FCR 370, [2015] FCA 1165 Justice Rares made the following observations:

"[43] "The question whether a resignation did or did not occur does not depend upon the parties' subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis' business' premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179, Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

This Court, in Pacific Carriers Ltd v BNP Paribas [[2004] HCA 35; [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462]. (emphasis added)

[44] In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee's employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:

In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight. (emphasis added)"

• [29] That is, if an employee resigns their employment in clear terms that an employer would objectively and reasonably understand to mean that the employee is initiating the end of the employment, and there is nothing in the context or the surrounding circumstances to indicate that the Commission should look behind the resignation to see if it was freely given, then the Commission cannot and should not intervene.

• [30] Mr Davy might now regret his decision to give two weeks' notice - he hasn't said either way. He might have placed himself in a more difficult position because of his decision to resign. His decision might have been sensible or silly - but it was his own.

• [31] In this matter I do not find that there was any other element in the exchange between Mr Davy and Mr Jordan, or the surrounding circumstances, that would suggest that the words of resignation used by Mr Davy on 7 July 2021 were anything other than a resignation by him giving two weeks' notice. In this regard I find that Mr Davy's employment ceased at Mr Davy's initiative and by his resignation.

• [32] For completeness I do not find that Mr Davy was forced to resign his employment because of conduct or a course of conduct engaged in by O'Connor Sawmilling. O'Connor Sawmilling did not prevent Mr Davy from seeking medical treatment, in fact O'Connor Sawmilling made it clear that Mr Davy should seek treatment. On any view of the evidence it could not be found that O'Connor Sawmilling engaged in conduct with the intention of bringing the employment to an end or that Mr Davy's resignation was the probable result of the employer's conduct such that he had no effective or real choice but to resign.

• [33] Dealing shortly with the specific case advanced by Mr Davy that it was Mr O'Connor who initiated the cessation of the employment by SMS on 14 July 2021, and applying the objective test of what a reasonable person in Mr Davy's position would have understood his message to mean, I cannot find that a dismissal occurred on that occasion.

• [34] Mr O'Connor's reference in his SMS to Mr Davy "taking the matter further and going to court" was undoubtedly a reference to the words Mr Davy had used the week before - i.e. that he will "take this further".

• [35] It is possible that Mr O'Connor cut short the two week notice that Mr Davy had given the week before, however, I don't think I can consider the words "you don't have a job" in the SMS without considering the earlier part of Mr O'Connor's message that says "you are not working from today on as you have clearly stated you will b goin (sic) further". These two statements together are a reference to Mr Davy not doing any more work for O'Connor Sawmilling at his own initiative because he had resigned the week before.

• [36] In the circumstances, the only available conclusion is that Mr Davy was not "a person who has been dismissed", which means he was not entitled to make an application under s.365 of the FW Act, and that the Commission has no jurisdiction to deal further with his application or to issue a certificate under s.368.

• [37] As such, Mr Davy's application must be dismissed.[6]

[1]Ward v St Catherine's School [2016] FCA 790 at [3].

[2] [2017] FWCFB 3941; (2017) 271 IR 245 at 268-9, [2017] FWCFB 3941 at [47]- [48].

[3] Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005 at [12] citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at 361‒362, [1995] IRCA 315.

[4] Australian Hearing v Peary (2009) 185 IR 359, [2009] AIRCFB 680 at [30].

[5] Rick Adaszko v Mitford Investments Pty Ltd [2021] FWCFB 719 at [27].

[6] PR737191.

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