Fair Work Act 2009

s.394 - Unfair dismissal

Application made pursuant to s.394 of the Fair Work Act 2009 for an unfair dismissal remedy - no dismissal - Application dismissed.

• [1] Mr Kerim Calhan has made an unfair dismissal application against Realsurv Engineering Surveyors Pty Ltd (the Respondent) requiring a determinative conference, at which his evidence was received, along with evidence from Mr David Soale (Director of the Respondent) and Mr Sean McDowell (Senior Surveyor for the Respondent). The application satisfies s.396(a) of the Fair Work Act 2009 (the Act) in that it was made within the 21-day period after the alleged dismissal took effect. In addition, I am satisfied that Mr Calhan is a person protected from unfair dismissal because he had completed the applicable minimum employment period and the sum of his annual rate of earnings was less than the applicable high-income threshold (s.396(b)). Further, it is not contended, and nor do I consider that the Respondent was a small business employer at the material times, such that I am not required to determine whether the dismissal was consistent with the Small Business Fair Dismissal Code (s.396(c) and s.385(c)). Finally, as it was not claimed by the Respondent, and the material before me does not suggest, that the dismissal was a case of "genuine redundancy" within the meaning of s.389 of the Act, I am satisfied that the dismissal was not a case of "genuine redundancy" (s.396(d) and s.385(d)). Accordingly, in order for Mr Calhan's unfair dismissal application to succeed, he is required to satisfy the Commission he was dismissed (s.385(a)) and that his dismissal was harsh, unjust or unreasonable (s.385(b)).

• [2] Mr Calhan commenced full time employment with the Respondent as an Engineering Surveyor on 5 March 2024. He said that he had taken the job with the Respondent so that he could work on the level crossing removal project at Diggers Rest which was projected to run for two years. Mr Calhan was paid a base hourly rate of $65 and had stipulated 'normal' hours of work from 7.00am - 3.30pm, inclusive of breaks. In reality, however, Mr Calhan worked longer hours during his employment and Mr Soale confirmed this, further stating that Mr Calhan regularly requested additional hours of work so that he could maximise his income.

• [3] A telephone conversation between Mr Calhan and Mr Soale took place on Monday 5 May 2025. Two contrasting versions of this telephone conversation were put before the Commission. Mr Calhan said that Mr Soale told him that there was a lack of work, that his employment would end on Friday 9 May 2025 on the basis of "last-on-first off", that his outstanding entitlements would be paid out and that he was required return all company property.

• [4] Mr Soale, on the other hand, said that he explained to Mr Calhan that there would be less work available going forward and that as a result, he would only be able to offer Mr Calhan his minimum contracted hours of work and it was likely that he would have to let him go in the near future because of the slowdown in work. Mr Soale claimed that knowing Mr Calhan wanted to maximise his earnings, he offered him the alternative of resigning immediately if he wanted to seek work elsewhere and if he wanted to take up this option, he would pay Mr Calhan for both the balance of the week of 5-9 May 2025 and his 4-week notice period without requiring him to attend for work. Mr Soale also stated that he offered to assist Mr Calhan in securing another job. Mr Calhan denied that these alternatives were put to him whereas Mr Soale said that Mr Calhan told him that he accepted the offer that involved tendering his resignation.

• [5] As to what transpired after this, Mr Calhan said that he contacted his former employer, Auspat Land Survey (Auspat), on Tuesday 6 May 2025. He said that he was able to secure casual employment with Auspat commencing on Monday 12 May 2025 as a result of having done so. Mr Calhan also said the return of the Respondent's property was completed on Wednesday 7 May 2025 and that he exchanged text messages with Mr Soale on Thursday 8 May 2025. These text messages were initiated by Mr Soale, who requested "Hey mate can you give us a ring when you've got a minute. Just need to finalise a few things to close out employment. Cheers." When Mr Calhan advised in reply that he could not telephone him, Mr Soale sent a second text message seeking confirmation as to when Mr Calhan was planning on sending confirmation of his resignation. To this, Mr Calhan replied by texting "You already confirmed my termination on Monday for this Friday." Mr Soale then responded by texting "Yeah that's fine mate just need it confirmed in writing that's all." Mr Calhan closed off this thread of text messages by advising he would send an email the following day.

• [6] Mr Calhan sent the foreshadowed email to Mr Soale on Friday 9 May 2025. He advised that all company property had been returned and stated, "Today is my last day with Realsurv, as confirmed by you over the phone on Monday." The email went on to itemise various claims for payment which included a redundancy component. By Tuesday 13 May 2025, Mr Calhan was requesting copies of the 'dockets' he had previously submitted and a spreadsheet detailing the hours he had worked during his employment with the Respondent. Mr Soale's responses on Wednesday 15 May 2025 and Thursday 16 May 2025 included the forwarding of the outstanding dockets and the advice that Mr Calhan could access his timesheets and payslips through the 'Xero' system and the 'Xero me app.' Mr Calhan and Mr Soale also exchanged text messages from 13 May 2023 until 16 May 2025 and these reveal that Mr Calhan was seeking "the full payment" and "the full amounts owing", while Mr Soale wanted to discuss matters. With Mr Calhan having advised that he "was not in a position to take calls at the moment", Mr Soale's response by text message on Friday 16 May 2025 read as follows:

"Hey mate would be much easier if we could chat on the phone. Long story short as you haven't been terminated and you haven't officially resigned yet either, as was briefly discussed on the phone last Monday (still awaiting your letter of resignation as discussed via text). You will need to attend the office Monday as you are still currently employed by Realsurv. Thanks"

• [7] On Sunday 18 May 2025, Mr Calhan sent Mr Soale a letter of demand by email in which he asserted that during their telephone conversation on 5 May 2025, Mr Soale had advised him that his employment was ending due to lack of available work, that his last day would be Friday 9 May 2025 and that he (Mr Soale) would pay out his (Mr Calhan's) final entitlements as a lump sum. Mr Calhan also asserted that he had returned all company property "as requested." The Respondent sent a response to Mr Calhan through a letter from its lawyers dated 23 May 2025. This letter contained the assertion that Mr Calhan had resigned from the Respondent with effect on 9 May 2025 through his letter dated 18 May 2025.

• [8] Mr McDowell gave evidence that he worked with Mr Calhan on the Barwon Heads Road upgrade project from late March 2025 until late April 2025. He said that during this period, Mr Calhan told him that he was looking for other work and had intentions of leaving. Specifically, Mr McDowell said that during the period 14-18 April 2025, Mr Calhan had sought his permission to attend a telephone job interview, which he granted. Mr Calhan agreed that he had participated in a telephone call but did not characterise it as a specific job interview. Mr Calhan said it was more of a generalised discussion with industry peers during one of his breaks through which he sought to understand whether he could seek alternative employment. He said the conversation covered their projects, the work they had available and whether there was an opportunity to work together in the future.

• [9] As to this evidence, Mr McDowell said that the understanding he took from Mr Calhan's request was that he had a job interview and moreover, when he later asked Mr Calhan how the interview had gone and whether he had obtained the position, Mr Calhan told him that nothing had come of it. Mr Calhan could not recall whether this latter conversation had taken place. I asked Mr McDowell whether he had had any other conversations with Mr Calhan which involved Mr Calhan disclosing an intention to leave for work elsewhere. Mr McDowell confirmed that while they worked together on the Barwon Heads Road upgrade project, there had been. Mr Calhan did not deny engaging in such dialogue with Mr McDowell. Mr McDowell also said that Mr Calhan had told him that he had previously been intimidated by Mr Soale's micro-management of him, that he was "over" this style of management and that he was ready to take other offers because of it. This evidence brought into focus the working relationship of Mr Calhan and Mr Soale.

• [10] In relation to his working relationship with Mr Soale, Mr Calhan said that they did not get along and regularly clashed and he characterised it as having been transactional and antagonistic. Mr Calhan had formed the opinion that Mr Soale did not like him and expressed his frustration at having been moved off the Diggers Rest project because the opportunity to work on that project had motivated him to join the Respondent from Auspat. He was also displeased by his assignments after having been moved. Despite describing his relationship with Mr Soale as having gone sour, Mr Calhan stated that he had been intent on remaining with the Respondent until something else came his way.

• [11] Mr Soale considered his working relationship with Mr Calhan to be professional. While he conceded that he may have micromanaged Mr Calhan during his probationary period, he explained that this was not for personal reasons but rather, because he wanted to see how Mr Calhan measured up. Mr Soale also acknowledged that Mr Calhan had wanted to stay on the Diggers Rest project but said that it was necessary to move him on because of performance issues, which included an incident during which Mr Calhan yelled at a client. Apart from having to consider the continuing capacity of the Respondent to absorb the cost of employing him, Mr Soale did not express concern about retaining Mr Calhan as an employee. He said that had Mr Calhan elected to take up the option of remaining, the Respondent would have been prepared to absorb the ongoing cost of employing Mr Calhan on his minimum contracted hours for at least another 3-6 months before having to consider redundancy. Mr Soale explained that in the short term, the available billable work would have been sufficient to cover approximately 70-80% of the cost of Mr Calhan's ongoing employment.

• [12] If Mr Calhan was not dismissed by the Respondent within the meaning of s. 386(1) of the Act, there is no jurisdictional basis for him to pursue an unfair dismissal application. More specifically, if Mr Calhan's employment was not terminated at the initiative of the Respondent, or if my finding is that he was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for him to pursue his unfair dismissal application.

• [13] I am satisfied that as of 5 May 2025, Mr Calhan was considering his options and was very much open to moving on from his employment with the Respondent. He told Mr McDowell that he was "over" Mr Soale's management style and ready to take other offers. Things had not worked out for Mr Calhan in relation to the level crossing removal project at Diggers Rest. His initial expectations regarding wages and conditions had not materialised and he was, in any event, subsequently removed from that project by Mr Soale. Mr Calhan was further aggrieved about his subsequent working arrangements and his dealings with the Respondent regarding parental leave. Mr McDowell impressed me as a credible witness. While he was visibly uncomfortable disclosing Mr Calhan's views about his working relationship with Mr Soale in the presence of Mr Soale, Mr McDowell answered questions directly and his account was consistent and unchallenged. I accept Mr McDowell's evidence that prior to 5 May 2025, he was told by Mr Calhan that he (Mr Calhan) was looking for work elsewhere. In particular, I prefer Mr McDowell's evidence that Mr Calhan had sought permission for time off work for a job interview. I do not consider Mr Calhan's account that he was simply seeking permission to have a generalised conversation with another employer during a work break about projects and the availability of work is credible. Further, Mr Calhan's inability to recollect whether Mr McDowell had asked him how his job interview had gone was unconvincing. It lay in stark contrast to his capacity to recall the aspects of the factual background that supported his various propositions.

• [14] I am satisfied that Mr Soale offered Mr Calhan the option of remaining in ongoing employment. I consider it unlikely that Mr Soale would have felt moved to offer Mr Calhan ongoing employment for a further 3-6 months knowing that there would be no commercial gain in doing so and that Respondent would be required to absorb the cost if he had regarded their relationship as fractured and dysfunctional. That Mr Soale maintained that he could have seen Mr Calhan's employment enduring for a further 3-6 months despite Mr Calhan's frank and somewhat unflattering testimony in relation to his management style and the state of their working relationship fortifies me in reaching this conclusion.

• [15] While Mr Calhan referenced the cessation of his employment as a termination on and from 8 May 2025, Mr Soale simultaneously referred to it as a resignation scenario for which he sought Mr Calhan's written confirmation and maintained this position throughout their correspondence. Having regard to the context I have outlined above, I am satisfied that it is more probable than not that the two options were presented to Mr Calhan on Monday 5 May 2025 and that Mr Calhan accepted the option of resigning with the payment of 5 weeks' salary, without the requirement to perform further work for the Respondent after that day. To his credit, Mr Calhan then took steps to secure new employment and was fortunate enough to secure some almost immediately. By 30 June 2025, this new employment had materialised into an ongoing fulltime position with options to work on various projects and the availability of shift work payable at $90 per hour. I consider Mr Calhan's return of the Respondent's property on 7 May 2025 was consistent with him having tendered his resignation on 5 May 2025. I also consider it unlikely that Mr Calhan would have had continuing access to his timesheets and payslips through the Respondent's 'Xero' system and the 'Xero me app' after 9 May 2025 if he had been terminated on the Respondent's initiative.

• [16] For the reasons outlined above, I am not persuaded that Mr Calhan's employment was terminated at the initiative of the Respondent (s.386(1(a)). As to whether there has been a dismissal within the meaning of s.386(1)(b) of the Act, the test to be applied is whether the Respondent engaged in conduct with the intention of bringing Mr Calhan's employment to an end or whether termination of the employment was the probable result of the Respondent's conduct such that Mr Calhan had no effective or real choice but to resign. In this case, I do not consider that it was the Respondent's intention to bring the Applicant's employment to an end because I have been persuaded that Mr Soale offered Mr Calhan the alternative of ongoing employment. Nor do I consider the Mr Calhan's resignation was the probable result of the Respondent's conduct such that he had no effective or real choice but to resign because Mr Soale had confirmed the availability of ongoing employment in accordance with the terms of Mr Calhan's contract of employment. While I accept that this alternative came with a caveat from Mr Soale that the ongoing employment was likely to be relatively short-lived, there was no actual deadline enunciated and nor were any foreshadowed limitations notified that were inconsistent with Mr Calhan's contractual entitlements.

• [17] Whereas s.385(a) of the Act requires the Commission to be satisfied Mr Calhan was dismissed, I uphold the Respondent's objection to his unfair dismissal application because I am satisfied that there was no dismissal within the meaning of s.386 of the Act. I have concluded there was no termination of Mr Calhan's employment on the Respondent's initiative because I am satisfied he intended to resign his employment on 5 May 2025. Further, having regard to the circumstances of this case, I have not been persuaded that Mr Calhan's resignation was "forced". I have not been persuaded that the Respondent engaged in conduct or a course of conduct with the intention of bringing the employment to an end or that the termination of the Mr Calhan's employment was the probable result of the Respondent's conduct such that he had no effective or real choice but to resign. The effect of upholding the jurisdictional objection of the Respondent that Mr Calhan was not dismissed is that I am satisfied there was no harsh, unjust or unreasonable dismissal (s.385(b)). It follows that I have not been persuaded that Mr Calhan has been unfairly dismissed. His application fails and must therefore be dismissed. Given this conclusion, I will not issue an Order.

Mr D Soale for RealSurv Engineering Surveyors Pty Ltd.

Printed by authority of the Commonwealth Government Printer