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[2002] AIRC 734
procedural. The jurisdictional objection was not accepted on the evidence then available. The Commission found that, on balance, termination appeared to be at the employer's initiative and referred the file...
The Commission had to decide whether Johnson's resignation was genuinely her own choice or whether the ABS's conduct effectively brought her employment to an end. It rejected the idea that constructive dismissal requires an explicit threat to sack an employee. Looking at the sequence of decisions, the evidence about the manager's role and the refusal of further leave without pay, it found that the resignation appeared to be employer-initiated. This was only a jurisdictional decision. The Commission did not decide whether the dismissal was unfair or determine the substantive application, instead referring it for conciliation.
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2,588 words · generated 01/10/2026
This decision concerns a preliminary jurisdictional objection, not the ultimate merits of an unfair termination application. Laurel Leigh Johnson applied under s 170CE of the Workplace Relations Act 1996 (WR Act) for relief in respect of the termination of her employment with the Australian Bureau of Statistics (ABS). The ABS argued that the Commission lacked jurisdiction because Johnson had resigned, rather than having her employment terminated at the employer's initiative: [1]-[3], [15].
2 cited instruments linked from this judgment.
Johnson started at the ABS's Western Australian office in November 1999. After successive promotions, she became a Graduate Administrative Assistant on an ongoing basis in February 2000: [5]. She later received a temporary transfer to the Victorian office to accompany her spouse, initially for the period 14 August to 29 December 2000. Her transfer was extended, and she was promoted to APS 3 on her last day in Western Australia: [6]. In Victoria she worked at the National Centre for Crime and Justice Statistics (NCCJS), and at times performed higher duties at APS 4 or APS 5: [7].
In August 2001 Johnson sought a permanent transfer to Victoria because her spouse's Melbourne work had become permanent. The application was refused, and her temporary transfer was extended only to 31 October 2001: [8]. She then applied for APS 4 or APS 5 roles in an October bulk-fill process but did not obtain a position. She ceased working in the Victorian office on 31 October: [9].
Johnson took leave without pay from November 2001 while seeking an internal review of the transfer decision. In February 2002 the ABS told her that the leave would cease on 15 March and that she was expected to resume work in Western Australia on 18 March. The ABS would not approve further leave: [10], [17]. Johnson resigned by email on 15 March. Her email said she was resigning because she had been advised that not doing so might be treated as abandonment of employment, and that abandonment was not her intention: [26]-[27].
Her account included allegations that her senior manager, Mr Libreri, had acted with personal bias and used his influence against her. She pointed to changed performance assessments, the refusal of her transfer, his involvement in the bulk-fill process, and his alleged influence over referee reports: [23]-[25], [53]-[56]. The ABS did not call Mr Libreri to give evidence at the jurisdictional hearing. It relied on an affidavit from Ms O'Connor, whose evidence was not contested: [16], [43].
The Senior Deputy President found that, on the evidence then before the Commission, termination appeared to have been at the employer's initiative. The file was referred for conciliation: [69]. The decision did not decide whether the termination was unfair or establish the substantive merits of Johnson's application.
The Commission began with the statutory threshold. Section 170CE required the employment to have been “terminated by the employer”; without that, the Commission had no jurisdiction to grant relief under the relevant division: [32]. The issue was therefore not simply whether Johnson had sent a resignation email. It was whether the circumstances made the termination one at the employer's initiative.
The Commission adopted the factual approach stated by the Full Bench in ABB Engineering Construction Pty Ltd v Doumit: a resignation may be treated as employer-initiated where the employer's conduct directly or consequentially results in termination, and the employee would have remained employed but for that conduct and had “no effective or real choice but to resign”: [33]. It also considered Mohazab and the later discussion in Pawel about the necessary connection between employer conduct and resignation: [34]-[35]. The Commission did not treat the issue as answered merely because the employee's decision followed an employer action.
A central legal point was the rejection of the ABS's proposed narrow test. Counsel argued that constructive dismissal required something like an ultimatum, such as “resign or be sacked”: [30]. The Commission considered that formulation too restrictive. It adopted the proposition from Jackson & Wilson v Monadelphous Engineering Associates that intolerable conditions could amount to constructive dismissal even without a purpose to force resignation, and agreed with a prior Commission view that this broadened Mohazab: [36]-[37]. The Commission then stated its own formulation: if the employer knowingly imposes a condition of continued employment that the employee cannot meet, as a prelude to termination, the employer may be instrumental in bringing employment to an end: [39].
The assessment of the facts was significant. The ABS was entitled to run its business in its interests and was not required to create a vacancy or approve a transfer to accommodate Johnson's domestic arrangements. It could also require her to perform the employment contract as agreed: [67]. But those general propositions did not settle whether the decisions in her particular circumstances reflected business interests or another purpose.
The Commission noted that the ABS did not give direct evidence explaining the refusal of the permanent transfer. The recorded reason was that Johnson's “qualifications, skills and interests” did not meet the Centre's or Victorian office's specific requirements: [47]. That explanation appeared difficult to reconcile with her prior higher-duties work, assessments and July 2001 “Outstanding” performance rating: [49]-[51]. The Commission also considered the absence of evidence from Mr Libreri, who had been involved in the transfer and bulk-fill decisions and was said to have influenced referees: [52]-[56].
The treatment of that absence was not automatic. The Commission set out the Jones v Dunkel principle and the qualifications on drawing an adverse inference, including the need for objective facts and the distinction between inference and speculation: [58]-[63]. It concluded that counsel's view that Mr Libreri's evidence was unnecessary did not explain why an adjournment was not sought once it became apparent that the Commission might take a broader view of constructive dismissal: [60]. It considered it open to infer that his evidence would not have assisted the respondent: [61].
The Commission then assessed the objective material together: Johnson's performance record, the timing and reasons for the transfer refusal, Mr Libreri's role in the selection process, the bulk-fill outcome, and the absence of evidence explaining why further leave without pay was refused: [64]-[66]. It concluded that the outcome could not be explained by performance or budgetary constraints on the evidence available. It found that Mr Libreri wanted Johnson out of the Victorian office, knowing that she would not return to Western Australia: [65]-[66]. The refusal of further leave then made resignation, in the Commission's view, inevitable in her circumstances: [68].
The conclusion remained expressly provisional in an important sense. The Senior Deputy President described the evidentiary state as unsatisfactory and said that the respondent could put further facts before the decision-maker if the substantive application proceeded: [69]. Thus the ruling addressed jurisdiction on the material before the Commission, not all possible factual or legal questions.
The statutory setting identified in the judgment was Part VIA, Division 3, s 170CE of the WR Act. The statute required the employment to be “terminated by the employer” before the Commission could grant the requested relief: [1], [32]. Section 170CEA also required the Commission to deal with a qualifying jurisdictional motion before taking further action on the application, subject to the statutory qualification set out in the section: [40].
The decision did not purport to replace the earlier authorities. It described ABB Engineering Construction Pty Ltd v Doumit as stating that the initiative question is ultimately factual and depends on the circumstances of the individual case: [33]. It also recounted the “principal contributing factor” formulation in Mohazab, the doubt later expressed about that test in Pawel, and the proposition in Monadelphous that intolerable conditions need not have been imposed with the purpose of forcing resignation: [34]-[37].
The contribution of this decision, on its face, was to reject an ultimatum-only approach in the particular statutory context. The Commission considered that employer conduct could be instrumental in a resignation even if the employer had not said expressly that the employee must resign or be dismissed. The focus was on the condition imposed, its relationship to continued employment, whether the employee could meet it, and the surrounding circumstances: [39], [67].
The decision also illustrates that the inquiry may extend beyond the final communication or resignation letter. The Commission examined the events leading up to resignation, including the transfer process, recruitment decisions and leave arrangements: [41], [45]. It expressly recognised that a jurisdictional challenge can require examination of facts that also go to the merits of the claim: [41].
The supplied judgment contains no later decisions or legislative history. It therefore does not establish what happened to the WR Act provisions after this decision or how later courts or tribunals treated Johnson. The legal account here is confined to the authorities and statutory provisions discussed in the judgment itself.
At [33], the decision quotes the test in ABB Engineering Construction Pty Ltd v Doumit: an employee must have had “no effective or real choice but to resign” because of the employer's conduct. In plain English, the question is not only who sent the resignation. It is also whether the employer's conduct brought about the end of the relationship and whether the employee could realistically have stayed employed without that conduct.
At [39], the Senior Deputy President states that an employer may be instrumental in ending employment if it knowingly imposes a condition of continued employment that the employee cannot meet. The passage rejects the proposition that an explicit threat to dismiss is indispensable. It does not mean every refusal of a requested benefit makes a later resignation employer-initiated. The judgment's formulation concerns a condition of continued employment imposed as a prelude to termination.
At [67], the Commission recognises two propositions together. An employer may organise its business and need not create a vacancy or approve a transfer to fit an employee's domestic arrangements. However, where the facts do not reveal a business-based decision and are consistent with an ulterior purpose, the Commission may find that the employer made conditions intolerable and forced an involuntary resignation. The passage explains why the Commission considered motive and surrounding decisions relevant, rather than treating the employment contract's original location as conclusive.
At [58]-[63], the reasons explain the evidentiary principle commonly called the rule in Jones v Dunkel. A failure to call a witness may, in appropriate circumstances, support an inference that the evidence would not have assisted the party who could have called that witness. The inference is not automatic and cannot replace objective facts. The Commission applied that caution by first identifying the evidence about Mr Libreri's role and the applicant's performance before drawing conclusions: [61]-[65].
At [69], the Senior Deputy President says that “on balance” termination was at the employer's initiative, but immediately limits the effect of that conclusion. The evidence was unsatisfactory and further evidence could be considered if the matter proceeded. In practical terms, this was a threshold ruling to allow the application to proceed to conciliation, not a final finding on the merits.
The decision is most relevant to a fact pattern in which an employee resigns after a sequence of employer decisions, and the dispute is whether those decisions left the employee with a real choice to remain employed. It highlights the importance of identifying the employment arrangement as it stood, the employer's stated requirements, the actions that preceded the resignation, and the connection between those actions and the employee's departure: [33], [39], [45].
The particular combination before the Commission included a substantive position in one location, a temporary transfer to another, a refused permanent transfer, unsuccessful applications for positions in the second location, an end date for unpaid leave, and an expectation that the employee return to the original location: [5]-[10]. Those facts mattered alongside the evidence about performance, the reasons offered for the transfer refusal and the manager's role in selection: [47]-[56], [64]-[68].
The judgment does not establish that every unsuccessful transfer or job application, or every refusal of additional leave, amounts to employer-initiated termination. Indeed, it expressly accepts that an employer need not create a vacancy or approve a transfer for an employee's domestic convenience: [67]. The potentially relevant feature was the combined sequence and the Commission's factual findings about the reasons for the decisions and the circumstances in which the employer required a return to Western Australia.
For analysis of a different matter, the decision points to questions about what condition the employer imposed, whether it was genuinely a requirement of continued employment, whether the employee could meet it, what alternatives were available, and whether the employer's conduct caused the resignation. It also shows why contemporaneous records and evidence from the people who made or influenced the relevant decisions may matter. These are questions suggested by the reasoning, not conclusions about any other case.
The supplied judgment contains no later judicial or tribunal decisions applying, distinguishing, approving or rejecting Johnson. Later treatment therefore cannot be reliably described from this source alone.
The authorities that Johnson itself discusses are earlier authorities. The Senior Deputy President applied the factual approach in ABB Engineering Construction Pty Ltd v Doumit and relied on the principles in Jones v Dunkel and G v H when considering the absent witness: [33], [58]-[63]. The decision agreed with Hall v Leader Transport that the Monadelphous passage arguably broadened the Mohazab approach: [36]-[37]. It also referred to Lloyd, Patience and Curcio as Commission decisions where employer conduct had been held instrumental in ending employment: [38].
Those references describe the reasoning available to the Commission in June 2002. They should not be treated as evidence of later treatment of Johnson itself. Assessing subsequent authority would require later decisions or legal sources not included in the material provided.
The most immediate qualification is evidentiary. The Senior Deputy President stated that the evidence was unsatisfactory and that the respondent could present additional facts if the substantive application proceeded: [69]. The decision therefore does not disclose whether further evidence was later given, whether the Commission ultimately decided the merits, or whether the jurisdictional issue was revisited.
The reasons also leave the reach of the constructive-dismissal formulation dependent on facts. Paragraph [39] refers to an employer knowingly imposing an unmeetable condition as a prelude to termination. Paragraph [67] refers to facts inconsistent with business interests and consistent with an ulterior motive. The decision does not comprehensively define what evidence is sufficient to establish those elements in other settings.
A related issue is how to distinguish a genuine operational requirement from a condition imposed for another purpose. The Commission accepted that the employer was not obliged to provide a Victorian position, but found the explanation given for refusing Johnson's transfer difficult to accept in light of her performance history and the other material: [47]-[51], [65]-[67]. The judgment does not supply a general test for weighing such evidence beyond examining the circumstances as a whole.
Finally, the decision states that an early jurisdictional objection can require examination of facts going to the merits, and advises employers to weigh the advantages and disadvantages of raising such an objection early: [41]. It does not resolve how that practical tension would operate in other proceedings or how subsequent procedural developments may have affected it. No later-treatment conclusion can be drawn without additional authorities.
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s.170CE application for relief in respect of termination of employment
Termination of employment - jurisdiction - whether termination at the initiative of the employer.
[1] This matter arises out of an application under Part VIA Division 3, s 170CE of the Workplace Relations Act 1996 (WR Act). Ms. Laurel Leigh Johnson (applicant) has applied to the Commission for a remedy in respect of the termination of her employment.
[2] A conciliation conference in the Commission was listed before Mr K Turbet on 28 May 2002. However, the Australian Bureau of Statistics (respondent) raised a jurisdictional objection to the application and requested that the issue be referred to a callover before the Commission.
[3] The jurisdictional objection raised by the respondent is that the applicant's employment was not terminated at the initiative of the respondent. It has been allocated to me for hearing and determination.
[4] In the matter before me Mr D O'Donovan of counsel appeared by leave on behalf of the respondent. The applicant appeared on her own behalf.
[5] On 15 November 1999, the applicant commenced employment at the Western Australian office of the Australian Bureau of Statistics as an APS 1 on a "non-ongoing contract". One month later, the applicant was promoted to the level APS 2 on a non-ongoing contract. In February 2000, the applicant was placed in the position of Graduate Administrative Assistant on an ongoing basis.
[6] In March 2000, the applicant requested a temporary transfer to the Victorian office of the Australian Bureau of Statistics for 12 months in order to accompany her spouse to Melbourne. The Victorian office granted the temporary transfer for the period 14 August 2000 to 29 December 2000. On the applicant's last day in the West Australian office, she was promoted to the level APS 3.
[7] In the Victorian office, the applicant worked in the National Centre for Crime and Justice Statistics (NCCJS). At various times during her employment in this office, the applicant was placed on higher duties, as either an APS 4 or APS 5. On 30 July 2001, her higher duties allowance was cancelled and she continued working as an APS 3 in the Victorian office.
[8] On 27 August 2001, the applicant applied for a permanent transfer to the Victorian office. The applicant sought this transfer because her spouse's one-year temporary transfer to a Melbourne law firm had been made permanent. However, the applicant's application for transfer was denied and she was informed that her temporary transfer would be extended to no later than 31 October 2001.
[9] In October 2001, a "bulk fill" process was carried out in the Victorian office and the applicant applied for a permanent APS 4 or APS 5 position. In the proceedings before me, the applicant said that she was not aware of how many positions were available at the APS 4 and APS 5 level as part of the bulk fill process. In any case, the applicant was not successful in securing a position in this process and, as a result, ceased working in the Victorian office on 31 October 2001.
[10] Between 1 November 2001 and 14 March 2002, the applicant took leave from work without pay in order to seek an internal review of the decision of the respondent not to grant her a permanent transfer to the Victorian office. On 18 February 2002, the respondent wrote to the applicant and informed her that her approval for leave without pay would cease on 15 March 2001 and that it was expected that she would resume work in the Western Australian office on 18 March 2002. The respondent was not prepared to allow the applicant any further leave without pay.
[11] On 15 March 2002, the applicant tendered her resignation to Mr Dave Roarty, Director of Corporate Services in the respondent's Western Australian office, via email.
[12] In September 2001, the applicant sought review under the Public Service Regulations 1999 (the regulations) of a number of decisions made by the respondent in respect of her employment, including the denial of her application for a permanent transfer to the Victorian office. Ms Lyn Tucker, Assistant Director, Financial and Facilities Management, Coordination and Planning was appointed to consider and investigate the matters that the applicant raised in her application for a review.
[13] In November 2001, the respondent informed the applicant that the decision to deny her application for a permanent transfer to the Melbourne office was not reviewable.
[14] The applicant applied to the Merit Protection Commissioner for a review of the decision of the respondent based, as it was, on the report of Ms Tucker. At the secondary review carried out by the Merit Protection Commissioner on 21 January 2002, the Office of the Merit Protection Commissioner found that the respondent's decision did not fall within the scope of reviewable matters under the regulations.
[15] The jurisdictional objection raised by the respondent was that the applicant's employment was not terminated at the respondent's initiative because the applicant resigned from her employment.
[16] During the proceedings before me, the respondent tendered an affidavit affirmed by Ms Jennifer O'Connor[1], a member of the People Management Advisory Unit of the Australian Bureau of Statistics, Canberra. The affidavit was lodged with the Commission on 17 June 2002. It appends a number of documents associated with the applicant's appointment, her transfer and temporary promotions and issues touching on her employment generally. Ms O'Connor's evidence was not contested.
[17] In her affidavit, Ms O'Connor sets out the chronology of the applicant's employment with ABS and records that the applicant was told on 18 February 2002 that her approval for leave without pay would cease on 15 March 2002. Ms O'Connor states that the applicant was informed that there was a position available for her at her level in the Western Australian office and that she was expected to resume work in this position in the Western Australian office on 18 March 2002.
[18] Ms O'Connor further states that the applicant submitted her resignation to the respondent on 15 March 2002.
[19] Mr O'Donovan, on behalf of the respondent, submitted that the applicant's employment was terminated as a result of her own unilateral, voluntary act. The respondent did not wish to end the employment relationship. It merely required the applicant to continue the relationship as originally agreed at the location originally agreed. The applicant was not satisfied with that arrangement and resigned when the respondent would not agree to change it.
[20] The applicant filed in the Commission and served on the respondent on 18 June 2002, an extensive written submission[2], including in it various matters of fact. The respondent did not require the applicant for cross-examination in respect of her submissions or statements of fact. However, the respondent, while not contesting the statements contained in the applicant's written submissions in the hearing before me, reserved its position in relation to the admissibility of the material generally should the application proceed to hearing.
[21] In her Application for relief in relation to termination of employment which was filed in the Commission on 2 May 2002 (`Form R18') and the written submissions, the applicant indicates that she resigned from her employment because she had been unfairly denied a position in the Victorian office and the only other options the respondent gave her were to resign or return to the Western Australian office. The applicant attached to her Form R18 application a letter sent to her from Mr Roarty on 18 February 2002. In the letter, Mr Roarty informed the applicant that he was not able to approve any further leave without pay for her and stated that: "should you decide you do not wish to return to work at ABS WA, you will need to send me your written resignation".
[22] The applicant claims that it was impossible for her to return to the Western Australian office due to her spouse's work commitments in Melbourne and both personal and professional commitments of her own in Melbourne. The applicant submitted that she should not have been forced to choose between these two options because the denial of her request was not due to any fault in her performance or the capacity of the Victorian office to employ her.
[23] Further, the applicant claimed that her request for permanent transfer to the Victorian office was denied "under unfair and biased circumstances" created by her senior manager in the Victorian office, Mr Chris Libreri, and not due to any fault in her performance or the financial or other capacity of the Victorian office. In her written submissions, the applicant stated that "the demise of my career in the ABS was a consequence of Mr Libreri's biased attitude towards me and the influence he has over the other managers in the Victorian office which caused them to support and carry through the consequences of this attitude: denial of a permanent position in the Victorian office".
[24] The applicant said that prior to Mr Libreri being appointed to his position in the Victorian office in July 2001, there had been no complaints about her performance. She had been required to act in higher duties positions and her satisfactory performance in those levels was affirmed by the extensions to the higher duties appointments that she held. The applicant claimed that everything changed after Mr Libreri was appointed as her senior manager.
[25] In her written submissions, the applicant referred to a number of incidents that she claims demonstrates that Mr Libreri was biased against her and used his authority and influence to ensure that she was removed from the Victorian office. In particular, the applicant submitted that:
· Mr Libreri consistently demonstrated a disapproving and sometimes openly hostile attitude towards her on numerous occasions both prior to and after he took over the directorship of the NCCJS in July 2001. The applicant referred to a specific example where she claimed Mr Libreri was unnecessarily rude, abrupt, aggressive and patronising towards her. She believed that Mr Libreri developed a personal dislike of her and/or the outspoken manner in which she sometimes conducted herself in the workplace.
· After Mr Libreri became director of the NCCJS, the applicant's pay and level of responsibility were reduced and she received unfavourable performance appraisals from the same managers who had given her positive feedback and favourable performance appraisals for the past year.
· Mr Libreri used his authority and influence over the other managers to ensure that the applicant was discredited in her performance review in July 2000 and was unsuccessful in two selection processes in August and September/October 2001.
· Mr Libreri never informed the applicant about the bulk fill process that was to take place in any of the meetings and discussions they had about the denial of her transfer application, despite being aware of her desire to remain in Melbourne. When the applicant became aware of the bulk fill process, Mr Libreri told her that it would be pointless for her to apply for those positions.
· Mr Libreri required the applicant to submit a formal application for a permanent transfer to the Victorian office and required her to compete with others for the transfer, which the applicant submitted was not routine practice. The applicant expected her request for permanent transfer to be approved, as this is what normally occurred except under unusual circumstances.
[26] The applicant also attached to her Form R18 a copy of an email she sent to Mr Roarty on 15 March 2002 notifying him that she was resigning from her employment. In the email, the applicant states: "I am taking this action only because I have received advice that, to not do so in the face of the ABS' refusal to make my position in their Victorian office permanent, could be interpreted as an abandonment of my employment (amongst other things). It is not and never has been my intent to take such action".
[27] In her written submissions, the applicant stated that it was never her intention to abandon her employment or act unlawfully and that it was clear from her email to Mr Roarty that she tendered her resignation unwillingly. Although the applicant has not expressly put her case in terms of constructive dismissal, this can be inferred from the content of her written submissions.
[28] In expanding on her written submissions the applicant said in oral submissions that when she left the Victorian office to go on leave without pay, another person within the office was transferred into the position that she had occupied. Furthermore, the respondent has employed additional staff in the NCCJS in Melbourne since her departure. The additional staff in the NCCJS represented an increase in the staffing level in the Victorian office.
[29] Mr O'Donovan, by way of reply, submitted that, although the respondent did not dispute the influence Mr Libreri had over the selection process in determining the bulk fill exercise, the issue was irrelevant. Mr Libreri did nothing to bring about the termination of the applicant's employment. All he did, according to Mr O'Donovan, was refuse positive benefits to the applicant. While the applicant had a duty to return to her substantive position in Western Australia the respondent had no duty to transfer the applicant to the Melbourne office to accommodate her convenience. Mr O'Donovan contended that an employee who is seeking the conferral of a positive benefit cannot be heard to say that they were forced to resign because the employer does not grant the positive benefit that the employee wants.
[30] The proper test of constructive dismissal, Mr O'Donovan contended, is one in the nature of an ultimatum; for example resign or be sacked, or resign or we will call the police, or resign or we will take disciplinary action against you. Mr O'Donovan said that the applicant was offered the job that she was employed to do in the Western Australian office or stay with her husband in Melbourne.
[31] Mr O'Donovan contended that the concerns about the applicant's continued employment in the Victorian offices were not so much budgetary but rather that her skills did not match the positions that were required within the organisation. All Branch Heads and not just Mr Libreri were involved in considering applicants for the positions in the Victorian office.
[32] Subsection (1) of section 170CE of the WR Act dictates that in order to bring an action under s170CE of the WR Act, the employment of the dismissed employee must be "terminated by the employer". The Commission has no jurisdiction to grant relief under the Division 3 of Part VIA unless that fact is established[3].
[33] According to the Full Bench of the Commission in ABB Engineering Construction Pty Ltd v Doumit[4], the question whether the termination of employment was at the initiative of the employer is ultimately a matter of fact to be determined upon the individual circumstances of the case. The Full Bench stated that:
"[F]or a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign".
[34] In Mohazab v Dick Smith Electronics Pty Ltd (No 2)[5], the Full Court of the Industrial Relations Court of Australia held that relief under the Act requires that the termination was one in which the action of the employer was the principal contributing factor leading to the termination of the relationship (emphasis added). This approach was followed by Whelan C in Hughes v Monash University[6].
[35] The Full Bench of the Federal Court in Pawel v Australian Industrial Relations[7] cast doubt on the test proposed by the Full Court in Mohazab. The Full Court indicated that a mere casual link between the conduct of the employer and the employee's decision to resign was not sufficient to enable an applicant to initiate proceedings pursuant to subsection 170CE(1). The Full Court stated that if an employer decides to provoke a resignation and takes steps which produce that result, there is little difficulty in treating the resignation as employer-initiated. If resignation was not the employer's objective, the Full Court said that it was difficult to see how any termination could be regarded as employer-initiated.
[36] In Jackson & Wilson v Monadelphous Engineering Associates[8], Justice Moore stated that:
Constructive discharge can be established by demonstrating that the employer deliberately made an employee's working conditions so intolerable that an employee was forced into an involuntary resignation and the employee acted reasonably. However it would not be necessary to demonstrate that the intolerable working conditions were imposed for the purpose of forcing the employee to resign.
[37] In Hall v Leader Transport[9], Commissioner Whelan suggested that this passage by Justice Moore had arguably broadened the test in Mohazab. I agree with the Commissioner's view.
[38] There are a number of decisions of the Commission that refer to the decision in Monadelphous and discuss the manner in which the actions of the employer can lead, either deliberately or unconsciously, to the determination of employment of an employee. In particular, I refer to the decisions in Lloyd v Elly Lukas Beauty College[10], Patience v NatRec Pty Ltd t/as Do It Not Pty Ltd[11] and Curcio v Alsafe Premix Concrete[12], where the Commission held in each case that the conduct of the respective respondents was instrumental in ending the employment relationship.
[39] I do not accept Mr O'Donovan's narrow concept of constructive dismissal in the context of Division 3 of Part VIA of the WR Act. I think it an inescapable conclusion that if an employer, as a prelude to a termination of employment, knowingly imposes on an employee a condition of continued employment that the employee cannot meet, the employer must be taken to have been instrumental in bringing the employment to an end.
[40] My present function is to determine whether the application in this case is competent. I am not concerned with the merits of the application. The WR Act requires that, if a respondent challenges the Commission's jurisdiction to deal with an application under s 170CE before any action is taken in relation to the application the Commission must deal with the jurisdictional issue before taking any other action in relation to it. Section 170CEA relevantly provides as follows:
170CEA Motions for dismissal of application for want of jurisdiction
_(1) A respondent may move for the dismissal of an application under section 170CE on the ground that the application is outside the jurisdiction of the Commission at any time, including a time before the Commission has begun dealing with the application.
(a) the respondent moves for the dismissal of an application on such a ground and has not previously so moved; and
(b) the respondent so moves before the matter is referred for conciliation by the Commission;
the Commission must deal with the motion before taking any action, or any further action, on that application, unless the respondent indicates that the matter may be dealt with at a later time.
[41] A jurisdictional challenge in cases such as the present necessarily involves a consideration of the facts, not only of the termination of employment itself but also of the incidents of the employment environment and of the relevant employment. The facts that must be examined in this context will include facts going to the merits of the claim. An employer would be well advised in such circumstances to weigh carefully the advantages and disadvantages of mounting an early jurisdictional challenge.
[42] The applicant in this case makes a number of serious allegations against Mr Libreri, her senior manager. The allegations in substance suggest that Mr Libreri abused his position and power in bringing about the applicant's removal from the Victorian office because of personal antipathy towards her.
[43] In the proceedings before me, the respondent sought only to rely on the material set out in the affidavit of Ms O'Connor. The respondent did not choose to call Mr Libreri to give evidence and contradict the written submissions made by the applicant, nor did it seek to tender a written statement by Mr Libreri. Counsel for the respondent, said that Mr Libreri had offered to attend and give evidence during the proceedings before me but Mr O'Donovan had thought that it was not necessary for Mr Libreri to do so at the jurisdictional hearing. Mr O'Donovan submitted, in any event, the matters that the applicant raises in respect of Mr Libreri are irrelevant to the question before me.
[44] Mr O'Donovan's views as summarised in the preceding paragraph are undoubtedly based on the narrow scope of the concept of constructive dismissal that I have rejected in paragraph [39] above.
[45] Given the uncontradicted allegations that the applicant makes about Mr Libreri and his authority, I must accept her submission that the issues surrounding the respondent's refusal of her application for a permanent transfer to Melbourne, her unsuccessful bid for placement in Melbourne in the bulk fill process, and the refusal to extend her leave without pay, are all relevant considerations in determining whether her resignation was in fact involuntary. I now consider these matters.
[46] There can be no dispute that the applicant's substantive position was situated in Western Australia. The respondent agreed to her temporary transfer to Melbourne so that she could accompany her husband on his temporary assignment in Melbourne. The respondent also agreed to extend the duration of the applicant's temporary transfer to Melbourne to meet her convenience. So much is beyond dispute.
[47] The applicant's application in August 2001, for a permanent transfer to Melbourne was refused. The respondent did not lead any direct evidence about the reason for the refusal. However, according to a memorandum dated 4 September 2001, it appears that Mr Libreri gave the following reason for refusing the applicant's application for transfer:
When considering your application for transfer it is apparent that your qualifications, skills and interests do not meet the specific skill requirements of the Centre or the Victorian Office.[13]
[48] I take the reference to "Centre" to mean the National Centre for Crime and Justice Statistics.
[49] I have some difficulty in accepting the statement apparently made by Mr Libreri about the applicant's suitability for positions in NCCJS as a true reflection of the applicant's qualifications and skills. The applicant, according to her uncontradicted statement, undertook duties in NCCJS and was paid at the APS 4 level for two months beginning 23 November 2000 and APS 5 level for six months beginning 22 January 2001. In the course of performing those duties she had been assessed in February 2001, as satisfactory as an APS 4 and satisfactory with reservations as an APS 5.[14]
[50] Despite the reservations expressed in February 2001 about the applicant's performance as an APS 5, the respondent continued to pay her as such until July 2001. In a formal review of the applicant's performance under the "Performance Management Scheme" in July 2001, the applicant was assessed as "Outstanding".[15]
[51] In the circumstances and in the absence of any explanation from Mr Libreri, I find it incredible that the applicant's qualifications, skills and interests did not, as at September 2001, meet the specific skill requirements of the Centre.
[52] During the period in which Mr Libreri was considering the applicant's application for a permanent transfer to Melbourne, Mr Libreri was Chairperson of the APS 4 Selection Advisory Committee that had been established to consider suitable candidates for positions in the Melbourne office as part of a bulk fill process. As I understand it the bulk fill process is used to provide promotional opportunities for staff holding statistical positions in the Victoria office.
[53] The applicant submitted that Mr Libreri ought to have brought the bulk fill process to her attention when considering her application for transfer. He had a number of discussions with her about the application for transfer when it was being considered. When the applicant learned of the bulk fill process and raised it with Mr Libreri, he told her it would be pointless putting herself forward as a candidate.
[54] The applicant applied for consideration under the bulk fill process but was unsuccessful. The applicant alleges that Mr Libreri was a significant influence in her failure in as much as he influenced the applicant's supervisors in the opinions they gave of her in their referee reports.
[55] There is some material to suggest that Mr Libreri may have had and exercised some influence over referees in the bulk fill process. This occurs in a document about Referee Reports for upcoming bulk process dated 11 September 2001 that was purportedly written by Mr Libreri. The document reads as follows:
There will be some demand for referee/supervisor reports in the upcoming process and to save time the branch heads have agreed that panels will be interviewing referees. I believe that these processes are critical and as such I have discussed and cleared reports in my previous branches, this has lead to a more consistent and robust approach in those areas -I would like that to continue in the Centre. As such if you are asked to give a report I would appreciate you taking the time to discuss your views (with me) about the relevant person before you are interviewed. The other issue that you should consider is if you are the appropriate person to give the report and you may also wish to discuss this with me prior to commitment.
If you require any further information please feel free to see me about this.
[56] It is a reasonable inference, in the absence of Mr Libreri's explanation, that he would have intended to influence the referees who spoke to him about their intended reports. So much is clear, in my view, from the fact that, earlier, he had cleared reports in [his] previous branches.
[57] One further matter needs mentioning. The reason for refusing the applicant extended leave without pay on compassionate grounds remains unexplained.
[58] The failure of Mr Libreri to give evidence or otherwise explain the applicant's allegations against him is of concern to me. The allegations are not new. The applicant has made them previously in her application for internal review. The question is whether I should infer that Mr Libreri's evidence would not have assisted the respondent's case. In Jones v Dunkel[17] it was said:
"the failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted."
"Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case."
[59] The principles in relation to what is commonly termed the rule in Jones v Dunkel were summarised thus in Tamayo v Alsco Linen Service Pty Ltd[18]:
· the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or some other evidence may in appropriate circumstances lead to an inference that the uncalled evidence would not have assisted the party's case;
· the rule has no application if the failure is explained, for example, by the absence of the witness coupled with a reasonable explanation for not compelling attendance by subpoena, or by illness or some other availability (Payne v Parker (1976) 1 NSWLR 191 at 202 per Glass JA).
[60] An explanation was given for Mr Libreri not coming forward to give evidence and that was that Counsel for the respondent had advised that it was unnecessary for him to do so. In my view that is an explanation for Counsel's view of the principles governing constructive dismissal. However, it does not justify a failure to seek an adjournment to call Mr Libreri when it became clear in the course of proceedings before me that a different view could be taken of the relevant principles.
[61] In all of the circumstances I think it is open to me to infer that Mr Libreri would not have assisted the case for the applicant. Is it then open to me to infer that Mr Libreri was prejudiced in his view of the applicant and that he wrongly used his power and authority to obstruct her obtaining a transfer from the respondent's Western Australian office to a permanent position to its Melbourne office and, subsequently, refusing a grant of extended leave without pay on compassionate grounds.
[62] The principles regarding inferences are relatively clear. In G v H[19] Brennan and McHugh JJ said:
_"An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Legal principle may confine the basic facts in order to exclude irrelevancies and, where proof beyond reasonable doubt is required, the legal standard of proof precludes the drawing of an inference for the purpose of determining an issue in litigation when the basic facts are consistent with an innocent inference (_Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367). But the drawing of an inference is part of the process of fact finding: it has to do with the minor premise of legal principle. ..."[20]
[63] It is important to distinguish inference from conjecture and speculation; there can be no inference unless there are objective facts from which it might be derived.[21] However, an inference may more readily be drawn in cases where a party, although having it within their power to provide or give evidence on some issue, declines to do so. In G v H, this principle was stated in the following terms:
"... it is well settled that, in the course of the ordinary processes of legal reasoning, an inference may be drawn contrary to the interests of a party who, although having it within his or her power to provide or give evidence on some issue, declines to do so. Thus, for example, there may sometimes be an inference in civil cases that the evidence, if called, would not assist that party's case: Jones v. Dunkel [1959] HCA 8; (1959) 101 CLR 298. And there may sometimes be an inference in criminal cases of "guilty knowledge", in the sense of knowledge that the evidence cannot be explained in a way that is consistent with innocence see, for example, Weissensteiner v. The Queen (1993) 178 CLR at 243-245 and the cases there cited. They are inferences that are to be drawn, if at all, in accordance with strict legal reasoning. In other cases, the failure to give evidence may result in more ready acceptance of the evidence for the other party or the more ready drawing of an inference that is open on that evidence."[22]
[64] The cogent facts in this case, as I find them in the absence of Mr Libreri, are:
· the applicant was performing duties in the NCCJS satisfactorily at the APS 4 level and satisfactory with reservation at the APS 5 level for a period of three months to February 2001;
· the respondent continued to pay the applicant at the APS 5 level from February to July 2001;
· in the annual performance review under the Performance Management Scheme in July 2001 the applicant was assessed as "outstanding";
· in July 2001, Mr Libreri assumed the position of Director in the Victoria office;
· in September 2001, Mr Libreri considered the applicant's skills and qualifications unsuitable for appointment to an APS3 level in NCCJS or the Victoria office and refused her application for transfer;
· in September 2001, Mr Libreri notified potential referees for candidates for positions in the bulk fill process that he would appreciate them discussing their views about the candidate before giving their reference, which was consistent with his previous conduct in clearing referee reports before being made;
· in September 2001, Mr Libreri told the applicant that it would be pointless her including herself as a candidate for the bulk fill positions;
· in October 2001, the applicant was unsuccessful in her candidature for a bulk fill position at both the APS 4 and APS 5 levels.
[65] It is reasonable to infer on the basis of the foregoing facts that Mr Libreri considered the applicant unsuitable for a position in NCCJS and the Victoria office for a reasons or for reasons other than her work performance. During the hearing it was suggested that a reason for refusing her a position in Victoria was because of budgetary constraints. I do not accept this. The applicant stated that additional staff had been engaged in NCCJS after she left. This was not disputed.
[66] It was Mr Libreri's decision to refuse the applicant a position in Victoria. Having found, as I do, that the reason could not have been associated with the applicant's performance or for budgetary reasons, I cannot but conclude that Mr Libreri wanted the applicant out of the Victoria office. He did so in circumstances where he knew that the applicant's partner was permanently located in Melbourne and that the applicant would not return to her substantive position in Western Australia.
[67] I agree with Counsel for the respondent that an employer is entitled to conduct its business in the manner that is in the best interests of the business. An employer is not under any duty to create vacancies or approve transfers merely to satisfy the domestic arrangements of its staff. Furthermore, an employer is entitled to require an employee to perform the contract of employment in accordance with its terms. However, if the facts regarding the employer's dealings with an employee leading to an employee's resignation, do not reveal a decision based on business interests and they are otherwise consistent with some ulterior motive or purpose, it is open to the Commission to conclude that the employer deliberately made an employee's working conditions so intolerable that the employee was forced into an involuntary resignation.[23]
[68] When the respondent refused to grant the applicant extended leave without pay on compassionate grounds it was inevitable, in my view, that the applicant would resign. She had no other option in the circumstances.
[69] As difficult as it is to reach a concluded view, given the unsatisfactory state of the evidence, it seems to me, on balance, that the termination of the applicant's employment was at the initiative of the employer. In the event that this matter goes to hearing my decision should not prejudice the rights of the respondent if evidence of other facts are brought to the attention of the arbiter of fact in the hearing of the application. Accordingly, I will refer the file to the Registrar to be allocated for conciliation.
Mr D O'Donovan, of counsel, on behalf of the respondent.
Printed by authority of the Commonwealth Government Printer
17 [1959] HCA 8; (1959) 101 CLR 298 at 320-1
21 Seltsam Pty Ltd v McGuinness [2000] NSWCA 29, [85] - [89]; (2000) 49 NSWLR 262.
22 [1994] HCA 48; (1994) 181 CLR 387 at 402.
Laurel Leigh Johnson
Australian Bureau of Statistics - PR919557 [2002] AIRC 734;
(1976) 1 NSWLR 191
(1994) 181 CLR 387
(1959) 101 CLR 298
(1995) 62 IR 200
(1936) 55 CLR 367
(2000) 49 NSWLR 262
The jurisdictional objection was not accepted on the evidence then available. The Commission found that, on balance, termination appeared to be at the employer's initiative and referred the file to the Registrar for allocation for conciliation. The decision was preliminary and was not to prejudice the respondent if further evidence emerged: [69].