2. Ms Li consistently denied dismissing the applicant, on 29 June 2018 or at all.[10] She conceded that she said something like '[i]f you are not happy by staying here and working with me then we'll probably have to [go in] different directions', or 'we may go in different directions',[11] but emphasised that she had no intention of terminating the applicant's employment. She stated that she was accordingly 'shocked'[12] when the applicant requested that the respondent pay out his accrued leave, implying that he understood that his employment was at an end:

'THE SENIOR DEPUTY PRESIDENT: ... Did you think that's what he was then saying, "Well, look, I'll leave at the end of that. I'm not going to come back to work, just give me my leave and give me two weeks' pay. It can be two weeks of sick leave and my annual leave and then I won't come back"? [Ms Li:] My first reaction, I was shocked, because I didn't prepare to terminate him, so I was very shocked. On 11 June I even talk about he and I, we were doing further business about immigration, for about half an hour. Yes, I'm prepared to do more business with him, then he suddenly - say this, I really was very shocked.

What was his reaction when you said this to him? I said - because - - -

You said, "If you're unhappy" - I'm just looking at the words you've used in your statement, obviously it's in Chinese but, "We may need to go in different directions." And he said, "Pay me for two weeks sick leave and four weeks of annual leave first", what did you think at that point? Did you think he would then - what did you think would happen if you paid that? I was just very shocked.

Did you agree to pay it, did you say okay? I was shocked, I didn't know what - I was shocked, I said, "Really?" Yes.

But did you agree to it? I remember at that time I see the time is after 10 and his work start and I said, "Go back to work", that's what I said.

Okay. So you didn't say no and you didn't say yes? I didn't say yes, I didn't say no.'[13]

[12] I prefer Ms Li's version of the events of 29 June 2018 over that of the applicant's, because it is much more plausible in light of what happened after that day (which was largely uncontested and in any case, was reflected in documents that were tendered at the hearing). I will elaborate on this in my consideration below.

1. The parties agree that one of the outcomes of the 29 June 2018 incident was that the applicant would take two weeks' personal leave.[14] However, the applicant and Ms Li had different understandings of the significance of that two-week period. The applicant said that he thought those two weeks were his notice period, i.e. his last day of employment would be 12 July 2018 and his dismissal would take effect on 13 July 2018, though he would not actually be attending work during the intervening two weeks.[15] Ms Li thought at that point that the applicant would return to work after 12 July 2018.[16]

[14] On 9 July 2018, the applicant filed his application for an unfair dismissal remedy.

1. On 11 July 2018, Ms Li emailed a media company that had been dealing with the respondent, asking that they email her directly, because the applicant was on sick leave.[17]

2. On 13 July 2018, Ms Li emailed a tenant that had been communicating with the applicant, asking her also to email her directly, because the applicant was on sick leave.[18]

[17] Also on 13 July 2018, Ms Li emailed the applicant to request a medical certificate for the previous two weeks. That email also included the following:

'Please let me know your intentions in relation to your employment.

I note that you raised some concerns about your experience at the workplace. We are more than happy to schedule a meeting with you to discuss your concerns if you are comfortable with that. Please let me know if and when you are available.'[19]

1. I accept Ms Li's evidence that on 17 July 2018, she asked Mr Weimin Zhou to assist in an investigation into the applicant's allegations against Mr McCreanor.[20] Mr Weimin Zhou's evidence closely corroborated this. He gave evidence that he saw his role in the planned investigation as that of mediator between the applicant and Ms Li:

'... I asked her how she [Ms Li] was going on with Mr Zhou [the applicant], and I asked her if she fell out with Mr Zhou. And I personally like Mr Zhou. And I am also from Shanghai from the same place as Mr Zhou and I just want - I was trying to mediate between them to create a harmonious environment in the company. I'm in a good relationship with Mr Zhou.'[21]

[19] Ms Li emailed the applicant that day (17 July 2018), informing him of Mr Weimin Zhou's proposed role. The email relevantly stated:

'We confirm that we have received your complaint in which you made allegations concerning [Mr McCreanor].

We confirm that the allegations you have raised will be investigated by William Zhou [Mr Weimin Zhou's English name].

William Zhou will be in contact with you writing shortly to discuss the matter further and to confirm the outcome of the investigation.

We confirm that your complaint and the investigation will be conducted confidentially (as far as is possible). You are therefore directed not to discuss this matter with other staff members...'[22]

[20] The Commission served Ms Li with the applicant's application for an unfair dismissal remedy on 18 July 2018. I am satisfied that Ms Li was not aware of the application before she was served.

1. I accept Ms Li's[23] and Mr Weimin Zhou's evidence[24] that Ms Li advised Mr Weimin Zhou that same day (18 July 2018) that the investigation would not be going ahead after all, because she had found out that the applicant had filed this application. I further accept Ms Li's evidence that she interpreted the applicant's filing of this application as him resigning with effect from 9 July 2018,[25] and had until that point (that is, until she was served with the application on 18 July 2018) thought that his employment relationship with the respondent was ongoing.

[22] It is not in dispute that the applicant is a person protected from unfair dismissal. I am satisfied that he is so protected.

[23] Section 385 of the FW Act states:

A person has been unfairly dismissed if the FWC is satisfied that:

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.'

[24] The respondent contends that the applicant's situation does not satisfy s.385(a) of the FW Act.

[25] The meaning of 'dismissed' is set out in s.386(1) of the FW Act:

(1) A person has been dismissed if:

• (a) the person's employment with his or her employer has been terminated on the employer's initiative; or

• (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.'

[26] In this case, the applicant says the respondent dismissed him. Obviously, then, he does not contend that he was forced to resign, so s.386(1)(b) of the FW Act is not relevant to this application. The issue for determination is whether the applicant's employment was terminated at the respondent's initiative.

[27] In City of Sydney RSL & Community Club Limited v Balgowan, a Full Bench of the Commission considered s.386 of the FW Act and noted that:

'Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:

"... a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment'."

Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was "... unnecessary to consider whether the facts fall within or without the notion of constructive dismissal."'[26]

[28] A Full Bench of the Australian Industrial Relations Commission has also found that for a termination to be at the initiative of the employer, there must be:

'... some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.'[27]

[29] For the reasons that follow, I find that the applicant was not terminated at the employer's initiative.

1. First, Ms Li's email to the applicant on 13 July 2018 demonstrates that she still considered him to be an employee of the respondent at that point. I note the applicant's submission that Ms Li only emailed him on 13 July 2018 requesting a medical certificate in the hope that he would fail to provide one and therefore she would not have to pay him for the two weeks' absence that had already elapsed by that point.[28] However, that is not the part of the email on which I rely, and it is not necessary for me to decide whether that was the case. The relevant parts of that email[29] for present purposes are extracted at [17] above. It would be illogical for Ms Li to ask the applicant to indicate his 'intentions in relation to [his] employment' if she had already terminated his employment. It is also highly unlikely that Ms Li would have invited the applicant to a meeting to discuss his 'experience at the workplace' if she did not expect that he would ever be returning to that workplace.

2. Secondly, Ms Li's email to the tenant on 13 July 2018 advising that the applicant was on sick leave is not consistent with an understanding that the applicant's employment ceased with effect from 13 July 2018. Personal leave is an employee entitlement. If, as the applicant contends,[30] he was no longer the respondent's employee from 13 July 2018 onwards, then the respondent would not have had to provide him with personal leave from that date.

[32] Finally, Ms Li's communication with Mr Weimin Zhou about the proposed investigation on 17 July 2018 and her subsequent email to the applicant to inform him of Mr Weimin Zhou's role both strongly suggest that she believed that the applicant was still an employee of the respondent at that time. It would not make sense, especially in a small business like the respondent's, that Ms Li would organise an investigation into the applicant's allegations if he no longer worked there, let alone arrange for someone with whom the applicant got along well to conduct it. I also note that her email to the applicant includes a direction not to discuss the investigation with 'other staff members' [my emphasis]. This implies that she understood that the applicant was still a staff member at the time.

1. I do not accept that Ms Li took any action that was 'either intended to bring the employment to an end or ha[d] the probable result of bringing the employment relationship to an end'.[31] The only allegations to this effect are found the applicant's oral evidence and his written witness statement, but that evidence is inconsistent with the various contemporaneous documents I have referred to above. Those documents objectively suggest that, far from having notified him on 29 June 2018 that his employment was to be terminated with two weeks' notice, Ms Li believed the applicant was still an employee of the respondent up until she was served with his application for an unfair dismissal remedy on 18 July 2018.

[34] The applicant's employment was not terminated at the respondent's initiative, and he does not submit that he was forced to resign. The applicant was therefore not dismissed within the meaning of that term in s.386 of the FW Act, and so I have no jurisdiction to hear his application for an unfair dismissal remedy.

[35] I dismiss the application.

T Wu, solicitor, for Central Capital Pty Ltd T/A Central Capital Group.

1. [1] Exhibit 1.
2. [2] Exhibit 2.
3. [3] Exhibit 3.
4. [4] Exhibit 4.
5. [5] Exhibit 5.
6. [6] Exhibit 6.
7. [7] PN174-81.
8. [8] Exhibit 1 [18].
9. [9] Ibid [21].
10. [10] See, e.g. PN691-2, PN716; exhibit 3 [32]; exhibit 4 [12].
11. [11] PN835-7; see also exhibit 4 [12]: '... we might just go our separate ways'.
12. [12] PN840.
13. [13] PN840-5.
14. [14] PN167-70; PN687-8.
15. [15] PN170-1, PN234-51.
16. [16] PN719-34, PN1104.
17. [17] Exhibit 3 annexure M.
18. [18] Ibid annexure N.
19. [19] Ibid annexure O.
20. [20] PN1154-5.
21. [21] PN1365.
22. [22] Exhibit 1 annexure '2018-07-17'; exhibit 3 annexure P.
23. [23] PN1154; exhibit 4 [16].
24. [24] PN1365.
25. [25] Exhibit 4 [15].
26. [26] [2018] FWCFB 5 [11]-[12].
27. [27] O'Meara v Stanley Works Pty Ltd PR973462 ('O'Meara') [23].
28. [28] PN1425.
29. [29] Exhibit 3 annexure O.
30. [30] PN170-1, PN234-51; applicant's outline of submissions [8].
31. [31] O'Meara PR973462 [23].

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