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[2020] FWC 6842
defendant. The jurisdictional objection was upheld and the unfair dismissal application dismissed.
The Commission decided that Mr Gao had not been dismissed for the purposes of the unfair dismissal provisions. Although the Department had said termination was its preliminary position, it gave him an opportunity to respond before making a final decision. The Commissioner found that Mr Gao had a real choice, considered advice and family views, and resigned voluntarily. Because the Commission found no dismissal, it dismissed his application without deciding whether any dismissal would have been harsh, unjust or unreasonable.
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5 cited instruments linked from this judgment.
2,169 words · generated 01/10/2026
Ming Gao had worked for the Department of Home Affairs since 6 February 2006. At the end of his employment, he was an Executive Level 1 software developer responsible for technical support of the Health Assessment Portal [11]. The Department had performance concerns dating from 2017 and used its Managing Underperformance Policy and Part 6 of the Department of Home Affairs Workplace Determination 2019. The judgment describes the process as having three stages: initial discussions, an assessment period, and a decision about what action to take if performance remained unsatisfactory [12]-[13].
Step 1 began on 30 August 2017 but extended well beyond its intended four weeks. The judgment identifies leave, delays in finalising a performance development agreement, and changes in supervision among the reasons for the delay [15]. After medical and fitness-for-process issues were considered, the Department began Step 2 on 28 May 2019. The independent assessor, Mr Austin, concluded that Mr Gao had not attained or sustained the required standard across the relevant goals [18]-[21].
On 16 August 2019, Mr Gao received a show-cause letter. It stated that the preliminary decision was to terminate his employment for unsatisfactory performance, but invited him to explain why that should not happen. The deadline was 30 August [23], [55]. Mr Gao sent medical material on 19 August and said he would respond when his health improved and stabilised [56]. The Department declined an extension on 21 August. The Commissioner later found that there was no medical evidence showing that Mr Gao could not participate in the show-cause process, and that refusing an extension was not unreasonable [58]-[59].
Mr Gao was also supported by a CPSU delegate, who advised him to resign. After further discussion, including with his wife, he submitted a resignation on 26 August, effective 30 August [60]-[69]. He subsequently applied for an unfair dismissal remedy. The Department objected that he had resigned voluntarily and therefore had not been dismissed.
The hearing initially took place before Deputy President Kovacic on 7 February 2020. Following the Deputy President's death, the matter was reallocated to Commissioner Johns, who considered the existing hearing material [5]-[9]. The Commissioner accepted that Mr Gao was protected from unfair dismissal, but found that he had not been dismissed. The application was dismissed on that threshold ground [34], [81]-[82]. The judgment's heading notes that an appeal under s 604 was lodged; the judgment text provided here does not state what happened to that appeal.
The central issue was not whether the Department's performance assessment was correct, or whether any eventual termination would have been fair. The immediate question was whether Mr Gao's resignation met the statutory definition of dismissal. Section 386(1)(b) covers a person who resigns but was forced to do so because of conduct, or a course of conduct, by the employer. The Commissioner adopted the Full Bench's explanation in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli: the inquiry is whether the employer intended to end the employment, or whether termination was the probable result of its conduct such that the employee had no effective or real choice but to resign [43]-[44]. The employee bears the onus of establishing that the resignation was forced [45].
The Commissioner also stressed that the employer's conduct must be assessed objectively. The employee's own understanding of the employer's intentions is not, by itself, determinative. The judgment cites Ahadizad v ACT Optical and ABB Engineering Construction Pty Ltd v Doumit for that point [70].
The show-cause letter was important to the application of that test. It expressed a preliminary view in favour of termination, but it did not announce a final decision. The Commissioner found that the letter left open the question of what action would be taken, and provided a genuine chance to respond [73]-[74]. In the Commissioner's view, the fact that the Department had discounted some alternatives did not prove that it had closed its mind to Mr Gao's response.
The Commissioner considered the wider history and accepted that the Department's conduct was not perfect. However, the judgment characterises the overall performance-management processes as balanced, fair and reasonable, and any procedural misstep as minor [72]. The Commissioner found that the Department's officers had behaved professionally overall and that the process leading to the show-cause letter was not unfair [72]. This was relevant to assessing the alleged employer course of conduct, but the legal question remained whether it left Mr Gao with no effective or real choice to resign.
The evidence of Mr Gao's decision-making was also central. The Commissioner found that he received advice from his CPSU representative to resign, considered that advice, discussed the decision with his wife, and then resigned. The Commissioner referred to Mr Gao's own message saying that he and his wife had decided to take the advice and resign to move on [75]. The Commissioner further noted that Mr Gao resigned on 26 August for an effective date of 30 August, and did not seek to withdraw the resignation during that intervening period [78].
These facts led to the conclusion that Mr Gao had chosen resignation as being in his own interests, rather than being compelled by the Department's conduct. The Commissioner found he could have engaged with the show-cause process, but chose not to do so [75], [77]-[80]. As there was no dismissal under s 386, the Commission did not proceed to decide whether a dismissal was harsh, unjust or unreasonable.
The decision applies the statutory distinction in s 386(1) between an employer-initiated termination under paragraph (a) and a resignation forced by employer conduct under paragraph (b). The parties agreed that paragraph (a) did not apply, so the case concerned only paragraph (b) [39]-[41].
The Commissioner adopted the Full Bench's approach in Bupa. That approach focuses on the statutory wording and the real circumstances of the resignation, rather than treating “constructive dismissal” as a separate or broader test [43]-[44]. The decision therefore frames the question narrowly: did the employer's conduct force the resignation because the employee had no effective or real choice? It does not treat every employer action that makes continued employment difficult, or every disputed performance process, as sufficient by itself.
The decision also demonstrates the place of the dismissal question in the structure of an unfair dismissal application. Section 385 includes as a necessary element that the person was dismissed. The Commissioner treated that as a threshold issue: only after being satisfied of a dismissal could the Commission consider whether it was harsh, unjust or unreasonable [36]-[38]. Because that threshold was not met, the Commissioner did not determine the merits of any hypothetical termination or the correctness of the Department's performance findings [81]-[82].
This judgment does not describe a change in the statutory test. It applies the test stated in Bupa and authorities cited in the reasons, including Banda, Ahadizad, ABB Engineering, Pacific National, Hardwick and Knight [43]-[45], [70], [77]. The source text does not provide a later account of how courts or the Commission have treated this decision, so no broader claim about the law after this decision can be drawn from it.
At [43], the judgment reproduces the Bupa test: the question is whether the employer intended to bring the employment to an end, or whether termination was the probable result of its conduct so that the employee had “no effective or real choice but to resign.” In plain English, a resignation is not automatically a dismissal just because it happened in a difficult employment situation. The focus is on the employer's conduct and whether it left a real choice.
At [45], the Commissioner states that the onus was on Mr Gao to establish that he was forced to resign. This identifies who had to prove the jurisdictional fact in this case.
At [70], the Commissioner says employer conduct must be assessed objectively, rather than solely by reference to the employee's perception of the employer's motives. This means the assessment is not resolved simply because an employee genuinely believed that termination was inevitable.
At [74], the Commissioner concludes that the show-cause letter was a genuine chance to explain why employment should continue. The letter communicated a preliminary view, not a final outcome. That distinction mattered because it supported the finding that the Department had not yet made a definite decision to terminate.
At [79], the Commissioner states that there was “no absence of effective or real choice” and that Mr Gao exercised his free will to end the employment. This is the application of the statutory test to the circumstances found by the Commissioner.
Finally, [82] records the result: Mr Gao was protected from unfair dismissal, but there was no dismissal, so the application was dismissed. The outcome did not determine whether the Department's performance assessment was correct or whether a termination, if one had occurred, would have been fair.
The decision is most directly relevant to a case where an employee resigns after receiving a preliminary termination view, but before the employer has made a final decision. Here, the letter set out a preliminary decision to terminate while expressly inviting a response before a final decision [23], [55]. The Commissioner found that this was a genuine opportunity and that the decision remained open [73]-[74].
It is also relevant where the employee relies on a broader course of conduct, such as performance management, rather than one isolated act. The Commissioner expressly recognised Mr Gao's reliance on a course of conduct but said it was important to focus particularly on the immediate events leading to the resignation [41], [54]. That directs attention to both the wider history and the events closest to the resignation, without allowing the former to replace the statutory test.
The decision highlights facts that may matter to the objective assessment: what the employer communicated, whether a decision was final or preliminary, whether a real response opportunity remained, whether the employee took up that opportunity, what advice the employee received, the employee's own stated reasons for resigning, and whether the resignation was immediate or later effective [55]-[79]. No single fact is stated to decide the question on its own. The Commission's conclusion followed from its assessment of the evidence as a whole.
The decision should not be read as establishing that a show-cause letter can never contribute to a forced resignation. Its finding depended on the contents of this letter and the evidence about the Department's decision-making and Mr Gao's choice. The judgment also does not decide the lawfulness of the performance process as a separate claim.
The judgment itself does not identify any later judicial or Commission treatment of Ming Gao. It therefore cannot establish whether a later court followed, distinguished, approved or criticised the decision.
The header records that an appeal pursuant to s 604, numbered C2020/9322, was lodged against the decision. The text supplied does not state the appeal's outcome or give any later appellate reasoning. It would therefore be inaccurate, on this source alone, to infer that the decision was affirmed, reversed or otherwise affected.
The authorities the Commissioner relied on within this decision are identifiable from the reasons. The Commissioner adopted Bupa's summary of the forced-resignation test [43]-[44], cited Banda for the employee's onus [45], referred to Ahadizad and ABB Engineering for objective assessment [70], and said the finding was consistent with Pacific National, Hardwick and Knight [77]. Those are the relationships expressed in this judgment, not a record of how later decision-makers treated Ming Gao.
The reasons decide only the jurisdictional issue on the evidence before the Commission. They do not decide whether the performance process complied with every applicable policy requirement, whether Mr Gao's performance was in fact unsatisfactory, or whether a final termination decision would have been harsh, unjust or unreasonable. The Commissioner found that the process was broadly balanced, fair and reasonable, while acknowledging it was not perfect and that any procedural misstep was minor [72]. The decision does not identify the misstep or examine it as a separate legal claim.
The reasons do not resolve what happened to the appeal noted in the header. Nor do they provide later authorities applying or modifying the test. These matters cannot be answered from the judgment text provided.
The judgment also does not establish how different medical evidence, a refusal of a meaningful opportunity to respond, an already-final termination decision, or a materially different form of pressure would affect the statutory test. Its factual conclusion was that Mr Gao had a real opportunity to respond and chose to resign after considering advice and family views. Applying the decision to other circumstances would require attention to their particular facts and the governing legal sources.
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[2020] FWC 6842 [Note: An appeal pursuant to s.604 (C2020/9322) was lodged against this decision.]
s.394 - Unfair dismissal
Application for relief from unfair dismissal - jurisdictional objection- jurisdiction objection upheld - application dismissed.
[1] Mr Ming Gao (Applicant) lodged an application under s.394 of the Fair Work Act 2009 (FW Act) which was received by the Fair Work Commission (Commission) on 18 September 2019 alleging that he had been unfairly dismissed by the Commonwealth of Australia (as represented by the Department of Home Affairs) (Department/Respondent) on 30 August 2019.
[2] In its Form F3 - Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection, claiming that Mr Gao had resigned from his employment voluntarily and was therefore not dismissed within the meaning of s.386(1) of the FW Act.
[3] It is not disputed that on 16 August 2019 Mr Gao received a show-cause letter giving him two weeks to respond (i.e. by 30 August 2019). In his application the Applicant contended that the show-cause letter was, in effect, 2 weeks' notice of termination[1]. On 26 August 2019 the Applicant resigned. He ceased employment on 30 August 2019. However, in his application Mr Gao further contended that he was left with no real choice but to resign in circumstances where the Department had notified him of an intention to terminate his employment.
[4] Mr Gao complains about the performance management that led to the show-cause letter. In his application he highlighted five major unfair aspects with the intention to terminate his employment. He contends that, as a result of the Department's course of conduct (culminating in the show-cause letter), he was forced to resign and that he was therefore dismissed in accordance with s.386(1)(b) of the FW Act.
[5] The matter was heard in Canberra before his Honour Deputy President Kovacic on 7 February 2020. The hearing dealt with the Respondent's jurisdictional objection. At the hearing Ms I Sekler appeared for the Respondent and Mr Gao represented himself. Mr Gao gave evidence on his own behalf and evidence for the Applicant was also given by Ms Lisa Haritz a current employee of the Department.
[10] This matter has a long history. As I have indicated above there are voluminous materials. Therefore, below I have summarised the essential background in this matter. Having considered all of the evidence I am satisfied that there is an evidentiary basis for each of the following findings of fact.
[11] The Applicant commenced employment with the Department on 6 February 2006. He commenced with the Department as an IT Graduate (APS4). At the time his employment ceased Mr Gao was an Executive Level 1 employee. He was a "Java Developer" or software developer. He was responsible for the technical support of an information technology system called the Health Assessment Portal (HAP).
[12] The Department manages performance under its Managing Underperformance Policy 1 July 2015 (UP Policy) and Part 6 of the Department of Home Affairs Workplace Determination 2019 (WD).
[13] Broadly speaking the UP Policy and WD provides that underperformance is addressed in three stages:
Step 1 - initial discussions with employee for a period of four weeks;
Step 2 - an Assessment Period for eight weeks where an assessor outside of the work area monitors the employees' performance. Step 2 occurs where Step 1 has not resulted in an employee's performance returning to the expected performance standard;
Step 3 - if an employee's performance remains unsatisfactory at the end of the Assessment Period the Secretary (or their delegate) will make a decision as to the action to be taken and advise the employee in writing.
[14] The Applicant was advised of issues relating to his performance from 1 May 2017.
[15] On 30 August 2017 the Department commenced Step 1 of a Performance Improvement Process (PIP). The PIP was overseen by Mr John Ramsay, the Applicant's Director at the time. While Step 1 is only intended to run for a period of four weeks, this process was delayed in the Applicant's case and ran for a considerable period longer than the above prescribed time. This was due to a number of factors including the Applicant taking leave, delays in the Applicant finalising his Performance Development Agreement () and changes in the Applicant's supervisor.
[32] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.
[33] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:
"382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person's annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high-income threshold.
[34] There is no dispute, and I am satisfied, the Applicant was protected from unfair dismissal.
[35] I will now consider if the cessation of employment was unfair within the meaning of the FW Act.
[36] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
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.
[37] In the present matter ss.385(c) and (d) are not relevant.
[38] However, before I can determine if the dismissal was harsh, unjust or unreasonable I must first be satisfied that Mr Gao was dismissed by the Department.
[39] A person has been unfairly dismissed if the termination of their employment comes within the definition of "dismissed" for purposes of Part 3-2 of the FW Act. Section 386 of the FW Act provides that:
(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."
[40] It is common ground that s.386(1)(a) does not apply in the present matter.
[41] The Applicant contends that he was forced to resign from employment with the Department because of conduct, or a course of conduct, engaged in by Departmental officers.
[42] As previously mentioned, Mr Gao maintained that he had been dismissed as described in s.386(1)(b) of the FW Act.
[43] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2], a Full Bench of the Commission referred to a number of authorities dealing with "dismissal" under s 386(1). In relation to the operation of s.386(1)(b) the Full Bench held that,
"[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd , that "The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd" (footnotes omitted). The body of pre-FW Act decisions concerning "forced" resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.
[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:
(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 probably 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."
[49] We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of "constructive dismissal" - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article "Constructive Dismissal of Employment in Australia", the concept of "constructive dismissal" in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where "the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer's conduct". That is a much wider concept than just "forced" dismissal and is conducive of confusion, as McCarry warned:
"If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a "constructive dismissal", nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard "dismissal" as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase "constructive dismissal" brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied."
[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal, that the term "constructive dismissal" could "deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?" In the current statutory context of s.386(1), the breadth of the concept of "constructive dismissal" may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case."
[44] I adopt the reasoning of the Full Bench. Consequently, it is necessary for me to focus on whether the Applicant was "forced to [resign] because of conduct, or a course of conduct, engaged in by [the Department]" rather than exploring notions of "constructive dismissal".
[45] The onus is on the Applicant to establish that he was forced to resign: Banda v Mrs Australia Pty Ltd (t/a 7-Eleven).[3]
[46] Mr Gao contended that he had been dismissed as described in s.386(1)(b) of the FW Act.
[47] In his written submissions, Mr Gao disputed several aspects of the Respondent's submissions regarding its jurisdictional objection. For instance, Mr Gao disputed that he requested a voluntary redundancy. More particularly, Mr Gao submitted inter alia that:
He had refused three offers for voluntary redundancy from the Department before he received the letter of 16 August 2019.
On receipt of the Show-cause Letter, the only real option open to him was termination of his employment.
Despite the delegate offering the Applicant an opportunity to provide reasons as to why he should not be dismissed, the Applicant believed that as he had already provided a response and that his response was the same - this would not result in the delegate changing her decision. This was in circumstances where:
- The Applicant was in complete disagreement about his under-performance.
- All his previous responses with evidence had been dismissed.
- Unwarranted accusations had been made during stage 2 of the report which were not comprehensive and thorough.
- The Applicant had already provided these responses to the delegate and they "had been completely dismissed".
He denied posing a "risk to the well-being of others in the workplace". This assessment was based on a number of allegations that the Applicant stated did not occur or were taken out of context. Further, the Applicant did not consider this an issue related to performance.
The intention to terminate letter was based on a false statement made by Ms Conn that the Applicant had raised issues with, but they had not been passed on by the relevant Community and Public Sector Union (CPSU) delegate.
Procedural fairness had not been afforded to the Applicant during the performance process contrary to departmental policy.
- Stage 2 only occurred over a period of 3 weeks instead of the required 8 weeks. As the Applicant had become unwell at the end of three weeks, the Applicant considered that exceptional circumstances should have been exercised to extend the eight-week period.
[48] The Respondent in its written submissions canvassed the legislative framework, contending that:
in relation to s.386(1)(b) of the FW Act the onus is on the employee to prove that they did not resign voluntarily and that the employer forced their resignation; and
the test to be applied is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.
[49] The Respondent relied on several authorities in support of it submissions, including Mohazab v Dick Smith Electronics Pty Ltd (No 2)[4], Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (Bupa)[5], Rheinberger v Huxley Marketing Pty Ltd[6] and P. O'Meara v Stanley Works Pty Ltd[7].
[50] The Respondent further submitted that its conduct in this case was far removed from circumstances where forced resignation had been found to have occurred, adding that the circumstances had a substantial similarity to cases where an employee resigns before the employer had come to a decision regarding a disciplinary investigation[8] or resigns because they have been subjected to performance management.[9] The Respondent also contended that when viewed objectively at the time Mr Gao resigned its previous conduct in issuing the show-cause letter and deciding not to offer a voluntary redundancy to Mr Gao was not such that he had no effective or real choice but to resign, adding that Mr Gao could have:
responded to the show-cause letter;
if he considered that he was not fit to participate in the show-cause process, he could have provided medical evidence to that effect; or
sought an order form the Commission that the show-cause process not proceed until his application for an order to stop bullying had been determined.
[53] Before the Deputy President, the Applicant gave evidence and was cross-examined. His evidence was consistent with the Witness Statements and submissions he had previously filed. In essence, he considered that the allegations made by the Department in the Show-cause Letter left him with no choice to resign. Under cross-examination the Applicant made the following concessions:
Concerns had been raised by the Applicant's supervisors regarding his performance as early as 2017.
Step 1 of the Applicant's PIP commenced on 30 August 2017.
The Step 1 PIP would ordinarily run over four weeks. However, in the Applicant's case it did not conclude until 29 May 2019.
Step 1 was delayed by the Applicant taking several periods of leave during this time.
At the end of the Step 1 process a decision by the Department was made to start the Step 2 process.
There was a delay in starting Step 2 of the process due to questions surrounding his fitness for duty. As such the process did not commence until 28 May 2019.
Step 2 went for 8 weeks and Mr Austin was the independent assessor.
The Applicant received a copy of the Step 2 report on 7 August 2019.
He responded to this report on 14 August 2019.
On 16 August the Applicant received the show-cause letter.
The letter was signed and written by Ms Rebecca Taylor but sent by Ms Gwen Smith (as Ms Taylor had resigned two days prior). This letter advised of a preliminary decision.
He felt that even though Ms Taylor gave him an opportunity to respond in the show-cause letter she had a predetermined outcome in mind.
He had two weeks to respond to the letter from 16 August to 30 August 2019, even though the Managing Underperformance policy generally required one-week response.
He was unwell for the period of 16 August to 30 August 2019, however attended work on the 14 through to the 16 of August 2019.
If you do not provide a response by close of business on 30 August 2019 I'm intending to make my final decision, based on the information before me. This includes your responses to the process to date and, most recently, to the independent assessor's report.
kk) He made the decision to resign with his wife.[14]
[54] Although the Applicant relies upon a course of conduct, it is important, in particular, to reflect upon the immediate events leading up to the resignation.
[55] On 16 August 2019 the Applicant received the Show-cause Letter. It is useful to set out the full terms of the Show-cause Letter (attachments omitted):
"Notice of Intention to Terminate Your Employment - section 29(3)(c) Public Service Act 1999 (Cth) - underperformance of duties - Step 3 Proposed Outcome
If at the end of the Assessment Period the Employee has not attained and sustained the expected standard of work performance, the Secretary will determine what, if any, action should appropriately be taken . The appropriate action may include terminating the Employee's employment.
Subjecting you to negative and unwarranted criticism
[56] On 19 August 2019 at 8.57am, the Applicant sent an email to the Department's workplace relations and behaviours email address, Ms Taylor and others. Attached to the Applicant's email were a medical certificate and correspondence from two psychologists. The Applicant wrote,
"I will provide my comment [i.e. to the Show-cause Letter] when my health condition improved (sic) and stablised (sic)."
[57] The 19 August 2019 email was forwarded to Ms Whiting (who was the then current Delegate of the Secretary in Ms Taylor's absence).
[58] On 21 August, at 3.03 pm Ms Whiting responded as follows,
".... Having regard to the medical assessment of Dr Luke Murphy, and your recent work attendance, I see no compelling reason to grant you an extension to the time provided to the Notice of intention to Terminate Your Employment letter. I acknowledge that the process is difficult that is why I provided you a two week timeframe with which to submit a response. This is also consistent with Dr Murphy's report that you should receive advance notice so that you can put in place appropriate support. If you do not provide a response by the close of business on 30 August 2019, I am intending to make a final decision based on information before me this includes your responses to the process today and, most recently, the Independent Assessor' report."
[59] For the reasons given by the Delegate I am satisfied that the refusal of an extension of time was not unreasonable. There was no medical evidence to the effect that the Applicant could not participate in the show-cause process.
[60] During the later course of events Mr Gao was supported by CPSU Delegate, Lisa Hauritz. On 20 August 2019 Ms Hauritz sent an email to the Applicant in the following terms,
The best anyone can advise you, is that you are best to resign asap.
[61] On 22 August 2019 the Commission conducted a conference in relation the Applicant's application for a Stop Bullying Order. At 4.39 pm on the day the Applicant requested a voluntary redundancy. At 3.13 pm on 23 August 2019 the Department advised the Applicant that his request for a voluntary redundancy had been declined.
[62] On Sunday, 25 August 2019 the following text message exchange occurred between Ms Hauritz and the Applicant,
Ms Hauritz (25/8 at 7.37 pm): "Ok. Long discussion with Glenn. VR decision, we can't do anything about it. If you let them terminate view and go to FW you will have no chance. It will get uglier and more horrible than what you have experienced so far. And there is no job you can earn from. And it will go from long time which means you won't be able to start recovering while you are fighting against them. Glenn's [advice] and my [advice] is strongly, that you resign....."
Mr Gao (25/8 at 8.48 pm): "I still want to explore the possibility of unfair dismissal. I will contact some no win no paid law firm tomorrow."
[63] At 11:44 pm on 25 August 2019 the Applicant wrote to Ms Hauritz advising that "The attached document has some information about the unfair dismissal. And I am interested in representing myself..."
[64] At 8.47 am on Monday, 26 August 2019 Ms Hauritz responded as follows,
"I strongly disagree with your decision to take this approach. I really think you should resign, to ensure you don't get a "termination" on your career record and start looking for a job.
Given how sick you are and how much this process so far has impacted on your health and family life, I don't think it is wise to keep fighting. If you take the termination and logic claim for unfair dismissal, you will lose and you'll be out of pocket and even more mentally, physically and financially scar. I don't know how you can find a new job fighting. I don't know how you can start to hear when fighting. So please talk to your wife again and consider what might be best for your family...."
[65] At 8.53 am on Monday, 26 August 2019 the Applicant responded to Ms Hauritz by text message as follows,
"After some research and discussed with my wife, we decided to take your advice and resigned to move on. Please advise on what to do next."
[66] At 3.30 pm on 26 August 2019, the Applicant:
sent an email to the Department (including Ms Conn);
wrote, "Please find attached Employee Separation Declaration" (ESD); and
placed a tick in the "resignation" box on the attached ESD.
nominated 30 August 2019 as the "separation date."
[67] At 1.54 pm on 27 August 2019 Ms Conn acknowledged receipt of the ESD.
[68] Under the Border Force Act 2015 the Applicant was required to give 14 days' notice of resignation. Ms Conn has delegated authority to accept a shorter notice period.
[69] At 4.21 pm on 27 August 2019 Ms Conn wrote,
"As delegate of the Secretary under s.29(2)(a) of the Australian Border Force Act 2015, I accept that Ming's resignation effective from 30 August 2019."
[70] The conduct of an employer must be assessed objectively: Ahadizad v ACT Optical.[15] It is not a question of what the Applicant perceived to be the conduct of the Department or his perceptions of its motivations. "Where ... the bearing [that the conduct of the employer] has on the decision to resign is based largely on the perceptions and subjective response of the employer made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary": ABB Engineering Construction Pty Ltd v Doumit.[16]
[71] Having carefully considered the evidence concerning the events that occurred in the lead up to the Applicant deciding to resign, I have reached the conclusion that the conduct of the Department did not give rise to circumstances that amounted to a dismissal within the meaning of s.386(1)(b).
[72] I am satisfied that, viewed objectively and considered in its entirety, the Department's processes were balanced, fair and reasonable. If there was any procedural misstep, it was minor. Further, I am satisfied that, on the whole, the officers of the Department behaved professionally. That is not say that the conduct of the Department and its officers was perfect. However, we do not expect perfection. In all the circumstances of this matter the conduct of the Department and its officers was what could be reasonably expected of it and them. The process leading to the Show-cause Letter was not unfair.
[73] The Show-cause Letter then provided another opportunity for procedural fairness.
[74] It is very clear from the evidence that, as at 16 August 2020 no definite decision had been made to terminate the Applicant's employment. The Show-cause Letter was a genuine opportunity for the Applicant to show why his employment should not be terminated. The fact that the Delegate had discounted alternatives to dismissal, but left open the question of dismissal, supports a finding that no definite decision had yet been made. The Show-cause Letter does not evidence a closed mind on behalf of the Delegate.
[75] Consequently, the Applicant was not placed in a position where he had no other choice but to resign. He could have actively engaged with the Show-cause Letter. That was the opportunity presented to him. He chose to pass up on that opportunity. He did so after receiving advice from the CPSU that his best option was to resign. He consulted with his wife. He carefully considered his options. He then decided to resign. To his CPSU representative he wrote,
"After some research and discussed with my wife, we decided to take your advice and resigned to move on. Please advise on what to do next."
[76] In his submissions the Applicant wrote "... I was persuaded by [my] union representative and decided to resign to avoid termination..."
[77] I am satisfied that Mr Gao's resignation was voluntary. He decided it was in his best self-interest to do so. The Applicant bears the sole responsibility for that decision. This finding is consistent with the authorities in Pacific National (NSW) Limited v Bell,[17] Hardwick v National Australia Bank Ltd,[18] and Knight v Wattly Australia Pty Ltd.[19]
[78] It is also important to bear in mind that the Applicant did not resign with immediate effect. This was not a case of him resigning in haste. He resigned on Monday, 26 August 2019 with effect on Friday, 30 August 2019. At no time during the intervening period did the Applicant seek to withdraw his resignation. At no time on the four business days after he resigned did the Applicant assert to the Department that he thought he had made a mistake or regretted the decision and wanted to retrack the resignation.
[79] The Department did not engage in conduct or a course of conduct that forced the Applicant to resign. There was no absence of effective or real choice. Having been served with the Show-cause Letter on 16 August 2019 the Applicant had other choices other than to resign. Consequently, in deciding to resign the Applicant exercised his free will to end the employment. He thought resignation would look better. There was no compulsion or inevitability in the resignation.
[80] Consequently, I find that the Applicant was not forced to resign from his employment because of conduct, or course of conduct, engaged in his employer.
[81] I find that the Applicant was not dismissed from his employment with the Department within the meaning of s.386 of the FW Act.
[82] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, but that there was no dismissal. Consequently, the application for an unfair dismissal remedy is dismissed.
[83]
[8] Pacific National (NSW) Limited v Bell (2008) 175 IR 208
[9] Neil Ashton v Consumer Action Law Centre [2010] FWA 9356
[15] [2015] FWC 1647, [7].
[16] Print N6999 (9 December 1996) AIRC (per Munro J, Duncan DP and Merriman C), p2.
Printed by authority of the Commonwealth Government Printer
Ming Gao
[2020] FWC 6842
(2008) 175 IR 208
(1995) 62 IR 200
(1996) 67 IR 154
The jurisdictional objection was upheld and the unfair dismissal application dismissed.
[6] Evidence for the Respondent was given by:
Ms Abigail Whiting, Assistant Secretary, People Services Branch, People and Culture Division, Corporate and Enabling Group (Ms Whiting was in this role from 28 September 2018);
Ms Belinda Rae Conn, Director, Health and Digital Correspondence Section, ICT Division, Technology and Major Capability Group and Mr Gao's supervisor from 20 March 2019 until the Applicant's employment ceased; and
[7] Following the hearing the Deputy President issued clarifying directions on 7 April 2020 in respect of Ms Whiting's evidence.
[8] On 1 May 2020, on receipt of the material from the parties the Deputy President advised the parties that a further hearing was not required.
[9] On 7 August 2020 the matter was reallocated to me after the untimely death of the Deputy President. In coming to this decision, I have had regard to all of the material that was before the Deputy President. Because of the volume of material and the need to reconsider it in its entirety this decision is regrettably being delivered outside the Commission's benchmarks.
[16] On 26 June 2018, Ms Conn (the Applicant's then Director) wrote to Mr Ian Arthur (Acting Director of Case Management Services). Ms Conn recommended that Step 2 of the PIP be initiated for the Applicant.
[17] On 11 July 2018, Mr Ian Arthur wrote to the Applicant to advise of his preliminary decision to initiate the Step 2 Assessment Period.
[18] On 29 June 2018, the Department received a report from Dr Scott Chambers that "a continuation with the performance improvement process is likely to exacerbate... [the Applicant's] anxiety". The Department on 12 February 2019 then sent the Applicant for an independent assessment with Dr Luke Murphy, a forensic psychiatrist, to assess his fitness to participate in the performance management process. Dr Murphy found the Applicant fit to perform all duties inherent to his role, including performance management and attending work regularly. Dr Murphy also indicated that the Applicant should be given substantial advance warning of the Step 2 Assessment Period to enable the Applicant to organise additional support.
[19] Following this, the Applicant ceased reporting to Ms Loh and started reporting to Ms Conn.
[20] After consultation with the Applicant, the Department commenced the Step 2 Assessment Period on 28 May 2019. Step 2 concluded on 26 July 2019.
[21] An Independent Assessor was appointed for this process, Mr Austin, who assessed that the Applicant had failed to attain the appropriate standards for some tasks assigned to each goal and that the Applicant "had not demonstrated consistent performance against the goals within your PIP at the EL 1 classification level, against the following capabilities." Accordingly, Mr Austin concluded that the Applicant had not attained or sustained the required standard of work performance at the EL 1 classification level.
[22] The Applicant filed an Application for an Order to Stop Bullying on 30 July 2019 and the matter was subsequently listed for conference at the Fair Work Commission on 22 August 2019.
[23] On 16 August 2019 the Applicant received a letter (Show-cause Letter) from Ms Rebecca Taylor (Director of Case Management Services), who was delegated by the Secretary to make a decision and advise what, if any, action to be taken. The letter advised the Applicant of the preliminary decision to terminate the Applicant's employment. This letter provided the Applicant until 30 August 2019 to provide any reasons as to why his employment should not be terminated.
[24] On 19 August 2019 at 8.57am, the Applicant sent an email to the Department. Attached to the Applicant's email was a medical certificate and correspondence from two psychologists. He wrote he would delay his response. The Department treated the email as a request for an extension of time.
[25] On 21 August 2019 the Department declined an extension of time
[26] On 22 August 2019:
the Commission conducted a conference in relation the Applicant's application for a Stop Bullying Order.
the Applicant requested a voluntary redundancy.
[27] On 23 August 2019 the Department advised the Applicant that his request for a voluntary redundancy had been declined.
[28] On 26 August 2019, the Applicant resigned. He nominated 30 August 2019 as the "separation date."
[29] Later that afternoon the Department accepted the resignation.
[30] The employment ended on 30 August 2019.
[31] On 18 September 2019 the Applicant commenced the present unfair dismissal application.
The process had been conducted without consideration to the Applicant's health and wellbeing. This only hardened the Applicant's conclusion that the Department was determined to dismiss him.
He was intending on not resigning but being terminated and lodging an unfair dismissal application, however his union representatives had convinced him to avoid dismissal as it might affect his future employment options.
[51] The Respondent stated that despite the abovementioned possible actions, Mr Gao chose to resign voluntarily and that his application should therefore be dismissed.
[52] In its reply submissions, drawing on Mr Gao's witness statement and the statement of Ms Hauritz, the Respondent submitted that Mr Gao made a considered choice after receiving advice from the CPSU to resign rather than to seek to convince the decision maker that his employment should not be terminated. The Respondent posited that Mr Gao made this choice to reflect his own interests and that he had an opportunity to seek to convince the Respondent to retain him. The Respondent cited several additional authorities which it contended indicated that these circumstances did not amount to a forced resignation. Those authorities were Pacific National (NSW) Ltd v Bell (Bell)[10], Hardwick v National Australia Bank Ltd[11], Phillip Knight v Wattyl, Australia Pty Limited[12] and Mr David Hamann v Thiess Pty Ltd[13].
He attended work because he had used up his sick leave. He felt that if he did not attend work from 10 to 3pm for those days other Ms Conn would raise a misconduct again him.
On 19 August 2019 he requested an extension of time.
As at 19 August 2019 Dr Flynn's medical report was the most recent medical evidence the Department had received. This report said:
The report did not say the Applicant was not coping at work because this was the first time the Applicant had seen the psychiatrist. He agreed that Dr Flynn's report of 19 August 2019 was the most recent medical material he had provided to the Department.
He agreed he had never received any formal correspondence from the Department offering him a voluntary redundancy.
He thought Ms Taylor was only on leave and did not realise that Ms Whiting was the final decision maker. He did not pay attention to the part in the email (from Ms Whiting) which said: