Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] Mr Benny Kee has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy with respect to his alleged dismissal by Century Yuasa Battery Pty Ltd (Century).

[2] Century raised a jurisdictional objection to the Fair Work Commission (the Commission) dealing with the application on the basis Mr Kee had resigned his employment and therefore was not dismissed on its initiative.

[3] At a hearing before me in Brisbane on 23 May 2017, Mr Kee represented himself. Century was represented by Mr Stewart Rinkevich, Senior Adviser - Workplace Relations of Ai Group. The following witnesses gave evidence:

• Mr Kee;

• Mr Christopher Thomas, Human Resources Manager; and

• Mr Paul Doherty, Assembly Facility Manager.

[4] A person can only have been unfairly dismissed if, amongst other things, the person has been dismissed.[1] The Act defines 'dismissed' in s.386 to mean:

(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."

[5] It is not disputed Mr Kee had been employed by Century for a period of approximately 4.5 years as an Assembly Technician. Mr Doherty's evidence is that Mr Kee performed and conducted himself satisfactorily, and there was no reason for Century to consider dismissing Mr Kee.[2]

[6] Prior to 2017, Mr Kee had applied for and been granted a period of unpaid leave.[3] During 2016, Mr Kee was experiencing some pain in his hands and neck which he attributed to his work duties of "crimping thick battery interconnecting power cables and fine wires for controllers".[4] He did not advance a workers' compensation claim.

[7] Mr Kee considered that a break from work would help alleviate the pain he was experiencing, and he decided to make plans to visit his adult daughter living in the USA. He also considered that an absence from the workplace would not cause the business much difficulty as it is his evidence that he was working across various departments. In early January 2017, Mr Kee spoke with Mr Doherty and requested "a few weeks' leave"[5] in order to travel to the USA. Mr Doherty responded that he would be happy to allow Mr Kee time off work equal to his accrued annual leave together with a few extra days of unpaid leave.

[8] Mr Kee then booked flights that would require him to be off work between 26 February 2017 and 12 July 2017, a period of 4.5 months. On 11 January 2017, Mr Kee emailed Mr Doherty his itinerary. Mr Doherty spoke with Mr Thomas and between them they determined Mr Kee would not be authorised to take such an extended break from work.

[9] On 11 January 2017, or certainly no later than by 13 January 2017, Mr Doherty informed Mr Kee that Century would not grant him extended unpaid leave for the period sought. Mr Doherty informed Mr Kee the business would accommodate Mr Kee taking his 15 days of accrued annual leave, together with a few days of unpaid leave.

[10] Mr Doherty stated to Mr Kee that if he did go on an extended break and did not return without Century's authority it would consider that he had abandoned his employment. Mr Doherty stated that in the alternative, Mr Kee was welcome to consider resigning his employment.

[11] On Monday, 16 January 2017, while attending work, Mr Kee left a hand-written note on Mr Doherty's desk dated the same date. The note stated:

Paul, I need to be away for 3 months overseas in USA with my family. Per your suggestion due to the long break I am leaving the company on 15th of February 2017.

Please be inform (sic) I will be taking my leave accrued before the last day on 15th February 2017..."

[12] Mr Kee's evidence is that he was aware he had to give one month's notice of his termination of employment.

[13] On 18 January 2017, Mr Doherty forwarded to Mr Thomas the resignation letter, and Mr Thomas then commenced the process of an employee termination through Century's payroll procedures. That same day, a draft 'Termination of Employment' form was sent by Mr Thomas to Mr Doherty with some boxes ticked, one noting that the reason for termination was 'relocation (e.g. moving interstate). Mr Doherty signed the form, making only one change to the document before he returned it to Mr Thomas on the same day. Mr Doherty ticked 'No' to the question, "Rehire - recommended for re-hire?"

[14] The termination of employment form was processed by Century's payroll department on 2 February 2017.

[15] Mr Kee's evidence is that he became unwell halfway during the workday on 17 January 2017. He was not at work on 18 and 19 January 2017. He was not well enough to attend work on 27 January 2017. On 31 January 2017 he saw Century's company doctor while on rounds and was prescribed Voltaren. He did not attend work on 1 and 2 February 2017.

[16] Mr Kee agrees he worked the following days in January 2017 following his resignation: 16, 17 (half day), 20, 23, 24, 25, 30 and 31.

[17] Mr Kee was experiencing further pain, requiring him to undertake intensive physiotherapy treatment. Mr Kee said in evidence, "I made the decision to change my trip duration and had to sacrifice my air ticket. As I was still working in the company, I decided to withdraw my resignation."[6]

[18] On 6 February 2017, Mr Kee met with Mr Doherty and informed him he wished to withdraw his resignation. He handed to him a hand-written note stating:

Paul, I am not traveling overseas in view of my current medical condition. I need to do follow up tests and consultations with my treating doctor.

As such please withdraw my resignation and cancel my annual leave..."

[19] Mr Doherty immediately went to speak with Mr Thomas. Mr Doherty's evidence is that Mr Thomas did not approve the withdrawal of Mr Kee's resignation. Mr Thomas' evidence is that he gave advice that it would not be allowed, and it was Mr Doherty's decision to make.

[20] Mr Thomas prepared a draft letter for Mr Doherty to complete and sign to give to Mr Kee. The letter stated:

On 16th January 2017 we received your resignation in writing from your position as an Assembly Technician with Century Yuasa Batteries. The resignation stated your last day of employment to be 15th February 2017. We accepted your resignation at that point.

You have since written to us on 6th February 2017 wishing to withdraw your resignation. As we had already accepted your resignation on 16th January 2017, we do not wish to change our decision and as such, your resignation still stands and we expect you to finish employment with Century Yuasa Batteries on 15th February 2017.

In terms of cancelling your annual leave, which was due to commence on 7th February 2017 until 15th February 2017, we're happy to do that however we will pay out your notice period up until the 15th February 2017 and you can have your annual leave balance paid to you on upon termination instead. As such you (sic) last physical day at work will still be 6th February 2017.

We wish you all the best in your future endeavours.

[21] A meeting was held between Mr Kee, Mr Doherty and Mr Thomas where Mr Kee was issued with the above letter. Mr Kee was very upset upon learning Century would not accept the withdrawal of his resignation. He did, however, continue to work until his normal rostered time on 6 February 2017, and as per Century's decision, he was paid for the period 7 February 2017 to 15 February 2017. His entitlements to annual leave payment were made following 15 February 2017.

[22] Mr Kee cited earlier issues he considered were a factor in the decision not to accept the withdrawal of his resignation. He claimed he had been involved in a workplace accident in his first year of employment, and there were further incidents where he considered safety was not a high priority of the business.

[23] He also considered he was denied an opportunity of an interview for a role he coveted, with a younger person hired. Further, Mr Kee claimed to be subject to workplace bullying by a leading hand in September 2016, where Mr Kee was ultimately admonished over the incident for not following the lawful direction of the leading hand.

[24] In the unfair dismissal application form completed by Mr Kee, he asserted, "By forcing me to resign even though I submitted a withdrawal of my resignation is like handing me a termination letter. If I voluntarily resign I believe I have the option to cancel my termination before date of actual termination."

[25] Mr Kee submitted that he considered Mr Doherty had approved him taking a period of long, unpaid leave, and on that basis he then booked his flight. Only after Mr Doherty then checked with Mr Thomas was his 'approved' leave then not approved. He considered that he was forced to resign because of company policy and he had nobody else to turn to; his immediate manager would not approve the leave, nor would HR.

[26] While struggling with medical issues following his resignation, and then disappointingly having to cancel his travel arrangements, he considered Century should accept the withdrawal of his resignation if he was a satisfactory employee. He submitted that because Century became aware of his on-going medical condition, it is for that reason the withdrawal of his resignation was not accepted.

[27] Mr Kee submitted that because of Mr Doherty's statement that his proposed long absence would not be approved, he considered he had no other option but to resign his employment. He considered he had to do so under duress, and for that reason he wrote on the resignation letter, "per your suggestion". It is Mr Kee's submission that pursuant to s.386(1)(b) of the Act, he was forced to resign to be able to access the long period of leave because of conduct, or a course of conduct engaged in by Century.

[28] It is submitted by Century that Mr Kee resigned his employment of his own free will, and there is no evidence to support a finding that the decision was taken or forced by any initiative on the part of Century. Mr Kee resigned his employment to suit his own purposes.

[29] Referring to a Full Bench of the Industrial Relations Commission in Ngo v Link Printing Pty Ltd[7], Century contended that it could not be said that Mr Kee made a decision to resign his employment 'in the heat of the moment'. The Full Bench stated:

"[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].

[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110-111).

[18] In Mr Ngo's case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it."

[30] In Kwik-Fit (GB) Ltd v Lineham,[8] Wood J stated:

"...Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure... We refer to these as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk."

[31] Century submitted that no special circumstances existed for it to be compelled to consider Mr Kee's attempt to withdraw his resignation. He had continued working, but for some days when he was off sick. He had attended for work on at least six occasions and until 6 February 2017, when Mr Kee changed his mind, it considered he was leaving the business on 7 February 2017 on annual leave, and finishing up on 15 February 2017. This was not a case where Mr Kee could be said to have resigned his employment in the heat of the moment.

[32] Further, Mr Kee had contemplated his resignation the weekend prior to submitting it on Monday, 16 January 2017. It is submitted he had adequate time to deal with the disappointment of learning his leave was not approved, and it was a decision he made freely to resign his employment. It is submitted that he was not forced to do so by any conduct of Century.

[33] In order for Mr Kee to succeed in demonstrating a 'constructive dismissal', he must satisfy the Commission that the resignation on 16 January 2017 was forced, or not voluntary.[9] Mr Kee must prove that Century engaged in conduct or a course of conduct which forced him to resign.[10]

[34] I do not accept that Mr Doherty had knowledge prior to 11 January 2017 in his discussions with Mr Kee that Mr Kee intended to have a period of 4.5 months off work. I find Mr Kee informed Mr Doherty he wished to have some time off, and Mr Doherty informed him he could have "a few weeks' leave".

[35] I do not accept Mr Kee was under any impression that such a lengthy period of leave had been approved prior to him making his airline booking. Upon informing the business of his intention to take the period of leave as annual leave and then unpaid leave, he was formally advised of Century's rejection of such request.

[36] Understandably Mr Kee was disappointed with the decision made by Century. He considered that he had been at a loose end moving from department to department, and it would not be a terrible inconvenience to the business to have him away for the period of time sought.

[37] I find it is the managerial prerogative of Century to have denied Mr Kee the period of leave sought. The business was prepared to allow Mr Kee a period of his accrued annual leave, plus a few additional days of unpaid leave. This was not an unreasonable alternative put to Mr Kee.

[38] Mr Kee had at least the weekend to consider his position. Although the concept of Mr Kee resigning his employment was put by Mr Doherty as a suggestion, there is no basis to find that Century had any desire for Mr Kee to resign his employment. Ultimately, Mr Kee made the decision in his own interests. At the time of resigning his employment, Mr Kee considered that he was well enough to travel to the USA for the extended period of time. There was no act at the hands of Century to have forced him to come to that decision.

[39] While it may have been a decision he did not wish to make, because his preference would have been to have returned to a job, I do not find that Mr Kee was under any duress to resign his employment. This was not a circumstance where Mr Kee acted in the heat of the moment and resigned his employment.

[40] While I have had regard to the issues raised by Mr Kee in [22]-[23], I find they did not contribute to the reason Mr Kee chose to resign his employment. He may have been generally unhappy about some issues at work, but they did not play any part in the decision Mr Kee made to leave his workplace, travel overseas and have a break from what he considered to be repetitive manual work.

[41] If Mr Kee did hold general concerns about his workplace and dissatisfaction in having nobody with whom he could discuss workplace issues with, he did not express those concerns to his employer. There is no causal connection of these issues and the decision made by Mr Kee to seek to end his employment by 15 February 2017.

[42] It was only when Mr Kee discovered he was not well enough to travel for a lengthy period of time did he seek to withdraw the resignation. Mr Kee was attending for work between 16 January 2017 and 6 February 2017 (except for absences when he was unwell). Between this period of time his plans were to travel.

[43] I do not find that there were any 'special circumstances' which would warrant a finding that Century should have accepted Mr Kee's withdrawal of his resignation. Mr Kee voluntarily resigned his employment and attended work for a considerable period of time. It was only when his future plans changed did he seek to rescind the resignation. In the circumstances, Century was not under any obligation to agree to the withdrawal of the resignation.

[44] Even if Century did have concerns by 6 February 2017 as to Mr Kee's fitness for work (to which I have not made a finding), and considered he may pose a risk of injury to himself, Century was not under an obligation to agree to the withdrawal of the resignation.

[45] For the reasons set out above, I am satisfied that Mr Kee resigned his employment with Century on his own initiative. Mr Kee was not forced to resign because of conduct, or a course of conduct engaged in by Century. I find Mr Kee's employment was not terminated on Century's initiative.

[46] Accordingly, Mr Kee was not dismissed within the meaning of s.386(1) of the Act. I therefore uphold Century's jurisdictional objection and I must dismiss the application.

[47] The application is dismissed.

[1] See Fair Work Act 2009 (Cth) s.385(a).

[2] Statement of Mr Paul Doherty at [2].

[5] Statement of Mr Paul Doherty at [3].

[6] Statement of Mr Benny Kee at [8] and [9].

[7] (1999) 94 IR 375

[8] [1992] ICR 183 at [188].

[9] Hardwick v National Australia Bank Limited [2017] FWC 354, Asbury DP at [96].

[10] Australian Hearing v Peary [2009] AIRCFB 680, Full Bench at [30].

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