Fair Work Act 2009

Section 394 - Application for unfair dismissal remedy

Re-Engage Youth Services Incorporated T/A Re-Engage Youth Services

Application for an unfair dismissal remedy - jurisdictional issue - whether employee resigned or was dismissed - claim of dismissal at employer's initiative - section 386(1)(a) criteria not made out - claim of forced resignation - meaning of section 386(1)(b) - annual leave request refused - operational basis for refusal - employee resignation made under pressure of difficult choice - real and effective choice exercised - not forced resignation

Employer unilaterally paid out and shortened notice period before resignation took effect - whether dismissal at initiative of employer - section 386(1)(a) - employer conduct in substitution of resignation - employee dismissed during notice period - dismissal harsh, unjust and unreasonable - compensation ordered

[1] Mr Christopher Patterson applied to the Fair Work Commission (the Commission) under section 394 of the Fair Work Act 2009 (the FW Act) for an unfair dismissal remedy in relation to his (alleged) dismissal by Re-Engage Youth Services Incorporated (Re-Engage or 'the employer'). He claims to have been unfairly dismissed on 10 July 2017, with the dismissal taking effect that day. He says his dismissal took the form of a forced resignation. His application sought orders for reinstatement or alternatively monetary compensation. At the hearing he sought compensation only.

[2] In the further alternative, Mr Patterson says that if he was not dismissed by forced resignation on 10 July 2017 then he was dismissed by decision of the employer on 10 July 2017 to bring his employment to an end effective 24 July 2017 rather than 31 July 2017 as he had notified.

[3] Re-Engage oppose the application and raise a jurisdictional issue. The employer says that Mr Patterson was not dismissed but resigned from his employment. In the alternative, it says that Mr Patterson was not unfairly dismissed because he breached workplace policies and procedures. It says that its decision to bring forward by a week the date his resignation took effect was not a dismissal. It further says in the alternative, that if an unfair dismissal is found, it opposes any order for reinstatement and says that compensation should be limited to payment of the extra week of notice Mr Patterson had been denied.

[4] Conciliation of the matter on 31 August was unsuccessful. I heard all matters (jurisdiction, merit and remedy) in Adelaide on 25 and 27 October 2017. A decision was reserved.

[5] A contested matter concerning representation arose prior to the hearing. The employer, which at that stage was not legally represented (but was receiving assistance from a paid agent), opposed Mr Patterson being so represented. By decision dated 20 October 2017[1] I granted Mr Patterson permission to be legally represented. In the interests of fairness, I also granted permission to Re-Engage. At the hearing, both parties were legally represented.

[6] Re-Engage is a not-for-profit association. It assists vulnerable young people from disadvantaged socio-economic backgrounds. It offers case management and programme delivery services designed to address barriers in education, employment and the community. It is currently contracted by the State Department of Education and Child Development (the Department) to provide educational services. One such contract is to provide services to an Independent Learning Centre (the Centre) linked to secondary schools in regional South Australia at Millicent and Mount Gambier. Re-Engage is headquartered in Adelaide, but employs case managers in Mt Gambier where service delivery is needed.

[7] Mr Patterson is a 70-year old former solicitor and police officer with a background in criminal investigation. Rather than retiring, in March 2013 he commenced employment at the Independent Learning Centre in Mount Gambier. Between March 2013 and June 2015 he was directly employed by the Department. In June 2015 he accepted employment with Re-Engage in a more senior role of Case Manager at the Centre following a decision by the Department to contract-out the delivery of these services. He remained employed by Re-Engage as a Case Manager until July 2017. His employment was a series of rolling fixed term contracts, the most recent being a 12-month contract commencing on 24 December 2016 and concluding on 22 December 2017.[2] His employment was also governed by a modern award, the Social, Community, Home Care and Disability Services Industry Award 2010.[3]

[8] Mr Patterson's application was lodged within the statutorily required 21 days after his dismissal took effect.

[9] It was common ground between the parties that Mr Patterson was a person protected from unfair dismissal under the FW Act (section 382). The (alleged) dismissal was not governed by the Small Business Fair Dismissal Code (section 385(c)) nor was the termination a case of genuine redundancy (section 385(d)). On the evidence, I am satisfied this is correct.

[10] Three issues arise for decision: first, was Mr Patterson dismissed within the meaning of the FW Act; second, if so, was the dismissal unfair within the meaning of the FW Act (that is, was it "harsh, unjust or unreasonable" having regard to the factors in section 387); and third, if so, what is the appropriate remedy?

[11] Under the FW Act, a person can only be "unfairly dismissed" if they have been "dismissed" (section 385(a)).

[12] Section 386 of the FW Act provides that:

• (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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person's employment, to avoid the employer's obligations under this Part.

[13] The provisions of section 386(2) and (3) do not apply in this matter.

[14] Having raised the jurisdictional issue, Re-Engage bears the legal onus of establishing that Mr Patterson was not dismissed. However in circumstances where an employee resigns but claims their resignation was, at law, a dismissal an evidentiary burden exists on the employee to establish that the termination was at the initiative of the employer or forced by the employer's conduct.[4]

[15] In this matter it is not in dispute that Mr Patterson resigned in writing by email sent at 8.20am on Monday 10 July 2017. The circumstances leading up to that email, its content and the employer's response to it are discussed later in this decision.

[16] The definition of dismissal in section 386(1) has two elements: dismissal at the initiative of the employer, and forced resignation. Consistent with a recent decision of a Full Bench of this Commission,[5] during the hearing I drew the attention of counsel for both Mr Patterson and Re-Engage to the provisions of section 386(1) and these two elements. Although Mr Patterson's originating proceeding only referred to section 386(1)(b), counsel for Mr Patterson made oral submissions advancing the application under both limbs of section 386(1), being 386(1)(a) termination on the employer's initiative, and 386(1)(b) forced resignation. I deal with both of these submissions in this decision.

[17] The legal principles governing the application of section 386(1) are well established. Together with an analysis of its legislative history, they were recently set out by a Full Bench of this Commission in Bupa Aged Care Australia Pty Ltd v Tavassoli[6] as follows:

"(1) There may be a dismissal within the first limb of the definition in section 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the "heat of the moment" or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although "jostling" by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(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 section 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 probable 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."[7]

[18] Although decided under a previous Act,[8] the following approach of the Full Bench of the Australian Industrial Relations Commission in O'Meara v Stanley Works Pty Ltd[9] remains generally relevant to the consideration of section 386(1):

"In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee."

In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

"Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."

In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to 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. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."[10]

[19] Although determined by the English Court of Appeal, the following approach taken in CF Capital PLC v Willoughby[11] is also generally consistent with that of Australian courts and tribunals:

"37. The 'rule' is that a notice of resignation or dismissal (whether given orally or in writing) has effect according to the ordinary interpretation of its terms. Moreover, once such a notice is given it cannot be withdrawn except by consent. The 'special circumstances' exception as explained and illustrated in the authorities is, I consider, not strictly a true exception to the rule. It is rather in the nature of a cautionary reminder to the recipient of the notice that, before accepting or otherwise acting upon it, the circumstances in which it is given may require him first to satisfy himself that the giver of the notice did in fact really intend what he had apparently said by it. In other words, he must be satisfied that the giver really did intend to give a notice of resignation or dismissal, as the case may be. The need for such a so-called exception to the rule is well summarised by Wood J in paragraph 31 of Kwik-Fit's case and, as the cases show, such need will almost invariably arise in cases in which the purported notice has been given orally in the heat of the moment by words that may quickly be regretted.

38. The essence of the 'special circumstances' exception is therefore that, in appropriate cases, the recipient of the notice will be well advised to allow the giver what is in effect a 'cooling off' period before acting upon it. Kilner Brown J, in paragraph [15] of his judgment in Martin's case understandably referred to such a period as an opportunity for the giver of the notice to recant, or to withdraw his words; and this is in practice what is likely to happen. I would, however, be reluctant to characterise the exception as an opportunity for a unilateral retraction or withdrawal of a notice of resignation or dismissal since that would be to allow the exception to operate inconsistently with the principle that such a notice cannot be unilaterally retracted or withdrawn. In my judgment, the true nature of the exception is rather that it is one in which the giver of the notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place - that, in effect, his mind was not in tune with his words."

[20] I apply these principles and, in the context of the current statutory scheme, particularly the full bench observations in Bupa Aged Care Australia Pty Ltd v Tavassoli, in determining this matter.

[21] I issued pre-hearing directions requiring the filing of written witness statements.[12] Four witnesses gave oral evidence in support of written statements lodged with the Commission: Mr Patterson for himself and three witnesses which he called being a former Team Leader of Re-Engage Amanda Grzyb, a current Case Manager of Re-Engage Jennifer Ferguson and the current Manager of the Independent Learning Centre at Mt Gambier David Burt. Mr Burt was not an employee of Re-Engage, but the representative of its client.

[22] The Chief Executive Officer (CEO) of Re-Engage Suzanne Curyer was the sole witness for the employer.

[23] While many of the relevant facts are not in dispute, there are differing versions of events on some relevant facts requiring me to make findings on contested matters. To a degree, this involves issues of credit, particularly concerning aspects of the evidence of Mr Patterson and Ms Curyer who were the primary participants in the case before me. The evidence of Mr Patterson, particularly as it relates to the circumstances surrounding his intention to take annual leave, and the evidence of Ms Curyer, particularly as it relates to her decision to refuse Mr Patterson's leave request and then accept his emailed resignation but proceed with a disciplinary meeting and pay out a shortened period of notice fall into these categories and were the subject of extensive cross-examination.

[24] Mr Patterson gave evidence in a clear and open manner. His recollection of events was reasonable and he was willing to make appropriate concessions in cross examination. On some matters of detail his recollection was hazy or needed to be refreshed, and there were some inconsistencies and some gloss placed on his version of events. However, as a whole he was a truthful witness. I generally prefer his evidence to that of Ms Curyer where there is a clash, although I form my own view as to whether opinions he expressed in his evidence were reasonably held.

[25] Ms Curyer was a poor witness. She was clearly nervous and unfamiliar with the hearing room environment. I do not consider that she was seeking to be unhelpful or untruthful. Nor was all of her evidence contested or, as a whole, unreliable. However, her evidence was accentuated by long pauses and excessive requests for questions to be repeated which conveyed the impression that she was not just exercising care in her answers but wanting her answers, even in cross examination, to exactly fit the narrative of her witness statement. Her unwillingness to concede ground in cross examination where ground self-evidently needed to be conceded made her appear uncomfortable and self-serving. That said, the overall evidence of the employer is a combination of documentary and oral evidence and, whilst certain caution is required, cannot be discounted in a general sense.

[26] Mr Burt's evidence was largely confined to the manner in which the Centre could (and had) accommodated leave requests in the past, and a conversation he had with Ms Curyer concerning Mr Patterson's leave request. Mr Burt's evidence was honestly presented. Aspects of it were hearsay; on those matters I place lesser weight.

[27] Ms Ferguson's evidence was limited to conversations she had on 30 June and to her experience with seeking and being granted annual leave. It was brief, but presented truthfully.

[28] Ms Grzyb left the employ of Re-Engage in March 2017. Her evidence did not relate to the circumstances of the alleged dismissal. It concerned past practice of previous Re-Engage management concerning annual leave requests. It was a combination of fact and opinion. It was presented truthfully but was of limited scope and relevance.

[29] Counsel for Mr Patterson invited me to draw an adverse inference (of the Jones v Dunkel[13] kind) against the employer's evidence for not calling a current Team Leader Lee Anderson. Ms Anderson was Mr Patterson's supervisor at the relevant times. The documentary and oral evidence does indicate that Ms Anderson had some involvement in the circumstances surrounding the alleged dismissal. However the absence of oral evidence from Ms Anderson does not create a vacuum in the evidence as a whole. Whilst I approach the documentary evidence under the hand of Ms Anderson with a degree of caution given that she was not cross examined on it, by and large it does not disclose contested facts. Whilst she was in communication with Mr Patterson and Ms Curyer at relevant times, she was not the employer's decision maker, and both Mr Patterson and Ms Curyer were examined and cross examined on their dealings with Ms Anderson. I am in a position to reliably find facts, draw conclusions from facts and determine this matter without drawing the inference sought. I decline to do so.

[30] I am not bound by the rules of evidence but consider them to be a good and useful general guide. I adopt the approach of the Full Bench of this Commission which recently said:

"The Commission is obliged by statute to perform its functions in a manner that is fair and just pursuant to s. 577(a) of the Act. Although it is not bound by the rules of evidence and procedure, the Commission tends to follow the rules of evidence as a general guide to good procedure. However, that which is ultimately required is judicial fairness, and that which is fair in a given situation depends on the circumstances."[14]

[31] Some of the oral evidence and evidence in witness statements tendered strayed into the field of irrelevant considerations, hearsay, opinion and assumption. I place reduced levels of weight on such evidence except where it is corroborated by direct evidence, is uncontested or is inherently believable.

[32] I determine this matter on the basis of all the evidence and submissions before me.

Events Leading Up to Mr Patterson's Resignation

[33] I make the following findings on the basis of the evidence before me.

[34] Mr Patterson's nephew passed away suddenly in Thailand in April 2016. In December 2016 his wife booked airline tickets for herself and Mr Patterson and his nephew's parents to have a four-person family holiday in Thailand on a date close to his late nephew's birthday. Mr Patterson's wife booked the tickets around her work availability and the availability of the other parties, and in January 2017, when the tickets were paid for, told Mr Patterson that the travel dates were from 10 to 23 August 2017.[15]

[35] Mr Patterson intended to take the trip as it was a family holiday of personal significance.[16]

[36] From January 2017 Mr Patterson knew he required two week's leave from Re-Engage to take the trip. He knew the trip was in school term when students would be at the Centre where he worked. He knew that it was "not ideal" to be away during term time.[17] Mr Burt put it more starkly in his evidence. He said that leave of absence during school term "is a difficult situation to manage" having regard to a departmental guideline requiring a ratio of 25 students to one full time case manager. He accepted though that the guideline could not and had not been slavishly applied in all circumstances.[18]

[37] Mr Patterson did not raise the issue of his intended leave with Re-Engage until 31 May 2017 when he spoke to his supervisor Ms Anderson. From January 2017 until May 2017 he had assumed his leave would be approved once he requested it.[19] He became concerned in May 2017 that the newer management of Re-Engage (Ms Anderson and Ms Curyer) may apply a stricter approach to requests for leave in school term than past managers. He regarded his 31 May discussion with Ms Anderson as a request for leave but did not submit a formal leave request form, considering the informal approach to be consistent with past practice.[20]

[38] By email dated 5 June 2017 Mr Patterson was advised by the Manager of Youth Programs (Ms Vonic-Joyce) that his leave request was refused because it was during term time.[21] He responded on 6 June advising that he and his wife would lose $3,000 in airfares. Later on 6 June the CEO Ms Curyer sent Mr Patterson an email explaining Re-Engage's decision, asserting that it was his responsibility to have leave approved before making financial commitments.[22] He replied on 7 June reiterating his position, and asserting that the trip had been booked when a more "employee friendly" administration was in charge.[23]

[39] On 16 June 2017 Mr Patterson sought the assistance of a former Centre Manager Mr Bell. He told Mr Bell that he would feel forced to resign if his leave wasn't granted.[24] He emailed Mr Bell his chain of emails with Re-Engage. Mr Bell alerted the current Centre Manager Mr Burt.[25] Mr Burt then telephoned Ms Curyer and then, at a later date, Ms Anderson. He was told by Ms Curyer that a formal leave request form had not been submitted. He was told by Ms Anderson that the dispute was between Mr Patterson and Re-Engage. He did not specifically indicate that he supported the granting of leave, rather that he wanted the issue resolved without Mr Patterson's resignation. He told Ms Anderson that "Chris's resignation was not an appropriate outcome for this dispute".[26]

[40] On 19 June 2017 Mr Patterson advised Ms Anderson by SMS text message that he was unwell and would not be attending work that week. He had a medical certificate to support his absence.[27] His evidence was that he was unwell due to the stress of having his leave refused.[28] I accept this evidence.

[41] Mr Patterson did work the week of 26 June. It was school holidays. Students were not around but the Centre needed to be staffed and the potential existed that a student would require assistance from a case manager. On Friday 30 June 2017 Mr Patterson was due to clock off at 3pm. After lunch, he decided to go for a walk at about 1.30pm. He left the Centre without authorisation and without telling anyone. He went for a walk. It was a long walk. He did not return to work. He returned later that afternoon to his car and drove himself home. After being advised by Ms Ferguson that she was at the Centre alone,[29] and noting that this was contrary to Ms Curyer's expectation relating to staff safety and security, Ms Curyer and Ms Anderson tried to contact Mr Patterson by phone at the Centre and on his mobile. They were unsuccessful. Concerned for his wellbeing and for the staffing at the Centre they secured his emergency contact details and at 6pm that evening rang his wife. She was at work, and did not know his whereabouts. At about 7pm Ms Curyer successfully contacted Mr Patterson on his mobile. He was home. He acknowledged to her that he had not sought permission to be absent from the workplace.[30] I accept Re-Engage's evidence that Mr Patterson's absence that afternoon was contrary to his employment obligations and contrary to its obligations to the Department.[31] I also accept Mr Patterson's evidence that he was trying to clear his mind and was not thinking clearly.[32]

[42] The following Monday 3 July 2017 Mr Patterson again advised Ms Anderson by SMS text message that he was unwell and would not be attending work in that week. He again had a medical certificate to support his absence.[33] Again his evidence was that he was unwell due to the stress of having his leave refused.[34] I accept this evidence.

[43] On 6 July 2017, whilst absent from work, Mr Patterson was sent an email by Ms Curyer in the following terms:[35]

At 11.30am Monday 10 July 2017 you are required to attend a meeting with Lee Anderson and myself (I will be joining via teleconference). The meeting place will be confirmed by Lee Anderson via email shortly.

This meeting is to be attended in person. The purpose of the meeting is to discuss your work performance relating to unauthorised absences from the workplace and breaches of policy and procedures with regard to advising your line manager of your need to take personal leave. You are welcome to be accompanied by a support person. Would you please let me know by 9am on Monday if you will be bringing a support person and their name.

If you wish to claim personal leave for this week's absence, please bring a medical certificate to the meeting. Failure to do so will result in leave without pay being processed in the next pay run.

[44] Mr Patterson's evidence, which I accept on this point, was that he considered this email to represent a form of performance management. Receiving it added to his stress leading him to conclude that "this whole situation was just getting completely out of hand".[36]

[45] Mr Patterson attended for work on Monday 10 July. Sitting at his desk in the Centre at 8.20am that morning he typed and sent the following resignation to Ms Anderson and Ms Curyer:[37]

In accordance with my contract and Item 12 of the Schedule I am giving 3 weeks notice that I will be leaving Re-Engage. Having regard to both medical advice and legal advice I will decline any discussions regarding the matters that I have been subject to over a recent period.

[46] At 9.56am Mr Patterson received an electronic notification from Ms Curyer that the 10am "Performance Management Discussion" had been cancelled. However at 11.17am he received an email from Ms Curyer advising that he was required to attend a meeting rescheduled for 11.30am. He did so, and took Ms Ferguson as a support person.

[47] At the meeting Mr Patterson was asked if he had requested personal leave on two occasions by SMS text. He advised he had, but did not (and was not asked to) acknowledge these were breaches of policy.[38] He was asked if he had left the workplace without authorisation on 30 June. He agreed he had. The meeting concluded. Ms Curyer's evidence, which I accept as it was not in dispute, was that she then sought advice from the employer's external human resource consultants, and shortly after telephoned Mr Patterson to advise that Re-Engage accepted his resignation.[39]

[48] Later that day, on advice from the human resources consultancy, Ms Curyer sent the following letter to Mr Patterson:

I write in relation to your employment as a Case Manager with Re-Engage Youth Services.

Further to your email dated 10 July 2017, I confirm acceptance of your resignation.

Thank you for attending the meeting today regarding instances of your unauthorised absences from work and the impact of your absences upon your colleagues, clients and stakeholders. At the meeting, you acknowledged that you had been absent from the workplace without authority and that you had not followed correct processes and procedures in relation to this.

Following our discussion, I am not confident that you will demonstrate the professionalism and reliability required of a Case Manager during your final weeks of employment. Consequently, your final day of employment will be today, 10 July 2017 and your notice will be paid in lieu.

I thank you for providing three weeks' notice, however, as per your employment contract you were only required to provide two weeks' notice. You will be paid two weeks notice in your final pay.

[49] Mr Patterson finished work on 10 July 2017. He did not work out any period of notice which he had provided in his resignation email. He was paid two weeks in lieu of notice by the employer.

[50] Mr Patterson advanced the case that his resignation was, at law, a dismissal relying on both limbs of section 386 of the FW Act.

[51] It was argued that the resignation was a termination at the initiative of the employer within the meaning of section 386(1)(a). I do not agree. The employer did not request the resignation. The employer did not threaten Mr Patterson directly or indirectly with dismissal or other sanction if he were not to resign. There is no evidence that the employer at any stage mentioned the prospect or possibility of resignation to Mr Patterson, or inferred to him that he would somehow be better-off were he to resign. Nor was this a heat of the moment resignation made in the context of Mr Patterson stating words that he did not intend, or a resignation made in circumstances where he was operating under such a disability that he did not understand what was happening to him or being required of him by his employer. Whilst Mr Patterson was under stress and had for a number of weeks been feeling the pressure of the dilemma he faced once his leave request was refused, he was conveying a real intention to resign. While the categories of circumstance falling within the parameters of section 386(1)(a) are not closed, the facts before me (leaving aside the issue of notice, discussed later) do not fit within any of the established circumstances outlined in Bupa Aged Care Australia Pty Ltd v Tavassoli, nor otherwise fall within the concept of dismissal at the initiative of the employer.

[52] A more substantive proposition put to me by Mr Patterson was that his resignation was a forced resignation within the meaning of section 386(1)(b).

[53] A resignation is only a forced resignation under section 386(1)(b) if the employee was forced to do so "because of conduct, or a course of conduct, engaged in by his or her employer". This requires conduct or a course of conduct of the employer, and a sufficient causal connection between that conduct and the resignation. The causal connection is not a loose one. In the words of the statute, it has to be sufficient to have "forced" the resignation.

[54] The legislature has chosen to use the word "forced" as the basis for the causal connection, rather than looser or weaker formulations. The word is not defined in the FW Act. It is the past tense of the noun "force" and the verb "to force". The noun and verb are defined in recognised English dictionaries to mean (in relevant contexts):[40]

"to force (verb): to cause or produce by effort; to attain by strength of effort".

[55] The word "forced" suggests the existence of conduct of such a character which compelled the outcome in the sense that the outcome was at least the probable consequence of the conduct such that free will was denied. In the words of the full bench in O'Meara v Stanley Works Pty Ltd adopted in Bupa Aged Care Australia Pty Ltd v Tavassoli the test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer's conduct such that the employee had no effective or real choice but to resign.

[56] In support of this contention, counsel for Mr Patterson point to the following:

• The employer's decision to reject Mr Patterson's request for leave was unreasonable in the sense that the client (Mr Burt) supported it and wanted it accommodated;

• The reason for the leave and its timing was genuine and required consideration on at least compassionate grounds;

• The decision to reject the leave lacked procedural fairness;

• As it turned out, the decision to reject the leave and the consequent resignation of Mr Patterson had a negative consequence on maintaining the student to case manager ratio;[41]

• The decision to take issue with Mr Patterson about his performance was harsh. In particular, the decision to consider that he breached policy on annual leave (by not submitting a form) and personal leave (by not phoning but texting) was unreasonable; and
• Re-Engage was largely responsible for the pressure build up he was feeling when he resigned.

[57] There is a factual basis for each of these propositions and conclusions. They carry some weight. However, significant facts and conclusions weigh against these factors. These include:

• Mr Patterson requested leave only after his travel to Thailand had been booked. Even then, he didn't request leave for five months despite knowing he needed leave and that the leave he sought was in school term, and in his own words "not ideal" for the business;

• Mr Patterson knew there was an annual leave policy which stated that "no expectation should be made that leave sought will be approved".[42] He had received the policy but hadn't read it.[43] I find that he was carefree in assuming that leave would be granted based on past practice[44] despite knowing that new managers were in place since late 2016 and early 2017. His assumption was not well founded because leave in term, whilst possible, was not the norm,[45] nor was it the default position of the annual leave policy[46];

• As early as 16 June when Mr Patterson spoke to Mr Bell he was contemplating having to resign if he could not persuade the employer to grant him leave. He wrestled with the issue but believed he could not disappoint his family and not go to Thailand. He was comfortable with the knowledge of the risk of him resigning getting back to Ms Curyer and Ms Anderson through Mr Burt[47] via Mr Bell;

• No company officer led Mr Patterson to believe his leave would be granted. He was not misled other than his hope and assumption that past flexibility would apply;
• Even though the rejection led to a resignation, there were operational reasons why the leave was rejected in the first place. While Mr Burt's evidence was that he believed the Centre could accommodate Mr Patterson's absence he acknowledged that leave during term time was difficult to manage. In any event, Mr Burt was not the employer and did not specifically advocate to the employer that he be granted the leave, nor did he carry the contractual obligations to the Department which Re-Engage had. I accept the evidence of Ms Curyer that the business was better able to meet its contractual requirements if Case Managers are working whilst students are at the Centre, and that is in term;
• Mr Patterson had a number of weeks to consider his position and then made a decision to resign taking his own counsel. He also sought legal advice over this period, and referred to that in his resignation letter. Although under stress, he was an intelligent man with a legal background who knew what he was doing and the consequences of his actions.

[58] I also consider it instructive in assessing whether Mr Patterson had "no effective or real choice but to resign" to take account of his evidence of the reasons for resignation, and the way he expressed that evidence in both his witness statement and in the witness box.

[59] In his witness statement, Mr Patterson said as follows:[48]

"69. It was clear to me that Ms Curyer had me in her sights and was going to performance management (sic) me through to dismissal.

70. I was still struggling to cope with the stress of my approaching holiday without my leave being approved and felt unable to cope with the entire situation.

71. Accordingly, before attending the meeting on 10 July 2017, I emailed Re-Engage tendering my resignation on 3 weeks written notice."

[60] In his evidence-in-chief he said:[49]

A. Well I just felt I had no alternative and I was being forced to resign.

Q. When you say no alternative, did the notification of the performance review on 6 July play any part in your decision?

A. Because they would not negotiate. They would not even consider the situation concerning my leave and I didn't want to upset my whole family.

[62] Mr Patterson's evidence varied between asserting that his resignation was solely based on the leave refusal to acknowledging that the performance management meeting played some minor part. I find that Mr Patterson resigned for multiple reasons. Primarily it was the employer's refusal of his leave request. However, the employer's decision to performance manage him was also a relevant, but secondary factor. He was a capable and proud man who had a long career and who had chosen to gain new qualifications with a Certificate IV in Youth Work at an age when many others would simply retire. He took exception to the demand that he explain his conduct in a formal meeting, especially since he considered the employer's actions unreasonable and at odds with past management practice. I do not consider that it was a coincidence that he wrote his resignation four days after being advised of the performance management email and on the very morning of the performance management meeting to which he had been summoned.

[63] The fact that his resignation was motivated by dual factors, rather than a single factor does not mean that it was not a forced resignation. Section 386(1)(b) specifically contemplates a course of conduct by an employer, not just a single act. On the facts before me, the employer's conduct was both the refusal to approve the annual leave request, and the decision to require Mr Patterson to answer for certain conduct which it asserted was in breach of policy.

[64] Taking into account all of the circumstances, including those that weigh in favour of a finding of forced resignation and those that weigh against it, I am not persuaded that Mr Patterson was forced to resign by the conduct, or a course of conduct, engaged in by his employer. Although there is at times, as indicated by the full bench in ABB Engineering Construction Pty Ltd v Doumit, only a narrow line that distinguishes between conduct in the form of a resignation and a termination at the initiative of the employer, that line must be drawn; and it must be "closely drawn and rigorously observed"[50] lest a remedy be too readily invoked where termination is at the discretion of a resigning employee.

[65] I am satisfied that Mr Patterson resigned because of the employer's conduct, but I am not satisfied that he was forced to do so.

[66] I readily accept that Mr Patterson resigned under the burden of immense pressure. He felt he had to choose between his job and a family holiday that had deep personal significance. In his own words, he didn't want to "upset my whole family". It was not a choice he wanted to make. He liked his job; and there was no evidence before me that he was anything other than good at his job. The consequences of forgoing the holiday were equally confronting - a loss of irreplaceable family time as well as a financial cost given that tickets and accommodation had been booked. He wanted both - his job and his family holiday, but ultimately decided that if he could not have both then he would very reluctantly forgo his job for the holiday. His evidence was that he "knew that we couldn't cancel the trip or the flights".[51]

[67] The pressure of the moment led Mr Patterson to consider that his options were closing around him. By 10 July his booked travel was only a month away and he knew that if he were to resign he would have to give three weeks' notice. However, no matter how difficult, there were other options available to him in the week that remained. Although Re-Engage had shown no willingness to negotiate, he could have made further representations setting out the compassionate basis for his request, even suggesting a face-to-face meeting with Ms Curyer. He could have sought a written statement of support from Mr Burt to bolster his case; to that point, Mr Burt had only one discussion with Ms Anderson and short phone call to Ms Curyer in which he was trying to clarify the situation after being told no leave request form had been submitted. He had not specifically communicated his support for the approval of the leave.[52] Mr Patterson could have done that in conjunction with completing a formal leave request form, which at no stage had been completed or submitted. Had he done so, it would have triggered a contractual obligation on the part of the employer to formally respond to the request. He could have had his legal advisers or medical advisers write to the employer on his behalf. He could even have notified a dispute under the FW Act and sought the Commission's intervention, as provided for by clause 9 of the Social, Community, Home Care and Disability Services Industry Award 2010. Whether any of these options would have changed Ms Curyer's mind or assisted is not to the point; the point is that they were reasonably open yet Mr Patterson only saw his dilemma in black and white terms. To him, the situation had gone from bad to worse now that he faced the indignity of being performance managed.

[68] I also consider it particularly relevant to assessing whether the employer's conduct forced his resignation to take account of the fact that Mr Patterson was contemplating resignation for at least the month prior, and that he was comfortable using intermediaries to let that be known to Re-Engage, in an effort to place as much pressure on the employer as possible. Unfortunately for Mr Patterson that knowledge did not dissuade the employer from its decision to refuse leave.

[69] He then proceeded to take his counsel and that of his legal advisers. Under stress but away from the workplace in the week prior to his resignation, he considered his position. The pressure compounded with the performance management email of 6 July which, in his words, led him to conclude that the situation was getting completely out of hand. He resolved to bring that situation to a head by resigning. He wrote a resignation at his own initiative on the morning of 10 July, and sent it. He did not retract it, or seek to retract it, even when the performance management meeting was cancelled, or then when it was rescheduled, or at that meeting when it was held. This was the conduct of a person exercising a difficult but considered choice. He was not forced to resign.

[70] Counsel for Mr Patterson contended, in the alternative, that in deciding to shorten the notice period given by Mr Patterson from three weeks to two and pay it out, the employer terminated Mr Patterson's employment at its initiative within the meaning of section 386(1)(a) of the FW Act.

[71] There is some force in this submission. In resigning, Mr Patterson acted within his rights under clause 17 and Schedule 1 item 12 of his contract of employment. He acted within his rights to provide his employer three weeks' notice. Having regard to his age and length of service, this was the required minimum period of notice he was obliged to provide his employer. He acted within his rights to elect to work out that notice. He had his reasons for doing so, related to his desire to complete student case notes.

[72] Re-Engage contend that the employer exercised its right to require an employee to be paid in lieu of working out a notice period. It pointed to Ms Curyer's evidence that while she generally supported an employee working out their notice, in the case of Mr Patterson she came to the conclusion that she could not be confident that he would conduct himself professionally and reliably given the events of the previous fortnight, as she had understood them.[53]

[73] Counsel for Re-Engage further contended that if Re-Engage had an obligation to pay out three weeks instead of two weeks, then this was the consequence of an error and a matter for an underpayment claim, not an unfair dismissal claim.

[74] I am satisfied on the facts that the employer took unilateral action on the basis of mistaken advice that it only had an obligation to pay out two weeks leave in lieu of notice rather than three weeks. The extra week is provided for in Mr Patterson's contract on account of his age being over 45 years with at least two years of continuous service. I also note that there is no express right for the employer in Mr Patterson's contract to pay out a notice period following an act of employee resignation. The specific provision in clause 12 of schedule 1 only applies to an employer initiated termination.

[75] While the employer may have acted in breach of contract in unilaterally requiring Mr Patterson to cease employment on 10 July, and to be paid two weeks in lieu of notice, a contractual breach does not of itself constitute a dismissal. This question is ultimately to be answered by determining whether there was any relationship to terminate once the employer received Mr Patterson's resignation, and whether the employer's conduct was in substitution for the resignation or alternatively conduct consequential on the resignation. While the employer viewed itself as making a decision relating to the resignation rather than rejecting the resignation[54], this question must be determined by objectively assessing the facts and not simply relying on evidence of the employer's intent.

[76] Although each case depends on its unique facts, relevant guidance can be drawn from the approach of the full bench of the Australian Industrial Relations Commission (the predecessor to the Fair Work Commission) in ABB Engineering Construction Pty Ltd v Doumit. In that matter an employee resigned giving a month's notice he intended to work out, only to have the employer unilaterally decide to pay him a month in lieu. The bench said (references omitted):[55]

"In the circumstances, whether the termination of any connection between Mr Doumit and the company on 15 May 1996 was a termination at the initiative of the employer depends on whether there was any relationship to terminate after the company received the resignation.

The effect of giving of notice is summarised by Gray J in the Federal Court in Birrell v Australian National Airlines Commission:

"The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice."

McCarry "Termination of Employment Contracts by Notice" sums up his view of the situation as:

"A valid notice of termination, once received, will operate to end the contract of employment when the period of notice expires or is due to expire, unless in the meantime the contract is ended by some other independent cause. The employer/employee relationship will end with the contract, if it has not ended earlier, but aspects of the contract can still be enforced thereafter."

The employer took no issue with the notice and acted, or at least intended to act, in accord with the contract by giving pay in lieu of notice. It proffered the payment in lieu because it considered that the contract had been terminated. That was a reaction. It was not an initiative to terminate the employment so as to bring the termination under Part VIA Division 3 of the Act as a termination at the initiative of the employer. In the employer's perspective, its actions did not substitute a fresh termination for that which was initiated by Mr Doumit. However, the employer's action did operate to substitute an earlier termination of the employment relationship than that initiated by Mr Doumit. The employer's action operated to reduce some of the benefits that would have accrued if Mr Doumit had worked out the notice period.

We consider that having regard to all relevant circumstances and particularly the length of the notice period, and the scale of payment to Mr Doumit, the company's action to bring forward the date of effect may and should be conceived as consequential to the resignation. In our view the circumstances of the case do not establish matters of fact or degree that would justify our finding that the employer took advantage of the resignation to in effect substitute a termination of the employment of its own initiative. We do not preclude the possibility of there being such a case, particularly in circumstances where a long period of notice is given in the form of a resignation. But this is not such a case."

[77] I also note the approach of the Commission in Brunner v Amalgamated Marketing Pty Ltd T/A Radio Stations 4AK and 4WK[56] in which the Senior Deputy President concluded that unilateral action by the employer to terminate on notice inside the notice period of an employee's resignation was a dismissal.

[78] In this matter two factors weigh more strongly in support of a conclusion that the employer took advantage of the resignation to in effect substitute a termination of employment at its own initiative than the facts in ABB Engineering Construction Pty Ltd v Doumit. They are firstly, that the employer did not act in accord with the contract of employment (mistakenly giving two weeks' notice in lieu rather than three as required and arguably, unless the employer can establish an implied right, requiring notice to be paid in lieu) and secondly, the employer formed a view that it could not be sure that Mr Patterson would reliably and professionally work out the period of notice.

[79] I take account of the fact that in the matter before me the length of notice given is not long (three weeks), and shorter than that in ABB Engineering Construction Pty Ltd v Doumit. Nor is the scale of payment great.

[80] However, the employer cannot escape the fact that, after some hesitation on its own part, it chose to performance manage Mr Patterson even after he tendered his resignation.[57] Although there is no evidence that the employer had decided to terminate Mr Patterson's employment on performance or conduct grounds, it is clear from the evidence of Ms Curyer (including her letter accepting the resignation) that she considered multiple breaches of policy to have occurred.[58] The employer unilaterally decided to prevent a period of notice from being worked out and its reason for doing so was its view that Mr Patterson could no longer be trusted to act reliably and professionally whilst working out his notice period.[59] This is both the direct evidence of Ms Curyer, and the clear inference from the fact that even after receiving the resignation the employer proceeded with a performance management meeting.

[81] The employer's decision to pay out the period of notice and to (erroneously) calculate that period as two rather than three weeks was made on advice from an external consultant in the hours following the 11.30am meeting on 10 July.[60] Whilst they were decisions made only after Mr Patterson's resignation had been received, they were decisions which did more than simply pay out the notified notice period.

[82] Taking these factors into account, and especially the combined effect of the unilateral decision to pursue performance management after the employee's resignation and to shorten the notice period given by the employee and to deny the employee the right to work out the notice based on views arising from the performance management meeting, I consider that the employer brought Mr Patterson's employment to an end in a manner that was materially different to the terms on which he had resigned. In those circumstances I characterise the employer's conduct as substituting a termination of employment at its own initiative rather than simply being conduct consequential to the resignation.

[83] I am also satisfied that there was still a relationship to terminate when the employer made these unilateral decisions. An employee working out a period of notice after having given lawful notice remains working under his or her ongoing employment contract, the termination of which has been notified but not fully taken effect. Inside this period of notice, rights and obligations under the employment contract continue to apply. Mr Patterson's continuing employment contract was unilaterally terminated on different terms by Re-Engage at its initiative and for its own reasons.

[84] While the employment relationship was initially brought to an end by Mr Patterson notifying that fact at 8.20am on 10 July to take effect on 31 July 2017, the employer's unilateral decision later that day brought it to an end a week earlier, on 24 July, with the employer not requiring work to be performed between 10 July and 24 July.

[85] I have found that Mr Patterson was not forced to resign by the conduct, or a course of conduct, engaged in by Re-Engage. However, I have found that Mr Patterson was otherwise dismissed at the initiative of the employer. Thus, Mr Patterson was dismissed within the meaning of the FW Act.

[86] I now turn to consider whether Mr Patterson's dismissal was harsh unjust or unreasonable within the meaning of section 387 of the FW Act.

[87] In doing so, I deal only with the dismissal as I have found it to have occurred, that is the dismissal arising from the decision of the employer on 10 July 2017 to not allow Mr Patterson to work until 31 July but rather to bring the employment to an end on 24 July and not require Mr Patterson to attend or perform work between 10 and 24 July.

[88] In deciding to end Mr Patterson's employment earlier than the date on which he had notified, Ms Curyer considered multiple breaches of policy to have been committed by Mr Patterson: unauthorised absence from the workplace on 30 June; the notification of personal leave by SMS text rather than telephone on 19 June and 3 July; and making a request for annual leave without completing a leave request form.

[89] I do not consider that either the non-lodgement of an annual leave request form by Mr Patterson nor the notification of his sick leave absences by SMS text message to be conduct constituting a valid reason for dismissal either in its own right or in combination with other matters.

[90] Mr Patterson did not breach Re-Engage's Annual Leave Policy by making a request for annual leave without completing a leave request form. The employer's Annual Leave Policy requires an employee to submit a form "at least three weeks prior to leave being taken".[61] Mr Patterson was dismissed on 10 July, four weeks prior to the date he sought to go on leave (9 August). Self-evidently he did not breach the policy. He could have submitted a leave form as late as 19 July and remained compliant with the policy. Moreover, the evidence of Mr Patterson, of Ms Ferguson, of Ms Gryzb and of Mr Burt all support the proposition that it was common practice amongst Re-Engage staff to have an employee negotiate a leave request informally with a supervisor or other line manager and then to formally submit a form for formal approval.[62] This is what Mr Patterson did when raising the issue with Ms Anderson on 31 May. The Annual Leave Policy contemplates that very course where leave is sought during term time.[63]

[91] Mr Patterson sent text messages to his supervisor Ms Anderson on the morning of Monday 19 June and Monday 3 July advising that he was unwell and would not be attending work. He subsequently provided the employer with medical certificates dated 19 June and 3 July for absences in those weeks.[64]

[92] The employer produced no policy at the hearing to support its claim that Re-Engage employees were required to telephone and not text notification of sick leave absences. Ms Curyer's evidence was that a policy existed to this effect in the Operation Manual provided to staff at induction, and that staff had been reminded by email.[65] However, she conceded she did not know the specific policy[66] and had formed a negative view of Mr Patterson's conduct simply on the say-so of Ms Anderson.[67] In the absence of the policy being brought into evidence, Ms Curyer's overall evidence on this matter[68] is such that I cannot reliably find that the policy exists in the terms contended. In any event, I accept Mr Patterson's evidence that he had previously notified sick leave absence by text without complaint by the employer, that he believed some other employees had applied that practice and, even more relevantly, on the days in question Ms Anderson replied back to him by text acknowledging his notification.[69] She could have telephoned him in lieu of texting back, but did not do so. In these circumstances, and given the medical certification he provided, a polite reminder to Mr Patterson of required or preferred practice (if one existed) would have sufficed. I consider that a performance management meeting to discuss the subject was an overreaction. Nor could this constitute a valid reason for dismissal, either in its own right or in combination with other matters.

[93] I consider the employer's follow-up relating to Mr Patterson's unauthorised absence from the Centre on 30 June 2017 to be in a different and more serious category. He not only left the workplace for a prolonged period without permission, but did not re-present himself on his return. He was unavailable to speak or meet any students he was responsible for who may have contacted him that Friday afternoon in person or by phone. He also exposed Ms Ferguson to working alone (and on the basis of her evidence, contrary to policy[70]). I have found that Mr Patterson's absence that afternoon was contrary to his employment obligations and contrary to Re-Engage's obligations to the Department.

[94] In considering whether this absence constituted a valid reason for dismissal I have to consider the seriousness of the conduct weighed against any contextual or surrounding circumstances. It was a serious failure. It was an absence of at least 90 minutes until he was due to cease work at 3pm that day. However, the evidence also supports the view that a Friday in school holiday time is a quiet period with students unlikely to be around and less likely to require follow-up.[71] I have also accepted Mr Patterson's evidence that he was trying to clear his mind. He was clearly stressed and wrestling with his dilemma. I have also found that the employer was largely responsible for the pressure build up he was feeling when he resigned. It had not negotiated Mr Patterson's leave request in any serious manner with him nor with Mr Burt. Ms Curyer and Ms Vonic-Joyce had personally travelled to the Mt Gambier Centre in the week prior (week of 19 June) and could have readily discussed Mr Patterson's request with Mr Burt at that time. Ms Curyer chose not to, as her decision had been locked in.[72] I consider her failure to do so was unreasonable, especially knowing that Mr Patterson may resign and the Centre left with a lower case manager to student ratio as a result. Mr Burt's evidence was that he was open to discussion to try to accommodate Mr Patterson's request, hoping not to lose him.[73]

[95] This was the first and only occasion in which Mr Patterson had done so. There is no evidence before me on which I can make a reliable finding to the contrary. There is a suggestion by Ms Curyer in her evidence that Mr Patterson had an earlier unauthorised absence in May 2017.[74] I make no such finding. Her evidence on this was very vague. It was also hearsay from Ms Anderson, who was not called. Ms Curyer could not recall if this alleged earlier absence was raised by her or Ms Anderson with Mr Patterson at the performance management meeting. I determine this matter on the basis that the 30 June absence was the first and only occasion in which Mr Patterson had left work without permission.

[96] I consider that Mr Patterson's 90 minute unauthorised absence from the workplace on the afternoon of Friday 30 June was a serious failure warranting sanction but, in all the circumstances, was not a valid reason for his dismissal given that he was an employee who otherwise had an exemplary record.

[97] Accordingly I find that there was no valid reason for dismissal following the 10 July performance management meeting, either based on the issues discussed at that meeting or otherwise.

[98] I note for the sake of completeness, Mr Patterson's application contends that the employer unreasonably refused to agree to a request to take paid annual leave, contrary to section 88(2) of the FW Act.[75] I have not found that the employer's decision to dismiss was based on the annual leave request. The reasonableness of that request and the reasonableness of the employer's refusal are matters relevant to Mr Patterson's resignation. As I have found his resignation was not a forced resignation and not at the employer's initiative, I do not need to consider whether the employer breached section 88(2) of the FW Act in dealing with the request.

[99] The employer's letter of 10 July accepting Mr Patterson's resignation[76] notified Mr Patterson of its decision that his employment cease on two weeks' notice paid in lieu, and of its reasons.

[100] The employer provided Mr Patterson four days advance notice of the 10 July performance management meeting, and to two of the issues it intended to raise with him (unauthorised absences and personal leave notification). No advance warning was given concerning his alleged failure to lodge an annual leave form. On the former issues the notification was sufficient, albeit very general. Mr Patterson knew what he was required to respond to, and I have found that this was a motivator, in part, for his decision to resign.

[101] Although the meeting of 10 July was cancelled and rescheduled at very short notice this did not materially deny Mr Patterson the opportunity to respond. However, its cancellation at 9.56am and re-scheduling at 11.17am for a 11.30am start is evidence of poor and confusing human resource practice, and its re-scheduling at thirteen minutes notice compounds my conclusion in that regard.

[102] The 10 July meeting itself was extremely brief. It was nothing more than an attempt at limited fact finding. Ms Curyer accepted in cross-examination that she did not put to Mr Patterson that his conduct was in breach of policy or practice.[77] She simply sought acknowledgement that the conduct had occurred. The failure to put to the employee the basis on which she asserted breach of duty was a failure of procedural fairness. This was compounded by the language used in the employer's letter of 10 July which wrongly implied that Mr Patterson had acknowledged at that meeting that he "had not followed correct processes and procedures". There is no evidence before me that he made this acknowledgement. Including this proposition in its letter was misleading and unfair.

Opportunity for support person (section 387(d))

[103] Mr Patterson was provided an opportunity to attend the 10 July meeting with a support person. Although the extremely short notice of its re-scheduling could have made this difficult (and there is no evidence to suggest that the employer considered this aspect when announcing the re-scheduling), Mr Patterson was able to bring Ms Ferguson to the meeting.

Warnings concerning performance (section 387(e))

[104] Mr Patterson had no record of warnings or counselling for performance failures. The evidence is that he was a valued employee with an exemplary record. The Centre Manager Mr Burt, who was in effect the employer's client, gave evidence to the effect that he did not wish to lose Mr Patterson from the Centre over an annual leave dispute.[78]

[105] Re-Engage is not a large sophisticated employer. It is a not-for-profit association. I accept this imposes some practical limits on the capacity of the business to accommodate or tolerate conduct that may put at risk its contractual relationship with the Department. I also accept that having operations in regional locations adds extra difficulty in managing operations from Adelaide. However, there is no evidence that the Department would have called Re-Engage to account had it taken a different course with Mr Patterson. The evidence also is that when senior Adelaide staff travelled to Mt Gambier in June 2017 they did not use the opportunity when it presented to inform themselves more fully about the capacity of the Centre to accommodate Mr Patterson's leave request. I have taken into account the size of the employer's business in making my findings.

[106] Not being a large sophisticated employer, Re-Engage has only limited human resource capability. Operational and executive staff are required to perform a multitude of tasks, and there is no dedicated human resources manager. The employer required external professional support in this respect. In the matter before me, it sought and obtained that support including by securing advice and having its human resources consultant draft correspondence to Mr Patterson that it recommended be sent. I have taken into account these factors in making my findings.

[107] There are no other matters arising from the evidence that are relevant, beyond those already considered.

[108] There was no valid reason for dismissal. The unauthorised absence on 30 June warranted sanction short of dismissal. There was no reasonable basis on which the employer could conclude that Mr Patterson would not professionally or reliably remain an employee until the date of effect of his resignation, particularly given the employer's right (which it exercised) to require its notice to be paid out in lieu. I find that the dismissal was unreasonable and harsh. I also find that serious failures in procedural fairness occurred on 10 July. The dismissal was unfair on those grounds.

[109] Accordingly, the dismissal was harsh, unjust and unreasonable.

[110] Mr Patterson seeks compensation. He considers re-employment inappropriate.

[111] In the somewhat unusual circumstances of this matter, where the Mr Patterson had decided to bring his employment to an end from 31 July 2017, and where the employer exercised a right under clause 12 of his employment contract to terminate on notice inside his notice period and to pay its notice in lieu, the opportunity for a re-employment order for the period of 24 July 2017 to 31 July 2017 has well and truly passed. Moreover, Mr Patterson was on a fixed term contract which would have expired on 22 December 2017 had he not resigned and had the employer not dismissed him inside the period of notice he gave. Re-employment is inappropriate.

[112] I now turn to the issue of compensation.

[113] Section 392 of the FW Act provides as follows:

(1) An order for the payment of compensation to a person must be an order that the person's employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer's enterprise; and

(b) the length of the person's service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

(3) If the FWC is satisfied that misconduct of a person contributed to the employer's decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.[79]

(6) The amount is the total of the following amounts:

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period - the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations."

[114] I now consider each of the criteria in section 392 of the FW Act.

[115] There is no evidence before me to suggest that a compensation order would affect the viability of Re-Engage.

[116] Mr Patterson had worked in the Centre for four years, but only the past two years as an employee of Re-Engage. His fixed term contract was due to expire on 22 December 2017. However, at the time of his dismissal he had given notice of resignation from 31 July 2017 which was being worked out. In the context of this matter, length of past service is not a relevant factor to the compensation order.

Remuneration that would have been received: section 392(2)(c)

[117] Had he not resigned, Mr Patterson would have had a reasonable expectation of continuing in employment until 22 December 2017, and (irrespective of age) to be considered for a further continuing fixed term contract. However, I have found that he resigned. This has the effect of limiting the compensation order I consider appropriate. Had he not been dismissed, he would have worked until 31 July 2017 as per his notice of resignation. He would have earned three weeks' pay from 10 July to 31 July. He was paid two weeks in lieu of notice, being payment until 24 July 2017. He has suffered one week's loss of earnings as a consequence of the employer's dismissal. On the material before me, he earned $1,201.84 per week at the date of dismissal.[80]

[118] Mr Patterson also had use of a company motor vehicle. I accept the submissions of Mr Patterson that his had a value of approximately $30 per week.[81] I will include that sum in my compensation order. I also accept that had he been paid three weeks in lieu rather than two he would have accrued annual leave on an extra week. He was denied that. I will include a sum of $92.31on that account in my compensation order.[82]

[119] The total on these accounts is $1,324.15.

[120] The week in question between 24 July and 31 July is too short a period to reasonably have expected Mr Patterson to do more than he did to mitigate his loss. He was coming to terms with the circumstances of his departure from Re-Engage and the unsatisfactory lead-up to his resignation, and the further unsatisfactory nature of the circumstances on which the terms of his resignation were superseded by the employer's decision to dismiss. In those weeks he was taking advice on and instructing his solicitors to lodge an unfair dismissal application, which was done on 31 July.

[121] I make no reduction on account of this factor.

[122] Mr Paterson was paid two weeks in lieu of notice but did not earn remuneration in the week from 24 to 31 July 2017. I make no discount on account of this factor.

[123] The week from 24 to 31 July has passed. This factor is not relevant to a compensation order limited to this period.

[124] There are no other matters or contingencies that need to be provided for.

[125] Although Mr Patterson's unauthorised absence from the workplace on 30 June 2017 was conduct warranting sanction short of dismissal, I do not consider that discount to the compensation order, for the short period in issue, is warranted. The discount factor on this account is zero.

[126] I note that the amount of compensation allowable by the statute does not include a component for shock, humiliation or distress. Nor does it include any basis for punitive damages.

[127] The amount of compensation I will order does not exceed the six-month compensation cap.

[128] Given the amount I will order is small, I will provide 14 days for the employer to give effect to my order. In these circumstances, no order for payment by instalments will be made.

[129] I consider it appropriate to make a compensation order in lieu of reinstatement. Having regard to the loss of earnings arising from the employer's decision to dismiss and other considerations provided for in section 392 of the FW Act, I will order that, within 14 days from today's date, Re-Engage pay Mr Patterson the sum of $1,324.15 less tax at the rate his remuneration was taxed.

[130] Liberty to apply is provided to the parties should assistance be required with the implementation of the Order.

M. Griffin QC and S. Bourne, with permission, for the Applicant.

[1] [2017] FWC 5459 Deputy President Anderson, 20 October 2017

[3] MA000100; see Employer Response to Unfair Dismissal Application , 15 August 2017, paragraph 1.1

[4] Australian Hearing v Peary (2009) 185 IR 359 at [30]

[5] "It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter." Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [48]

[6] [2017] FWCFB 3941 per VP Hatcher, DP Binet and Cribb C

[8] Workplace Relations Act 1996 (Clth)

[11] Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115. See also Gunnedah Shire Council v Grout (1995) 134 ALR 145

[12] Directions, DP Anderson 15 September 2017

[13] [1959] HCA 8; (1959) 101 CLR 298

[14] Pearse v Viva Energy Refining Pty Ltd [2017] FWCFB 4701 at [14]. See also section 591 of the FW Act and King v Freshmore (Vic) Pty Ltd (unreported, AIRCFB, 17 March 2000) Print S4213 at [61] - [62]; Enterprise Flexibility Agreement Test Case (Print M0464) at page 13; Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 36 FLR 482 at 509

[15] Patterson Statement paragraphs 20 - 24; PN 411

[26] Burt Statement paragraph 11; PN 75; PN 107 - 108; Curyer evidence PN 746 - 750

[28] Patterson Statement paragraphs 48 - 49

[29] PN 51 - 52; Curyer evidence PN 913

[34] Patterson Statement paragraphs 48 - 49

[39] Curyer Statement paragraph 24; PN 1033 - 1035

[40] Australian Concise Oxford Dictionary (2nd edition)

[46] SC2 Annual Leave Policy pages 2 and 3

[48] Patterson Statement paragraphs 69 - 71

[50] ABB Engineering Construction Pty Ltd v Doumit AIRC Full Bench 9 December 1996 Print N6999 page 8

[52] PN 57, PN 61 - 62, PN 72 - 75, PN 107 - 108

[55] ABB Engineering Construction Pty Ltd v Doumit AIRC Full Bench 9 December 1996 Print N6999 page 10

[56] [2015] FWC 7837, 17 November 2015 per Senior Deputy President Richards

[57] Curyer evidence PN 966 "The meeting was going to go ahead as planned to discuss the issues previously mentioned in the email to Mr Patterson."

[58] PN 991 - 992; PN 999; PN 1036

[62] Patterson evidence PN 278; Gryzb evidence PN 599; Ferguson evidence PN 157-158; Burt evidence PN 52

[63] SC2 Annual Leave Policy page 4 'Procedures'

[65] PN 890; PN 900

[69] PN 322 - 323; PN 326 - 327

[75] Unfair Dismissal Application 31 July 2017 paragraph 3.2.17.2; see also Applicant Written Submissions 3 October 2017 paragraphs 24 - 25

[77] PN 983; PN 999 - 1002

[78] PN 62; PN 75

[79] Subsection 392(5)(b) indexed amount is $71,000 from 1 July 2017

[80] Applicant Written Submissions 3 October 2017 paragraphs 56 and 57

[81] Applicant Written Submissions 3 October 2017 paragraphs 56 and 59 ($660 over 22 weeks equals $30 per week)

[82] Calculation: Annual leave as per contract 20 days (150 hours) per year. It accrued at 2.88 hours of leave per week of service to total 150 hours per year. 2.88 hours equals $92.31 (hourly rate $32.05)

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