Further to our conversation earlier today, this email is to confirm that you are required to work from the Parramatta office on a full-time basis, effective from next week. Your employment contract states that 'Greenlight is reasonably flexible regarding hours of work however a standard working day would be 8.30am to 5.00pm. Standard working days are Monday to Friday.' Therefore it would be expected that you are to attend the office from 8.30am to 5.00pm Monday to Friday. Working from home is a privilege offered to start as long as it meet business requirements however is reviewed for all staff on a regular basis in order to meet changing business needs. There is some flexibility around this is a pointless close to your home address conducted at the beginning or end of the day.

As discussed, please arrange for Janelle and Jess to have access to your electronic diary. Myrtec can assist with this if required [telephone number removed].

The business provides a vehicle for use during the working day for client related appointments, it is expected that as you will be based from the office you will make use of this vehicle in place of the Go-Get cars you are currently accessing. Please contact Janelle for access to the car calendar so that you can book this is required.

[4] Rather than complying with this direction, the respondent put that the applicant voluntarily tendered his resignation (see above) with four weeks notice in accordance with his contract of employment (cl 14.2).

[5] The applicant declined to participate in a Conciliator assisted conciliation of his claim and the jurisdictional objection was referred to me for hearing and determination. Nevertheless, and against the applicant's request through his Agent, Mr M Alkan to cancel a conciliation conference before me, I listed a conciliation conference by phone on 23 April 2018. As the conference proved unsuccessful, I reaffimed the directions for a hearing of the jurisdictional objection on 6 June 2018. At the hearing, the applicant appeared for himself and Mr Gary Stretton, Company Director appeared for the respondent.

[6] Three persons provided witness statements. They were:

• the applicant;

• Mr Stretton; and

• Ms Alexandra Locke.

Only the applicant and Ms Locke were required for cross examination.

[7] Mr Brewer commenced by describing an incident on 7 March 2018, in which he attended a scheduled home appointment and the patient did not answer the door. Following this the respondent's insurance company contacted him and the representative accused him of not doing enough to reach the patient. She was rude, aggressive and swore at him. He informed Ms Locke of the incident. The next day, he attended the appointment and the patient apologised as she had fallen asleep and did not hear the door bell.

[8] The applicant said that on 9 March 2018, Ms Locke phoned him to advise that as a result of this incident he would no longer be permitted to work from home, as had been agreed when he commenced employment. He would also no longer be allowed to use GoGet cars for appointments and would be required to use the office pool car based at Parramatta.

[9] The applicant told Ms Locke that this would result in additional travel time of about 1 hour and 10 minutes including walking to and from Arncliffe Station and from Parramatta to the office. The additional cost for him would be around $2,000 per annum. He informed Ms Locke that the workplace changes left him no choice but to resign. He claimed Ms Locke told him she would call him back later that day. She never did. He resigned immediately after Ms Locke sent the email set out at para [3] above.

[10] The applicant's evidence was that the majority of his clients were in the St George area, the Shire and South West Sydney, much closer to his home than Parramatta. He had rarely attended the Parramatta office, as he was responsible for scheduling his own appointments. The car pool car was regularly booked and this would interfere with his ability to efficiently perform his role. He claimed the extra travelling time would prevent him reaching his targets and these changes were intentionally designed to force his resignation.

[11] The applicant said that on 15 March 2018 when he queried why he was being punished for being harassed by a client; see para [7] above, Ms Locke simply said the majority of the Company's income came from this client and the Company had to keep the client happy, given their contract was up for review in June 2018.

[12] The applicant believed he had no major performance issues working with the respondent; Ms Locke had considered him competent and often asked for his advice, as did his colleagues. He had recently passed his probation period in which he was informed 'the good outweighs the bad'. The only feedback was that he needed to get back to his clients quicker. The applicant claimed he was not warned of the sudden change in work arrangements. He wrote his resignation on the spot, choosing to keep it brief, as he never believed it would be now used against him. The respondent accepted his resignation, without question and by refusing to discuss the matter, they demonstrated an intent not to have him remain in employment.

[13] In cross examination¸ the applicant said he arrived at his approximate financial loss of $2,000 per annum by identifying the return rail fare from Arncliffe to Parramatta for five days a week, 52 weeks a year. He had estimated the time it would take each day by reference to Tripview. He said that regardless of where his appointments were, the respondent had required him to go to Parramatta to collect the pool car. He claimed Ms Locke told him this over the phone. This was contrary to Ms Locke's email; see: para [3] above which had said there would be flexibility with the use of the pool car and where he might need to be the next day.

[14] The applicant believed that it was made 'very, very clear' to him by Ms Locke that he was no longer welcome at Greenlight and the workplace changes suggested were made to force his resignation, or ultimate dismissal, if he did not meet his billable hours. It was a 'trap'. Mr Stretton noted that the applicant had never once met his billable hours and if the Company had wanted to use this against him, his probationary review three weeks earlier, would have been the opportunity to do so.

[15] The applicant claimed that following his resignation there was no communication from Mr Stretton and when he did speak to Ms Locke, she had just said she would need to speak to Mr Stretton. It was very clear that Mr Stretton did not want to speak to him. Despite going on sick leave immediately after Ms Locke's email of 9 March 2018, he believed Ms Locke would call him and he was always available. He conceded that he never sought to rescind his resignation. He was not malicious or vindictive and saw the 'writing on the wall' and just left. Ms Locke had also told him that she would be monitoring all his contracts, phone calls and emails. He believed it was all an 'extreme over reaction' to the abuse he had received from a client, who was very important to the respondent. The applicant conceded that his contract of employment did not set out that he would be working from home. However, he had been told so verbally and in any event, it made sense.

[16] In his written statement, Mr Stretton explained that on 9 March 2018 the applicant was required to base himself from the office as a result of his refusal to follow instructions, his inappropriate communication style and poor time management/organisational skills. This direction was given both verbally and in writing. The decision was made so that he could be appropriately supported, coached and monitored. It was not intended to make it difficult to complete his duties. Mr Stretton observed that within 10 minutes of the written direction, the applicant submitted his written resignation. Mr Stretton stressed that the applicant was not dismissed, nor was there any plan to dismiss him. Had this been the intention it could have easily been carried out three weeks earlier, before he had reached the end of his six month probation period and before he had completed the minimum employment period (6 months) to be eligible to file an unfair dismissal claim.

[17] Mr Stretton said that the applicant was not employed in a home based position and nor did his employment contract provide for it. The nature of the work required him to attend workplaces, client residences and medical practices across the metropolitan area, based on customer needs. Work location is unpredictable and changes constantly. Nevertheless, Mr Stretton accepted that occasional work from home was acceptable. However, staff are required to spend some time in the office and this was made clear to the applicant at the commencement of his employment and subsequently.

[18] Mr Stretton said that the applicant had requested to use Go Get vehicles in preference to using his own vehicle or the Company pool vehicle. This was agreed to by Management on a trial basis to assess its costs effectiveness. It was not a condition of the applicant's employment and no other employee had been offered such an arrangement. Mr Stretton accepted the cost of the Go Get arrangement was comparable, but the applicant did not manage his time effectively, as he frequently had to leave work early to return the Go Get vehicle. Mr Stretton believed the trial was not a success. It was why the 9 March 2018 email, advised him to use the pool vehicle, including being able to keep it overnight, if he was required to work the next day close to home.

[19] Mr Stretton rejected the applicant's contention that his required attendance at the office precluded him from continuing employment. It was a 47 minute train trip from Arncliffe to Parramatta and most of his work was in the Western and South Western parts of Sydney, closer to Parramatta than Arncliffe.

[20] Mr Stretton added that the applicant was employed by the Company at considerable cost, with recruitment fees and immigration applications. Despite his short service and performance issues, Management had been willing to work with him to overcome these issues.

[21] In a reply statement, Mr Stretton said that even though the applicant had frequently attended appointments close to the office, he refused to attend the office to build relationships with colleagues, despite Ms Locke requesting he do so.

[22] Mr Stretton said that the shared pool vehicle was rarely used, as other employees used their own vehicles. This meant the applicant would have had almost exclusive use of the pool car, including taking it home, when required. The use of the pool vehicle would not adversely impact on his billing targets and in any event, he rarely met the targets, without any consequence.

[23] Mr Stretton said that the applicant's probationary performance review meeting on 12 February 2018 had discussed his performance, but the applicant did not subsequently address those issues, as there were further complaints. Mr Stretton claimed there was nothing for the Company to respond to after receiving the applicant's resignation. He had simply said his reason was to 'pursue different paths'. In any event, the applicant then took sick leave on three consecutive days, removing any opportunity to address his concerns, had there been any.

[24] Ms Locke received a phone call from an insurer on 7 March 2018, complaining about the applicant's argumentative and defensive attitude when he had been spoken to about a missed client appointment. This was not the first complaint from clients and insurers about the applicant's inappropriate conduct. Ms Locke phoned the applicant on 9 March 2018 to discuss the complaint and they spoke about strategies to avoid future similar situations. Ms Locke said that these communication issues had been raised with him during his performance review. She advised him of the arrangements for him to work from the office, but if he had an appointment close to home, he would not be required to come to the office first. She had not said all his correspondence would be monitored, rather she offered him additional support. The applicant had stated he did not wish to work from the office, as it was not 'logistical', particularly as he often had appointments closer to his home than the Parramatta office. Ms Locke reiterated that flexibility would be available in those circumstances.

[25] Ms Locke claimed the applicant did not provide any reason to explain his inability to work from the Parramatta office. He did say, he thought the directive was 'a bit extreme'. Ms Locke said she had responded by pointing out that she had told him on several occasions he should attend the office more regularly, but he had failed to do so. The applicant asked for a reconsideration of the direction, but Ms Locke said the decision had been made in consultation with Mr Stretton. The applicant did not request a further meeting. She did not indicate that she would call back, only that she would get back to him, which she did in her email at 4:51pm. He emailed his resignation at 5pm.

[26] In a reply statement, Ms Locke said that during their phone call, the applicant did not mention specific time differences or additional travel costs associated with working from the Parramatta office. He did say he was displeased with the decision to monitor his performance and he did not wish to base himself at the office. However, he gave no reason why he had no choice but to resign. Had he raised any plausible reason why he was unable to continue his employment, she would have discussed this with Mr Stretton. He did not do so.

[27] Ms Locke claimed that the applicant could not have known about the usage of the pool car, because he did not use it and had not enquired about it. As he had no access to his own vehicle, he would have had priority to use the pool vehicle.

[28] Ms Locke acknowledged that the client who complained about the applicant on 7 March 2018, is a large source of revenue for the Company and its satisfaction was very important. Even so, the client was not made aware of the discussions with the applicant and the Company had no contract with this client and no impending review.

[29] In cross examination, Ms Locke said she believed the applicant had made a 'rather hasty decision' (to resign). She did not question it at the time as it was sent at 5pm and she had to leave work, due to childcare arrangements. In any event, Ms Locke did not believe there was anything to question, given the terms of his resignation letter. His comment of 'moving on' was unrelated to the directive to work from the office. Ms Locke noted that the applicant could have reconsidered his hasty decision over the weekend and contact her the next week. He did not seek to explain that his resignation was made in haste and wanted to retract it. In re-examination, Ms Locke said that it was her view that the applicant resigned because he was unhappy with the instruction that he base himself from the office.

[30] Mr Stretton submitted that s 386 of the Act was not enlivened in this case, as there was no evidence that the applicant was terminated at the employer's initiative or that he was forced to resign due to the employer's conduct. He resigned voluntarily on 9 March 2018. The applicant bears the onus to demonstrate that s 386 applies in this case.

[31] Mr Stretton said that the applicant's employment contract makes no reference to him working from home, or using Go Get vehicles. The applicant's role required him to travel all over Sydney and at various points in time. In any event, he had almost complete access to a Company provided vehicle. Moreover, he had flexibility with its use, if his appointments were closer to home than the Parramatta office. In addition, he had other options including sourcing his own vehicle and claiming the travel allowance or using public transport.

[32] Mr Stretton said that the applicant was required to attend the office due to performance concerns that had been raised earlier in his probationary review. Mr Stretton stressed that the Company could have dismissed him three weeks earlier, prior to the expiry of his probation period. The Company decided not to do so, rather, choosing to give him support and feedback in order to give him an opportunity to improve. This was made clear to him, verbally and in writing. Mr Stretton noted that the applicant made no attempt to clarify the use of the pool car. Instead he took the next three days personal leave. The fourth day was the monthly staff meeting in the office. However, as he had not completed two significantly overdue reports, Ms Locke allowed him to work from home that day. Mr Stretton then took the decision to pay him the balance of his notice period.

[33] Mr Stretton submitted that the applicant resigned because he did not like what he was instructed to do, not that he was unable to do so. There was no evidence he could not comply with the respondent's direction.

[34] The applicant said he was forced to resign because Ms Locke did not get back to him, as she had promised. When he was told he was not to be paid in lieu of notice, if he left during the notice period, he filed a workers' compensation claim. Two hours later, he was 'magically' paid his notice.

[35] The applicant queried how his performance could have deteriorated in the three weeks since his good performance review. He believed it was because 'a powerful and resourceful' client was not happy, so he was 'made the scapegoat'. The applicant relied on the evidence that when he expressed displeasure with his changed employment conditions, a conversation with Ms Locke took place and he felt he was forced to resign. The respondent made no attempt to persuade him not to resign, even though Ms Locke knew the changes left him with no option but to do so. The applicant claimed all this conduct of the employer was such that it forced him to resign. He said that conduct includes 'any omission'.

[36] In reply, Mr Stretton challenged the applicant's submissions about his notice and the workers' compensation claim. The respondent had the right to either payout the applicant's notice, or require him to work it out. The respondent wanted him to work it out, but when his behaviour deteriorated, Mr Stretton believed it was best for all concerned if he was paid out. Mr Stretton stated that he found out about the workers' compensation claim after this decision, not before, (the claim was not pursued).

[37] This decision arises in the context of the respondent's objection to the applicant's unfair dismissal application on the grounds that he was not dismissed at the initiative of the employer and had resigned of his own accord. The applicant claimed he was forced to resign as a 'knee jerk reaction' to the unreasonable changes the employer had insisted upon when he was directed to work from the Parramatta office.

[38] In determining the respondent's objection, the Commission must relevantly consider whether the applicant was dismissed according to the definition of dismissal, set out at s 386(1) of the Act. That section reads:

(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.

[39] It is trite to observe that if the applicant was not dismissed at the employer's initiative or had not been forced to resign by the conduct of the employer on 9 March 2018, the Commission has no jurisdiction to determine his unfair dismissal application.

[40] According to the Macquarie dictionary 'initiative' is defined as:

The oft quoted authority as to the meaning of 'termination at the initiative employer' is that found in Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; 62 IR 200 where the Full Court of the Industrial Relations Court of Australia said:

'These definitions reflect the ordinary meaning of the word 'initiative'. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression 'termination at the initiative of the employer' as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression 'termination of employment': Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

'I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that "initiate" means "to begin, commence, enter upon; to introduce, set going, or initiate": see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression "termination" in the Act, read in conjunction with Art 3 of the Convention which speaks of "termination ... at the initiative of the employer", a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.'

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because 'he felt he had no other option'. His Honour described those circumstances as:

'... a termination of employment at the instance [of] the employer rather than of the employee.'

'I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.'"

[41] In P O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 ('O'Meara'), a Full Bench of the AIRC said:

'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.'

Thus, it can be seen that the conclusion of the Full Bench of the AIRC is:

• there must be action by the employer that either intends to bring the relationship to an end or has that probable result; and

• that 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 employee had no effective or real choice but to resign.

[42] A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd Print Q0008 said:

'We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of 'some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect . .'

[43] A Full Bench of the AIRC in ABB Engineering Construction Pty Limited v Doumit 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 Minato v Palmer Corporation Ltd where Murphy JR referred to a number of cases dealing with the situation where "special circumstances" arise. He referred in particular to a UK decision where Wood J stated:

'If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant ...These we refer to 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 employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objective.'"

[45] In Pawel v Australian Industrial Relations Commission [1999] FCA 1660, Dowsett J said:

'When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, finds aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Division 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer.'

[46] The logical starting point in a matter of this kind, is the terms of the applicant's resignation email sent to Ms Locke nine minutes after she had emailed him to confirm his new work arrangements; see para [2] above. Given the applicant had been informed by Ms Locke of these arrangements some hours earlier and the speed with which he responded by resignation, I find it utterly extraordinary that he made no reference, or even a hint, that he had been forced to resign. On the contrary, the short email thanks the employer for the opportunity to work for Greenlight and he said that he now feels it is time to 'move on to different paths'. The applicant now claims that this was a 'knee-jerk reaction' and Ms Locke or Mr Stretton should have contacted him to talk him out of resigning, or at least discuss the new arrangements. Let me deal with this email.

[47] Firstly, the grateful, even friendly tone of the applicant's email, was not a response given in 'the heat of the moment' or a 'knee-jerk reaction'. The applicant had been informed some hours earlier of the changed work arrangements, and indeed at the time, he argued strongly against them with Ms Locke. He had time to consider his position carefully and thoughtfully. The terms of his email expressly reflects that sober ponderence. There is not a whiff of anger, annoyance or regret for the position he now found himself in.

[48] Secondly, given that there was no express, or implied claim of being forced to resign, it is disingenuous of the applicant to criticise the respondent for not wanting to talk him out of resigning, or offering a discussion. He did not suggest they have a meeting to discuss any matter. Ms Locke was entitled to believe that the applicant, on reflection, had agreed to the change in working arrangements at least for another four weeks (of the notice he had given). She was soon to be disavowed of this belief. In my view, had the applicant genuinely believed his resignation was a 'knee-jerk reaction', he should have further considered his position over the weekend and either call or email Ms Locke to say he now regretted his resignation and ask to rescind it. The onus rested on him to indicate he was prepared to work according to the direction and his resignation was now very much regretted. Whether the respondent would have agreed to do so is not really the point. He should have offered the option of withdrawing his resignation. It was not the employer's responsibility to beg for his return.

[49] That said, in my opinion, the applicant never intended to work out his notice. He took three days sick leave commencing the next business day (Monday) and had lodged a workers' compensation claim, which was ultimately not pursued. While the respondent exercised its right to pay the applicant the balance of his notice period, I do not accept the applicant's submission that Mr Stretton only did so because of the workers' compensation claim. This makes no sense. The legal position was always that the applicant could work out the notice period or be paid in lieu. Workers' compensation is completely irrelevant to the statutory requirements in respect to notice of termination or payment in lieu of notice. The filing of a workers' compensation claim and any entitlements under that beneficial legislation, are not affected - let alone extinguished - by a termination of employment for any reason. In any event, while I accept that Mr Stretton may have been concerned with the applicant's absence three days immediately after being directed to work from the Parramatta office, his decision to pay out the notice was made before he was aware of any workers' compensation claim.

[50] In my opinion, there is a sound basis to conclude that the direction the applicant work from the Parramatta office was reasonable management action taken in response to the employer's concerns with his performance and communication skills. While the applicant sought to focus on the 'trigger' for the decision, being a complaint from a major client, he did not seriously challenge the respondent evidence that three weeks earlier, in his probationary review, similar concerns were raised. In other words, the 'trigger' seems consistent with what had already been raised with him as the respondent's concerns with his performance/communication skills.

[51] That said, I do not accept the applicant's evidence that the direction to base himself in the office was 'logistically' impractical and would cost him excessive travel time and additional costs and adversely affect his targets. The applicant did not dispute the fact that he had never once met his targets in his seven-month employment, without any consequence. The applicant was offered almost exclusive use of the pool car and if his next days' appointments were close to home, he could take the pool car home the night before. The applicant's additional travel costs were inflated by him relying on train travel costs each way, to and from Arncliffe and Parramatta every weekday, 52 weeks a year. Firstly, he would not be working 52 weeks a year and secondly, it ignores the usage of the pool car; thirdly, the travel time and extra cost associated with the distance between Arncliffe and Parramatta could hardly be said to be an unreasonable Sydney commute to work by contemporary standards; see: Spotless Services Australia Limited t/a Alliance Catering [2016] FWC 4505 at para [75]- [76] and fourthly, the applicant could have purchased his own motor vehicle and be entitled to the motor vehicle expenses that all the other employees were otherwise entitled to.

[52] What I find somewhat curious is that the applicant complained about the new arrangement, but was not prepared to 'give it a go'. In my view, he did not want to give up his unsupervised and very flexible work arrangements, which included his preferred use of Go Get vehicles in order to ensure he did not have to travel very far from home. He was not prepared to accept any changes which would impact on this rather uncontrolled, unsupervised and some might say, privileged arrangement compared to other of the employees' arrangements.

[53] It should also not be lost sight of that the applicant's contract of employment did not specify his role was from home or that he was entitled to use the Go Get hire vehicles in order to perform his duties. They were not contractual terms; rather, he had initiated both of them and the Company had agreed. This does not mean that they could never be changed or removed in order for the employer to ensure the efficient and effective management of its people and resources.

[54] In my judgment, for all the reasons herein set out, the employer did not engage in conduct, or a course of conduct, which was intended to force the applicant's resignation. There is much to be said to justify this conclusion by the fact that had the respondent really wanted to get rid of the applicant, it had the opportunity three weeks earlier, given the shortcomings which had been identified at the time, before the expiry of his six-month probation period and before any rights to unfair dismissal proceedings were enlivened. I accept Mr Stretton's evidence that the Company was prepared to pass his probation/performance review and allow him to continue his employment, despite some reservations. I similarly accept that the direction for him to be office based for a period, was made in good faith, in order to provide him with additional support, monitoring and mentoring. It was not, as he described it 'an extreme overreaction'.

[55] The Commission is satisfied the respondent's objection to the applicant's unfair dismissal application has been made out. The applicant was not forced to resign, nor did the employer engage in conduct, or a course of conduct intended to achieve that purpose. The applicant resigned of his own accord. Accordingly, the applicant was not dismissed and s 385 of the Act is not enlivened. It follows that the applicant's unfair dismissal application must be dismissed. I order accordingly.

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