Fair Work Act 2009

s.394 - Application for unfair dismissal remedy

[1] Mr Gary Davidson ("the Applicant") has applied under s.394 of the Fair Work Act 2009 (Cth) ("the Act") for an unfair dismissal remedy in respect of his former employer, Qube Logistics Vic. Pty Ltd ("the Respondent"). The Applicant commenced employment with the Respondent on 6 February 2012 and worked as a truck driver. The Applicant alleges he was unfairly dismissed at a meeting ("the meeting") between the Applicant and Mr Phil Bennett ("Mr Bennett") on 26 February 2018. Conversely the Respondent alleges the Applicant resigned without being forced to do so on 26 February 2018 during the meeting.

[2] The meeting occurred in response to a complaint made by the transport operations manager. The transport operations manager made a complaint to the Respondent after allegedly taking offence to comments made by the Applicant about employees of Indian background at the Respondent's workplace. The Applicant states in his F2 application that he explained to the transport operations manager that the ratio of Indian staff at the Respondent's workplace was "distorted".[1] Further the Applicant states that he raised the issue of "potential nepotism" concerning Indian people.[2]

[3] During the meeting on 26 February 2018 Mr Bennett advised the Applicant that he was being stood down on full pay while an investigation into the transport operations manager's complaint took place. The Applicant states in his Form F2 that during this conversation between him and Mr Bennett he tendered his resignation by stating that he would "pull the pin".[3] This decision stemmed from his belief that the investigation would not be impartial and consequently he did not want to be "put through the charade of a kangaroo court."[4]

[4] I heard this matter on 20 June 2018. With the consent of both parties, the matter proceeded as a determinative conference. The Applicant was self-represented and gave sworn evidence in support of his case. Mr Dan Coulton, Qube Holding's General Manager of Industrial Relations, appeared on behalf of the Respondent and Mr Bennett gave sworn evidence in support of the Respondent's case.

[5] I explained to the parties that I would determine whether the Applicant was dismissed within the meaning of s.386 and that in the event that I found in the Applicant's favour, I would then consider the merits of his application.[5] I now turn to consider whether the Applicant was dismissed.

Statutory framework applicable to this application

[6] The Fair Work Commission ("the Commission") must be satisfied of the following matters under s.396 of the Act in order to determine an unfair dismissal matter:

'(a) whether the application was made within the period required in subsection 394(2); (21 days)

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.'

[7] None of these matters are in dispute.

[8] Further under the Act, a person is held to be unfairly dismissed if a number of mandatory prerequisites are met. These are set out at s.385 of the Act as follows:

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

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

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

[9] The issue to be determined by this decision is fundamental to whether an unfair dismissal can be established. That issue is whether or not the Applicant was actually dismissed by the Respondent. Shortly stated, the Respondent maintains that the Applicant resigned from his employment and, as there was no dismissal, the Applicant is not a person that has been dismissed as required by s.385(a).

[10] The meaning of 'dismissal' is expressly set out at s.386 of the Act as follows:

(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.'

[11] In most cases, the question of whether a person has been terminated at the initiative of the employer will be obvious; the employer's intention will be absolutely plain and uncontested. However, as is the case here, the circumstances surrounding the Applicant's termination of employment are less clear cut and may give rise to issues relating to constructive dismissal.

[12] As I understand the Applicant's case, it is suggested that he was forced to resign (s.386(1)(b)).

[13] The concept of termination at the employer's initiative has been an essential characteristic of the concept of dismissal in workplace relations legislation for many years. In Mohazab v Dick Smith Electronics Pty Ltd (No2) the Court summarised this concept in the following terms:[6]

"On the finding of fact that the respondent directed the appellant to resign or have the police "called in", it is our view that what occurred was a termination of employment at the initiative of the employer. When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee."

[14] The position adopted by the Court in Mohazab was further endorsed by a Full Bench of the Commission in O'Meara v Stanley Works Pty Ltd:[7]

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term "initiative" and the convention giving rise to the statutory provisions, the Full Court 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.'"

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

"However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from 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. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct."

[21] 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 instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous."

[22] 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."

[23] 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." (references omitted)

[15] I have applied these concepts to the Applicant's circumstances.

[16] Essentially the Applicant accepts that he verbally resigned but submits it was forced upon him. During the Applicant's meeting with Mr Bennett, the Applicant stated the following version of events in his witness statement:[8]

"5. At approximately 7am I received a call to transport hut and see Phil Bennett.

6. I came into small office and closed door behind me. As soon as I sat down I'm told a "Very Serious Breach" had been committed. I would be stood down immediately with pay pending an outcome of an investigation.

7. Slightly prior to meeting I found out that Fuel Tanker had been refilled by Carl Howlett whilst I am on sick leave. This really significant information made it clear that I'm going to be terminated.

8. It became obvious during five minute meeting that so called impartial investigation would be window dressing and a sham. I had no avenue of fair redress & faced no hope with their internal processes.

9. Not wishing to make experience longer (NO POINT) and more unpleasant than unnecessary I said "I'm pulling the pin".

10. I stood up and shook Phil's hand and quickly left the premises." (emphasis added)

[17] The Applicant gave evidence that he had no option but to declare "I'm pulling the pin" because he perceived the upcoming investigation to be "window dressing and a sham".[9] The Applicant stated in his opening submissions that with respect to any fair and impartial investigation occurring, "in reality, there was no hope, with Qube wishing to scapegoat and deflect."[10]

[18] Further the Applicant raised Mohazab in support of his case. He relied on the proposition that termination occurs at the employer's initiative where the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. The Applicant submitted that the Respondent's conduct was the principal contributing factor leading to the termination of his employment.

[19] The Applicant submitted that the reason as to why he felt forced to resign is multifaceted,[11] including the below reasons:

• the Respondent had a policy of nepotism in favour of Indian people;

• the Respondent had directed another employee to refuel the fuel tanker - a role which the Applicant had previously performed;

• a formal complaint had been made by an employee more senior to him; and

• the Respondent had one week to do an investigation prior to the Applicant arriving for his shift on 26 February 2018.[12]

[20] The Applicant also made several other submissions in his written submissions that I understand are relied on by the Applicant to support his case that he was forced to resign. These reasons are reproduced below:

"3. Qube in defending manager's human rights have trashed my human rights in process which is highly hypocritical.

4. Qube have engaged in illegal discriminatory practice & created a work place that is favourably to people of Indian origin.

5. Stood down investigation with, Accuser, Jury, Judge & Executioner all in house. Safe waters for outcome that met their requirements of silencing a whistle blower!

6. Meeting totally unexpected & unprepared for to create maximum disadvantage. Essentially ambushed to provoke a suitable response of leaving my employment."[13]

[21] The Applicant accepts that 'pulling the pin' was the phrase used by him when he communicated his resignation to Mr Bennett.

[22] During cross-examination, the Applicant conceded that he had been aware of other employees being trained to refuel the fuel tanker since August 2017.[14] Further the Applicant reaffirmed that his position following being stood down was "recoverable"[15] albeit he believed that "the chances aren't great."[16]

[23] Further during cross-examination the Applicant consistently referred to the investigation as "the crook investigating the crook" and on that basis he believed that the outcome of the investigation was a "fait accompli."[17] Despite holding this view, the Applicant conceded that he had never participated in a disciplinary investigation prior to the meeting with Mr Bennett.[18]

[24] The Respondent submitted that "the sequence of events that resulted in the Applicant's resignation cannot reasonably [be] considered constructive dismissal as the respondent had only initiated an investigative process in order to establish the veracity of a complaint made against the Applicant."[19]f

[25] Mr Bennett gave evidence on the Respondent's behalf. Part of Mr Bennett's witness statement, which is relevant to the meeting on 26 February 2018, is reproduced below:

"10. On 26 of February I requested the applicant to attend a verbal discussion at which my intent was to advise him that there had been a workplace complaint made involving his alleged conduct.

11. During this discussion I advised the Applicant they would be stood down on full pay while the investigation was undertaken.

12. During this discussion the Applicant said words to the effect 'I am resigning. I do not want to go through the process of the kangaroo court'.

14. I did explain to the Applicant that workplace investigations are not a 'Kangaroo court' confirmed that workplace investigation are fair and impartially conducted by our Human Resources Manager.

15. The Applicant responded by saying words to the effect 'my time is up here and I am resigning'.

16. As this was the second time during this discussion that the Applicant had resigned, I accepted his resignation and we shook hands before the Applicant left my office.

17. On 13 March 2018 the Applicant sent me an email which in part enquiry about his 'termination payments/entitlements'. I responded to the Applicants email and summarised the events to date; that the Applicant had resigned and no notice period was given.

18. The Applicant responded to my email stating 'I jumped before I was pushed'."[20]

[26] In support of its submission that the Applicant resigned, the Respondent tendered an e-mail into evidence sent from the Applicant to Mr Bennett on 13 March 2018 where the Applicant wrote that he "jumped before [he] was pushed."[21]

Consideration as to whether the Applicant resigned

[27] The Applicant does not dispute that he told Mr Bennett that he was "pulling the pin." Both parties gave evidence that after the Applicant stated these words they shook hands. I accept that the Applicant's words and conduct when considered objectively amount to a resignation.

[28] I found Mr Bennett to give consistent evidence and ultimately be a credible witness to the Applicant's resignation. In both Mr Bennett's witness statement and oral evidence, he stated that the Applicant on two occasions said words that amounted to a resignation. The fact that Mr Bennett and the Applicant "shook hands" gives weight to Mr Bennett's belief that the pair parted on "amicable terms."[22] Mr Bennett confirmed that his unequivocal position was that the Applicant's resignation was of his own volition.[23]

[29] I have considered each reason put forward by the Applicant in determining whether the alleged action of the employer is the principal contributing factor leading to the termination of the employment relationship. I am not persuaded that any of the reasons - alone or together - constitute conduct on the Respondent's behalf that can equate to constructive dismissal.

[30] On the evidence, the Applicant formed an unshakable conclusion as to the outcome of the Respondent's investigation into his comments before it commenced. This conclusion was formed by the Applicant despite the Applicant having never participated in an investigation before and the explanation from Mr Bennett that company policies would be followed that would ensure a fair and impartial investigation. Even by the Applicant's own admission, his position may have been recoverable had he participated in the investigation.

[31] On the evidence before me, I cannot conclude that the Applicant had a reasonable basis to form the belief that the investigation would be so flawed that he had to resign. It is important to note that in standing the Applicant down on full pay, I accept the Respondent's submission that it acted in accordance with clause 9.6 of the workplace agreement that applied to the Applicant. This should have further removed doubt from the Applicant's mind that company policies would not be followed and he had no other option but to resign. Consequently I do not accept that the circumstances surrounding the impending investigation meant that the Applicant was forced to resign.

[32] On the basis that the Applicant was not dismissed as required by s.385(a) of the Act, I dismiss this application. An order to that effect will accompany my decision.

[6] (1995) 62 IR 200 at 206.

[7] PR 973462 AIRC 2006(11 August 2006).

[13] Outline of Argument - Applicant, [3]-[6].

[19] Outline of Submission for the Respondent, 2.

Printed by authority of the Commonwealth Government Printer