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[2021] FWC 2849
General information, not legal advice.
Fair Work Commission
2021-05-18
Original judgment source is linked above.
The attached document replaces the document previously issued with the above code on 18 May 2021.
The decision has been amended to correct an administrative error in the references.
s.365 - Application to deal with contraventions involving dismissal
Application to deal with a general protections dispute involving dismissal - jurisdictional objection - whether Applicant resigned - Applicant resigned - application dismissed.
[1] Mr Thomas Kann (the Applicant) brought an application under s.365 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a general protections dispute involving dismissal. The Applicant was employed by St Vincent De Paul Society Queensland (the Respondent). In his Form F8, the Applicant indicated that he was notified of his dismissal on 20 July 2020 and the employment relationship came to an end on 14 August 2020.
[2] In its Form F8A - Employer response, the Respondent disputed that any adverse action had been taken against the Applicant and raised an objection on the grounds that the Applicant resigned from his employment and was not dismissed. To that end, the Respondent annexed correspondence from the Applicant to the Respondent on 20 July 2020 which stated:
We have had a potential client contact our office this morning who is very unhappy regarding the SAA Grant.
The client had registered his details with the Department of Housing and Public Works and was potentially eligible for the HAS Program. ... He wanted to get my name in which I advised it was Tom and he wanted my surname which I did not provide. He advised that he was going to the local member to complain and that "I will be on the news".
I have found this to be very distressing and unacceptable, I should not feel this threatened in my work place. Unfortunately our office has been receiving these types of calls from very agitated and at times abusive people, and we are just operating the HAS Program in accordance with the HAS Program requirements. This combined with very little to no support form the St. Vincent de Paul Society QLD to help us with staffing shortages has compounded the levels of stress and anxiety that I have been experiencing and I feel that the only resolution for myself is to resign from the position of Program Coordinator for my own health and wellbeing.
[3] The Respondent further annexed correspondence from the Applicant to the Respondent on 21 July 2020, in which he acknowledged he was required to give four weeks' notice and stated, "Therefore my last day of employment will be on Friday 14th August 2020".
[4] The matter was conciliated by a Staff Conciliator on 29 October 2020, but was unable to be resolved.
[5] The matter was then allocated to me. Directions were issued regarding the filing of material and the matter was listed for hearing on 8 February 2021.
[6] Both parties sought permission to be represented at the hearing. Granting permission to be represented under s 596 requires the satisfaction of two elements.[1] The first pre-requisite, the presence of one of the criteria under s 596(2), does not immediately invoke the right to representation and establishing satisfaction "involves an evaluative judgment akin to the exercise of discretion."[2] Once that first step is satisfied, the second step "involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission."[3] In this matter, I was satisfied of the above and permission was granted to both parties on the basis that I was satisfied that it would allow the matter to be dealt with more efficiently having regard to its complexity.
[7] The relevant question is whether the Applicant was dismissed within the meaning of the Act, in circumstances that constituted constructive dismissal. This decision deals with that matter. The Applicant also raised in his submissions, arguments which go to the merits of the dismissal. These were not considered for the purpose of this decision, given its jurisdictional scope.
[8] The Applicant commenced employment with the Respondent on 10 September 2018 in the position of Program Coordinator Home Assist Secure (HAS) for the Redlands region for a fixed term that was intended to conclude on 30 June 2023.
[9] In June 2020 there was a spike in the Applicant's workload due to the implementation of the State Government's Senior Assist Program coming online, in response to which, the Applicant raised concerns about workload and staffing levels to the Respondent.
[10] On 22 June 2020 at 9:53am, the Applicant contacted Ms Jackie Youngblutt, General Manager of Programs regarding staffing levels, increased telephone enquiries and overtime hours worked by the Applicant and the HAS program Redlands administrator.
[11] Ms Youngblutt responded to the email on 22 June 2020 at 11:51am asking the Applicant to allow the Line Manager, Leah Ukles, access to the HAS Redlands database so that a review of the phone reports could be undertaken. Details of the overtime worked was also requested.
[12] The Applicant did not provide access or the details requested. Consequently, the assessment did not proceed into what further resourcing might be required at the Redlands office.
[13] The Applicant sent a further email on 22 June 2020 at 12:31pm to Ms Youngblutt, further detailing the high frequency of calls being experienced by the Redlands office. The Applicant provided details of the overtime worked by him and the Redlands administrator, Rebecca Devlin. The Respondent claims that there is no record of the Applicant working additional hours or overtime hours in the Respondent's payroll system.
[14] On 22 June 2020 at 12:58pm, Ms Youngblutt, responded to the Applicant's email on 22 June 2020 at 12:58pm stating that the government phoneline should assist in reducing the high telephone frequency, the Applicant should prepare a waitlist for first interviews with clients and that she was not supportive of the Applicant working overtime.
[15] The Applicant sent a further email on 22 June 2020 at 2:48pm requesting another administrative staff member to work 15.4 hours per week. The Respondent submits that this was the only complaint raised by the Applicant prior to his resignation via email on 20 July 2020.
[16] The resignation email on 20 July 2020 detailed the Applicant's decision to resign as being based on encountering abusive people enquiring about the HAS program, staffing shortages at the Redlands office, having little to no support from the Respondent and the impact the position has had on his mental wellbeing. The Applicant stated that he should not feel threatened (by clients) in his workplace.
[17] Ms Sangeetha Unbalagan, the Manager for Health and Wellbeing of the Respondent accepted the Applicant's resignation on 20 July 2020 at 3:30pm.
[18] On 21 July 2020 the Applicant confirmed that his last day of work at the Respondent's business would be 14 August 2020 pursuant to the notice requirements stipulated in clause 3.9.1 of the St Vincent De Paul Society Queensland Employee Agreement 2020 that governed his employment.
[19] On 31 July 2020, the Applicant contacted Ms Unbalagan by telephone to discuss another matter regarding the Redland Office and to also discuss his termination of employment. The Applicant submits that he said that he was sympathetic to Ms Unbalagan's position as she was new to the St Vincent's at the time and that he felt that the decision for his termination was made by Ms Unbalagan's direct managers. The Applicant submits that Ms Unbalagan said that she did not want to accept the resignation and said words to the effect of, "it is not the way she would have handled the situation, but was given directions to respond in the way that she did". The Applicant believed Ms Unbalagan was referring to Jackie Youngblutt when she referred to "she" in the conversation.
[20] The Applicant submits that he made a litany of complaints and enquiries about the level of staffing and resourcing as defined as workplace rights pursuant to s.341(1)(c)(ii) of the Act, over a period of 18 months that led to a slow-burn of despondency from the Applicant. The Applicant submits that there was active ignorance of his ongoing concern by the Respondent and that this put him in a position where he "felt destined to fail ... because [he] wasn't given the adequate resourcing".[4]
[21] The Applicant submits that from June 2020 there was a spike in activity in his role emanating from the State Government Senior Assist Program coming online with no notice to the Applicant. The Applicant submits that in response to this, his office was inundated by telephone calls of mainly quite irate clients.
[22] The Applicant stated that his email of 20 July 2020 was a "cry for help and assistance given that [his] multiple complaints and inquiries about staff, under resourcing and work health and safety issues had been ignored for many months".[5] He said that he provided clear, compelling and cogent evidence that he had no "real intention to resign" as only a week prior, 13 July 2021, he had re-signed his Position Description in the hope that things would get better; and that on 17 July 2020 he intended to stay until 2023 because he "liked the job...was a good job". He gave evidence that he was "feeling pretty stressed out" and "badly shaken up" by the events of 20 July 2020 which, "combined with the little support [he] was receiving from the state office...continually rejected...application for assistance and staffing shortages... compounded already the stresses and anxiety...and...[he] felt the only real resolution would be....to leave the job...".[6]
[23] The Applicant gave evidence that he "lived in constant hope that [the Respondent] would fairly and reasonably respond to [his] multiple complaints, but they continuously failed to do so". The Applicant stated he felt the Respondent was trying to get rid of him, by intentionally failing to provide him appropriate assistance and in "overworking him" to the point where he felt forced to resign.
[24] Further to his correspondence of 20 July 2020, the Applicant stated that Ms Unbalagan replied by email at 3.30pm stating:
Thank you for your email. Per our previous conversations, we do understand the frustrations in fronting the roll out of the SAA Grant and managing challenging client situations. While we appreciate your dedication and service to the HAS program, in consideration of your health and wellbeing, we will accept your decision to resign from this position. Our HR team will take your feedback on and process your resignation request. Please advise on your handover arrangements and timeframe."
[25] The Applicant submits that rather than providing such support and offering the Applicant a genuine and meaningful opportunity to withdraw his "heat of the moment" resignation, the Respondent instead acknowledged the Applicant's frustration due to resourcing and staff shortages by the Respondent and adverse impacts that the Respondent's conduct was having on his health and wellbeing.
[26] The Applicant said that he was shocked and angered that no one had called him or arranged a face-to-face meeting to discuss the issues he had raised and to seek a mutual resolution. The Applicant submitted that he did not immediately respond to this correspondence and waited until the following morning at which time he sent the correspondence outlining his notice period and that his final day of employment would be 14 August 2020. The Applicant said that he received a "final email" from Ms Unbalagan providing that the Respondent "accepted and respected" his decision, and that Payroll would process his resignation notice accordingly.
[27] The Applicant relies on Sathananthan v BT Financial Group and Western Excavating (ECC) Limited v Sharp[7] in asserting that giving notice does not preclude a claim for constructive dismissal up until the point of the final day of employment, namely, 14 August 2020. The Applicant submits that because he did not remain a further day past that date he did not effectively reaffirm the employment contract.
[28] The Applicant submits that he felt he had no choice but to resign, and that he was forced to do so because of the "ongoing repudiatory conduct by the Respondent" in failing to offer him proper support and resources to fulfil the requirements of his position, despite his various complaints. The Applicant submits that the Respondent, and its employees, officer and agents:
"demonstrated an unwillingness to comply with its contractual obligations to provide a healthy, safe and functional workplace to the Applicant;
had engaged in a course of conduct which was ongoing repudiatory conduct of which the probable result was that the Applicant would feel forced to resign by accepting the Respondent Employer's repudiatory conduct".
[29] The Applicant submits that the Respondent purported to "accept" his forced resignation, which he said further confirmed the Respondent's decision to repudiate the contract by ultimately, "doubling down and neither adequately nor reasonably responding to the Applicants multiple and ongoing complaints about staffing and resourcing issues." He submits that the Respondent failed to renege from the repudiatory course of conduct by either encouraging him not to resign, or otherwise properly addressing his ongoing concerns and complaints.
[30] The Applicant says he felt that the termination of his employment was at the initiative of the Respondent and that it had been their intention for some time, which was evidenced by their lack of support for the Redland HAS Program. The Applicant felt as though he was continually disadvantaged by upper level management who did not treat him equally to the other Program Coordinators and that he was continually being set up for failure. The Applicant believes that the continual micromanagement from upper level management left him feeling disheartened, hurt, humiliated and, like a failure, especially due to the inadequate staffing resources, and overwork, that he was never going to be able to coordinate a successful Program.
[31] The Applicant submits also that there were several witnesses that could have assisted the Commission in determining the matter that have not been called to provide any evidence to the Commission. The Applicant submits the Commission should draw Jones v Dunkel adverse inferences in this regard.
[32] The Applicant also seeks an order for costs of the jurisdictional objection by the Respondent, in circumstances where he was "clearly dismissed".
[33] In closing submissions, the Applicant maintained that his claim involved at least five separate workplace complaints or inquiries that constituted him exercising a workplace right, for which the Applicant alleges he suffered various forms of unlawful adverse action, including, but not limited to, being dismissed from his employment as defined by either s.386(1)(a) or s.386(1)(b) of the Act.
[34] The Applicant maintains that his resignation was provided in the heat of the moment, as a cry for help ultimatum after he had:
a. "enduring a gradual deteriorating employment relationship (caused by the Respondent's conduct) over the preceding 18 months,[8] from which he 'felt destined to fail ... because [he] wasn't given the adequate resourcing'.[9]
b. dealing with 'irate', 'abusive', 'aggressive', 'agitated' clients[10] and threats of adverse media exposure which left him 'quite terrified'[11] and was 'the straw that broke the camel's back' that led to him make a 'cry for help' to the Respondent for genuine resourcing and support for his position (which he had been requesting for many months without success."[12]
[35] The Applicant made various closing submissions that the Respondent's submissions and evidence should be viewed "with caution", including that the Respondent misconceived the Applicant's claim and provided evidence from an employee who had never met the Applicant in person. Further, the Applicant submitted that as to the hiring freeze, he was never advised of such, and further states the Redlands office had a surplus budget for adequate staff resourcing and essential positions.
[36] As to the Respondent distinguishing the current dispute from the facts of Sathananthan, the Applicant agrees the facts are clearly distinguishable, however he relies on Commissioner Hampton's reference to a "combination of...events" which he states is relevant given he used similar wording in his email to the Respondent, namely that "This combined with very little to no support from the St. Vincent de Paul Society QLD to help us with staffing shortages...".
[37] The Applicant concludes that:
"The Respondent's conduct, both acts and omissions: (i) was 'the principal contributing factor in the resultant termination of employment' (ii) was 'a sufficiently operative factor in the resignation [to make it] tantamount to a reason for dismissal'(iii) was not 'ambiguous' and had 'the probable result of bringing the employment relationship to an end'."[13]
[38] The Applicant submits that the Commission should therefore find that:
(i) "the course conduct of the Respondent detailed by the Applicant caused the probable result of forcing the Applicant's resignation, especially the Respondent's conduct on 20 July; and
(ii) that the course of conduct having such probable result continued beyond the Applicant's forced tender of resignation and lasted throughout the notice period as the Respondent failed to take any genuine positive action to address the Applicant's 'cry for help' ultimatum and allow him a meaningful opportunity to rescind his 'heat of the moment' resignation. Therein, the Respondent maintained its intention to repudiate the employment contract and end the employment relationship."
[39] The Respondent submits that the Applicant's employment ended on 14 August 2020 by way of voluntary resignation. It submits that there was no dismissal, constructive or otherwise and that the Respondent took no adverse action against the Applicant.
[40] The Respondent refers to the Applicant's email sent on 20 July, in which Mr Kann wrote, "I feel that the only resolution for myself is to resign from the position of program coordinator. I feel the only option is to resign". The Respondent submits that the Applicant had 24 hours to confirm that decision which he did.
[41] The Respondent confirms that at 3.30pm on 20 July 2020, Ms Unbalagan accepted his resignation, further to which the Applicant confirmed his four weeks' notice.
[42] The Respondent referred to the decision in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli,[14] which provides that there are two major circumstances where a resignation is forced. There might be the heat of the moment or repudiation by the employer. The Respondent submits that, in this case, the Applicant's resignation was not in the heat of the moment. He was given 24 hours to reconsider his position and he confirmed it.
[43] Further, as to any repudiation by the Respondent, it submitted that there was no change in the Applicant's working conditions or conduct of the Respondent to establish termination of employment. The Respondent's position description encompasses the completion of administrative duties and responding to telephone enquiries. The Respondent therefore submits that the completion of these tasks does not constitute a "significant change" to the terms of employment.
[44] As to any claim that the Applicant was forced to resign, the Respondent submits that this is a question of fact with the onus on the Applicant to prove that he did not resign voluntarily. The Respondent cites the decision in Ravi Sathananthan v BT Financial Group Pty Limited,[15] in which the employee alleged they were forced to resign on the basis there was inequity in dealing with complaints and a lack of action regarding his complaints of working excessive hours. The Respondent notes that in that case, the employee had consistently reported concerns about his workload and working hours, and no action was taken by the employer to address them. Commissioner Hampton there determined that the employee was forced to resign because of the:
(a) inequity in dealing with the allegations of misconduct made by the Applicant; and
(b) repeated concerns relating to excessive working hours impacting on the Applicant's mental health.
[45] The Respondent notes that the Commissioner stated:
"...it is only the combination of these events, and the working hours in particular, rather than the treatment of the [manager's] concerns about the [officer's] conduct in isolation, which has led to the requisite finding."[16]
[46] In the present dispute, the Respondent submits that there is no evidence of inequality in dealings. It submits the only repeated concern raised by the Applicant was in relation to staff shortages, and on the Respondent's evidence, due to demand it was not necessary to replace a staff member who had resigned on 3 January 2019. The Respondent's submissions were supported by a witness statement of Ms Kirstin Hinchliffe, General Manager (People and Safety) for the Respondent, who stated that management had made the decision not to replace that administrator, on the basis that client demand in the Redlands area did not require such a level of resourcing. She stated however that the remaining part-time staff members' hours were increased, and the impact on overall hours was minimal. Further, the Respondent submits that they had taken a decision not to employ during the COVID period. It submits however that when a further staff member resigned, efforts were then made to replace that staff member.
[47] The Respondent submits that issues of working overtime were only raised once by the Applicant on 22 June 2020, and while management had requested further details, the Applicant failed to provide this information. The Applicant was also told that working overtime was not required. Ms Hinchliffe gave evidence that while she was aware the Applicant had provided details of overtime worked by him and another administrator, she was not aware of any record of the Applicant working additional hours or overtime in the Respondent's payroll system.
[48] As to the Applicant's complaint regarding his wellbeing, the Respondent submits this was only communicated on 22 June 2020, further to which the Applicant was offered the EAP. It submits the only other complaint of this nature was raised by the Applicant in his resignation correspondence of 20 July 2020, where the Applicant was again offered access to the EAP.
[49] The Respondent submits that prior to his correspondence of 20 July 2020, he had not previously raised concerns regarding the behaviour of clients or prospective clients.
[50] The Respondent distinguishes the present dispute from the matters as outlined in Sathananthan and submits that the present dispute does not meet the threshold of a forced resignation. The Respondent submits there was one complaint and no evidence provided by the Applicant of excessive overtime or of inequal treatment of any kind.
[51] The Respondent submits that it did not engage in any conduct which forced the Applicant to resign and rejects the Applicant's submission that his employment was terminated at the Respondent's initiative.
[52] In closing submissions, the Respondent submits that the Applicant's dispute proceeds on the basis of complaints raised in 2019 and 2020. However, the Respondent submits that the Applicant's evidence-in-chief confirmed that the staff resourcing issues raised in 2019 were to be resolved by March 2020, when he stated:
"It was evidently then approved at the beginning of March that we could advertise and an advertisement went on Seek for 15.2 hours for an admin support officer in the Redlands and in this field."[17]
[53] Despite the Applicant submitting that he was unaware of the hiring freeze from March 2020, the Respondent notes the Applicant accepted during cross-examination that he was aware of the freeze at the time.[18]
[54] Further the Respondent submits that the Applicant confirmed during cross-examination that he had no issues with staffing resources into 2020.[19] The Respondent submits that on this basis there were not workplace complaints in 2019/early 2020 that would give rise to jurisdiction under s.340 of the Act.
[55] The Respondent acknowledges that it and the Applicant both accept in June 2020 there was an "up-tick" in the workload, and that the Applicant raised concerns regarding workloads at that time. The Respondent submits that Ms Hinchliffe confirmed in examination-in-chief that this was expected to be a short-term increase in work and the Applicant was offered solutions on how to deal with the work. The Respondent therefore submits it did not ignore the Applicant's concerns.
[56] The Respondent submits that despite the support offered to the Applicant, he voluntarily resigned from his position in July 2020 and worked out his notice period.
[57] In closing submissions, the Respondent submits it is well-established that an employer is entitled to treat a clear and unambiguous resignation as a resignation.[20] It submits that in every respect, the Applicant's resignation was at his own volition and could not be said to be the consequence of the employer's actions or any complaint made by the Applicant. The Respondent submits the resignation was not in the heat of the moment. It submits the Applicant had spoken to his wife about the decision, and in this sense, it was considered and deliberate.[21] The Respondent submits that it was entitled to accept the Applicant's voluntary resignation.
[58] The Respondent submits that it never instructed the Applicant to resign and did not direct or orchestrate the termination of his employment. It submits that it took no action against the Applicant at all. Further, it submits that it responded to the Applicant's concerns, but not in the way he wanted.
[59] For the reasons already stated, the Respondent maintains there was no repudiation of the employment by way of excessive work demands or at all.
[60] The Respondent submits that the Applicant's application should be dismissed, on the grounds that he was not dismissed from his employment with the Respondent, and there has been no adverse action on the part of the Respondent, against the Applicant.
[61] Section 365 of the Act provides:
"365 Application for the FWC to deal with a dismissal dispute
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute."
[62] Section 386 of the Act provides the meaning of dismissed as follows:
(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."
[63] Section 386 of the Act has created a clear "bifurcation in the definition of 'dismissal'", their being two grounds on which a claim could potentially proceed.[22] The Full Bench in City of Sydney RSL & Community Club Ltd v Balgowan articulated those grounds as follows:
"[9] The distinction between a dismissal falling under s.386(1)(a) and one falling under s.386(1)(b) is sought to be explained in the Explanatory Memorandum to the Fair Work Bill 2008 as follows:
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd [1995] IRCA 625; (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign."
[10] It seems clear from the above that the concept of constructive dismissal is to be accommodated by s.386(1)(b) and that concept is not subsumed in s.386(1)(a).
[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression "termination at the initiative of the employer" was:
". . . 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.''
[12] Importantly, in Mohazab the Court did not decide that the termination of employment in that case was at the initiative of the employer because there had been a constructive dismissal. Indeed, the Court expressly observed that it was ". . . unnecessary to consider whether the facts fall within or without the notion of constructive dismissal."
[13] As s.386(1)(b) is intended to capture or reflect the common law concept of constructive dismissal and as the Commissioner concluded that "the applicant was constructively dismissed" because she had accepted the Appellant's repudiation of the contract of employment and thereby brought the contract and the employment under it to an end, we consider that when read in its entirety the Commissioner concluded that the Respondent had been dismissed within the meaning of s.386(1)(b) of the Act." [23]
[64] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Full Bench expanded on the content of the two limbs:
"[47] Having regard to the above authorities and the bifurcation in the definition of "dismissal" established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.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 s.386(1)(b**). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable (sic) 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." [24] (emphasis added)
[65] The case of Mohazab v Dick Smith Electronics (No 2) is foundational, considering what is classified as a 'forced resignation'. There it was stated:
"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." (emphasis added)[25]
[66] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli, the Full Bench helpfully expounded on Mohazab:
"[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a "forced" resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O'Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:
"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."
[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:
"[23] ... 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."
[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a "forced" resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the "termination at the initiative of the employer" formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill..." (emphasis added) [26]
[67] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred.[27] Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be "closely drawn and rigorously observed."[28]
[68] The decision of Senior Deputy President Richards in Megna v No 1 Riverside Quay (SEQ) Pty Ltd provides instruction on how to interpret "forced":
"[14] It seems that the term "forced" is the past tense of the verb form "to force", and as such, an understanding of the plain meaning of the term "force" is relevant to applying s.642(4).
[15] Relevantly, the Macquarie Dictionary defines "force" as:
... strength or power exerted upon an object; physical coercions; violence ... power to influence, affect or control; power to convince ... to compel; constrain or oblige (oneself or someone) to do something ... to bring about or effect by force; bring about of necessity or as a necessary result ... to put or impose (something) forcibly on or upon a person ... to press, urge or exert to violent effort or to the utmost ...
[16] The term "force" appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purpose. In either case, there is an important element of compulsion present.
[17] In the contextual circumstances now before the Commission, the issue is whether the Applicant herself is able to demonstrate:
• But that her employer, because of its actual conduct, forced her to do so, such that there was an element of compulsion present." (emphasis added)[29]
[69] In determining whether the Applicant was left with "no effective or real choice but to resign", there are numerous case law examples from which to draw. In Boulic v Robot Building Supplies, it is held:
"[16] From the many authorities on this subject it appears that there must be a "critical action" or "critical actions" of the employer which was intended to bring the "employment relationship" to an end and perhaps action which would on any reasonable view probably have that effect. In identifying both the critical action of the employer and its intent "it is a matter of objectively looking at the employer's conduct as a whole and determining whether its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it." The examination of the employer's conduct must also take into account that the employer is under an implied obligation that it "will not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee." [30]
[70] In Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera, Senior Deputy President O'Callaghan stated that there must be consideration of all alternative options available to the employee:
"[28] Whilst in absolutely no way condoning Fingal Glen's behaviour, I have concluded that the resignation decision was based on Ms Bruce's perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce." [31]
[71] In Ashton v Consumer Action Law Centre, Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:
"[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management's actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.
[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.
[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton's grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Ashton to resign.
[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer." (emphasis added) [32]
[72] I am satisfied based on the material presented before me that that Applicant's employment was not terminated at the initiative of the Respondent. The Applicant resigned his position by email on 20 July 2020, the contents of which is set out above. That resignation could not be characterised as a "heat of the moment" resignation, in circumstances where the Applicant confirmed his intention to resign the following day by email, whilst confirming his notice period. It is clear the Applicant was dissatisfied with the Respondent's response to those emails, which was to accept his resignation. It may be the Applicant hoped that the Respondent would consult with him about his reasons for resigning and offer to change the working conditions to make the Applicant stay. However, the Respondent was under no obligation to do so. Having received the Applicant's resignation, the Respondent was entitled to accept it. Similarly, while the Applicant may have wanted an opportunity, following a discussion of the reasons for his resignation (had one occurred), to withdraw his resignation, the Respondent would have been under no obligation to take the Applicant back. The Respondent simply acted on the resignation tendered by the Applicant. The test for dismissal set out in s.386(a) of the Act therefore fails.
[73] The real question in this case was whether the Applicant was forced to resign because of the Respondent's conduct or course of conduct pursuant to s.386(b) of the Act. The authorities indicate that I must consider whether the Respondent engaged in the conduct with the intention of bringing the employment to an end or whether termination was the probable result of the Respondent's conduct such that the employee had no effective or real choice but to resign.
[74] The Applicant stated that he was not happy in his employment. He felt unsupported and that his concerns regarding workload (that he says he raised with the Respondent) were not being heard or actioned. It should be noted that the Respondent disputes the extent to which the Applicant raised his concerns prior to the Applicant's resignation. Nevertheless, taking the Applicant's evidence at its highest, it is clear he was frustrated and annoyed by what he viewed as the Respondent's inaction to his concerns. Even so, I am not satisfied that, when viewed objectively, the Respondent's conduct forced the Applicant's resignation or amounted to a constructive dismissal. It may be that the Respondents could have better managed the conversations with their employees, however I am not satisfied that the Applicant was targeted by the Respondent, nor that any of its actions objectively left the Applicant with no other option to resign. The Applicant decided that he had enough of working for the Respondent and indicated as much in the email on 20 July 2020, as he was entitled to do. The Respondent then accepted that resignation. I am not satisfied that when viewed objectively, the Applicant was forced to resign because of the Respondent's conduct. The test under s.386(b) fails.
[75] For the reasons set out above, in respect of the question of dismissal, I find that no dismissal occurred. The jurisdictional objection is upheld. Accordingly, this decision need not consider the merits of the application.
[76]
For these reasons, I order that the Applicant's application under s.365 of the Act be dismissed.
[1] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19(3)].
[3] Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268, [48].
[5] Applicant's statement of evidence signed on 17 December 2020, at [6].
[6] TR PN355. See also PN354, PN324-PN325.
[8] See for example Transcript at PN284-PN390 in particular: PN346, PN354-PN355; PN317, PN322, PN324-PN329.
[10] Transcript PN322, PN324, PN325-PN327.
[13] O'Meara v Stanley Works Pty Ltd [2006] AIRC 496 (PR973462) at [22] - [23] citing ABB Engineering Construction Pty Ltd v Doumit.
[18] Transcript PN410, PN414, PN441, PN471, PN483.
[20] Ngo v Link Printing Pty Ltd (1999) 94 IR 375 at [12].
[22] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, [47].
[23] City of Sydney RSL & Community Club Ltd v Balgowan [2018] FWCFB 5, [9]-[13] (Balgowan).
[25] Mohazab v Dick Smith Electronics (No 2) [1995] IRCA 625; (1995) 62 IR 200, 205-206 (Mohazab).
[27] Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].
[28] Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).
[30] Boulic v Robot Building Supplies [2010] FWA 6905, [16].
[31] Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera [2013] FWC 3941, [28].
[32] Ashton v Consumer Action Law Centre [2010] FWA 9356, [59] - [62].
Printed by authority of the Commonwealth Government Printer
Mr Thomas Kann
St Vincent De Paul Society Queensland [2021] FWC 2849
(1995) 62 IR 200
(1999) 94 IR 375