Justin Gilmour principal and Mitford Investments forced me to resign on the 20th November 2019 where his explanation was that I upset a referral partner at Hartleys which was also a personal friend of Justin Gilmour's. I did not have any recent dealing with Hartley's and I feel Mitford Investments (Integro) forced me to resign after my raised concerns around non-compliance by Mitford Investments (Integro) where in October 2019 Mitford Investments (Integro) had to self-report to ASIC for 154 breaches of misconduct and non-compliance. I also raised concerns with Mitford Investments (Integro) around collection and non-disclosure of conflicted remuneration which I discovered in September 2019 when Justin Gilmour asked me to assist with the dial-down of brokerage commission for a client John Rogers.'[11]

[20] In brief, Mr Adaszko submits that contrary to the Deputy President's decision, he was forced to resign. Mr Adaszko advances three arguments in support of this contention:

1. He was asked to resign at the meeting on 15 October 2019 and agreed to do so, in part, because Integro agreed to forgive a loan facility which Integro had provided to Mr Adaszko in February 2017. Integro subsequently forwarded a document purporting to reflect that agreement, but that document contained conditions which Mr Adaszko could not accept. In short Mr Adaszko submits that Integro did not honour its side of the bargain and he 'felt deceived'.

2. If he had not resigned Integro would not have acted as a 'satisfactory referee' which would have impaired his ability to obtain future employment.

3. The forced resignation occurred after he had raised concerns around Integro's non-compliance and misconduct in respect of its obligations as a financial adviser.

[21] The first point amounts to little more than a complaint that Integro did not honour its side of the agreement reached at the 15 October 2019 meeting. Any failure by Integro to honour that agreement is a contractual matter between the parties; it is not relevant to the issue of whether Mr Adaszko was 'dismissed' within the meaning of s.386.

[22] The other two points seek to advance arguments which were not put at first instance and in respect of which no evidentiary foundation is proffered. As to Mr Adaszko's complaints to ASIC, it may be accepted that such complaints were made but there is no evidence to support Mr Adaszko's assertion that after he had raised the concerns Integro 'didn't want me to be part of their organisation'.[12] Nor was anything put about this matter at first instance.

[23] The function of an appeal under s.604 (as modified by s.400) is to correct error. Absent error on the part of the primary decision-maker it is not the function of the appeal process to give unsuccessful parties an opportunity to recast their case in the hope of a different outcome. The arguments advanced by the Appellant in this respect do not speak to any error that the Deputy President may have made; it can hardly be an error to fail to take account of an argument that was not advanced.

[24] We have earlier set out the Deputy President's conclusion in respect of the issue of whether Mr Adaszko had been dismissed (within the meaning of s.386(1)(b)) and the basis for that conclusion. We now turn to consider whether there is an arguable case for Mr Adaszko's assertion that the Deputy President erred in concluding that he had not been dismissed.

[25] The issue in dispute was the application of the second limb of the definition of 'dismissed' in s.386(1)(b), namely whether Mr Adaszko had been forced to resign 'because of conduct, or a course of conduct' engaged in by Integro.

[26] The second limb of the definition in s.386(1)(b) was considered in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli:[13]

'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 probably 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.'[14]

[27] In circumstances where an employee asserts that they were forced to resign it falls to the employee to persuade the Commission that they did not resign voluntarily and to establish that the employer forced the employee's resignation, by identifying action on the part of the employer which brought the relationship to an end or action that had that probable result. In short Mr Adaszko bore the evidentiary onus of establishing that he had been forced to resign.

[28] The extent to which the legal concept of onus or burden of proof applies to matters before an administrative tribunal such as the Commission is somewhat vexed. However, as observed by the Full Bench in Advanced Health Invest Pty Ltd T/A Mastery Dental Clinic v Mei Chan:[15]

'[43] As to the issue of onus agitated by the Respondent, it must be said that the extent to which the legal concept of onus or burden of proof arises in relation to matters considered by an administrative tribunal such as the Commission is a difficult one. However, in the context of the question whether a dismissal is unfair, to the extent that there is a legal onus or something analogous to it, the onus rests on the applicant in the sense that it is the applicant who bears the risk of failure if the satisfaction required by s.385 including s.385(c) is not reached. As to evidentiary onus, plainly a party seeking to establish a fact bears onus of adducing evidence necessary to establish that fact. In a practical sense, in most cases the question of where an evidentiary onus resides will be answered by asking: in relation to each matter about which the Commission must be satisfied, which party will fail if no evidence or no further evidence about the matter were given?'

[29] As we have mentioned, in the proceedings at first instance Messrs Adaszko and Gilmour gave evidence. As to the circumstances in which his employment ended Mr Adaszko said:

"• On 20th November 2019 I was asked to resign from Integro by the Principal Justin Gilmour both verbally and via email on the 20th November 2019 (copy of email attached to this application).

• I was asked to resign or face performance counselling which I was told would be very unpleasant even though I was achieving my targets and job objectives as evidence by the job scorecards and compliance reports attached to this application.

• I was asked to resign and in turn Justin Gilmour would forgive a loan facility he provided in February 2017. The funds from the loan facility were used to purchase clients from my previous employer whereas a result Justin Gilmour has been receiving the ongoing revenue from these clients and is still receiving the ongoing revenue from these clients.

• I resigned from Integro on the 21st November 2019 and Justin did not perform his part of the agreement by forgiving the loan facility. Justin Gilmour lodged a civil procedure claim against me for the loan facility in April 2020.'[16]

[30] Mr Adaszko's oral evidence is set out at [57] to [184] of the Transcript. During the course of his cross examination Mr Adaszko acknowledged that the highlighted text in the Separation Arrangement Email was his response to Mr Gilmour and that, in those responses, he did not put Mr Gilmour on notice that he was aggrieved with his resignation.[17]

[31] We note that on a number of occasions during the course of his cross examination Mr Adaszko provided non-responsive answers to the questions put to him and was directed to answer the questions put.[18] We now turn to the Respondent's evidence.

[32] The Form F3 - Employer response to unfair dismissal application - filed by Integro states:

'At a meeting on 15 October 2019 the Applicant verbally informed the Respondent that he would resign from his position but required time in which to transition to alternative work.

On 22 November 2019 the Applicant provided a letter of resignation to the Respondent.

The Applicant's final day of employment with the Respondent was on 13 December 2019.'[19]

[33] Integro advanced two jurisdictional objections:

• The application was out of time; and

• The Applicant was not dismissed.

[34] The Respondent's outline of submissions addresses the second jurisdiction objection in the following terms:

'3. On 15 October 2019, the Applicant informed Mr Justin Gilmour, a Director of the Respondent, that the Applicant would resign from his position with the Respondent but required time to find alternative work.

1. On 22 November 2019, the Applicant produced his letter of resignation to the Respondent (a copy has been filed by the Applicant in these proceedings).

2. Consistent with the Applicant's resignation, the last day of the Applicant's employment with the Respondent was on 13 December 2019.'[20]

[35] In his witness statement Mr Gilmour says:

'5 On 15 October 2019, the Applicant informed me, at the Respondent's office situated at 38 Station Street, Subiaco, that he would be resigning from his position with the Respondent but required time to find alternative employment.

1. The Respondent was prepared to give the Applicant time to source alternate employment.

2. On 22 November 2019, the Applicant produced his letter of resignation to me by email. Attached to this witness statement is a copy of the Applicant's letter of resignation.'[21]

[36] During the course of cross examination Mr Gilmour stated that Mr Adaszko had verbally resigned at the meeting on 15 October 2019[22] which was later formally confirmed on 20 November 2019.[23]

[37] The following exchanges took place during the course of Mr Gilmour's cross examination:[24]

'MR ADASZKO: So, Mr Gilmour, just to clarify that I resigned from Integro, or I was told to resign, due to poor performance?---So when we spoke about the performance and the feedback from the referral partners, and I asked you, 'What choice do we have', and it's like - well, and you go - you offered to resign. So it's like, well, that's all we could work with.

MR ADASZKO: So I was - was I asked to resign, due to poor performance?---You - we went through the process of what the referral partners had said then you said, 'So we will go down performance management', that's what we discussed in the meeting and then - then you said, 'Well, I'll resign', which previously you said, 'If we ever went down performance management I would resign'.

But, Mr Gilmour, was I told to resign due to poor performance, or I resigned voluntarily?---The

Do you understand me?---The feedback we discussed, from the referral partners, the feedback. So the option was to either go down performance management, then you opted to resign. That's it.'

[38] The following exchange between the Deputy President and Mr Gilmour is also relevant:

'THE DEPUTY PRESIDENT: Mr Gilmour, just for my assistance, in the discussion about the feedback from the referral partners, is that the right word, did that happen on 15 October or around 22 November?---No, on 15 October.

And between 15 October and 22 November there was some discussions about how that departure might occur?---Yes. So there was the offer of assistance, to make it easier for him to transition to find other employment, which we agreed to that we would give some financial assistance, via a loan. Then he said - then we agreed that we would get an agreement done, I would forego the loan that we had already leant him previously, if he signed the agreement to say that he wouldn't solicit clients.'

[39] As is apparent from the Decision, the Deputy President accepted Mr Gilmour's evidence that Mr Adaszko chose to resign rather than go through a performance management process. Such a finding was plainly open on the evidence.

[40] In our view the evidence falls well short of establishing that Mr Adaszko was forced to resign. Indeed on Mr Adaszko's own evidence he was merely asked to resign and was offered an inducement to do so in the form of an offer to forgive a debt. As we have mentioned, Mr Adaszko's real complaint is that he upheld his part of an agreement with Integro by resigning but Integro did not honour its side of the bargain.

[41] The Deputy President did not err in concluding that Mr Adaszko had not been dismissed within the meaning of s.386.

[42] Section 394(1) provides that 'a person who has been dismissed may apply' for an unfair dismissal remedy. As Mr Adaszko was not dismissed he lacks the requisite standing to make this application. It follows that we need not consider that part of the appeal which is directed at the Deputy President's refusal to grant an extension of time.

[43] As we have mentioned, s.400(1) provides that permission to appeal must not be granted unless the Commission considers that it is in the public interest to do so.

[44] During the course of oral argument Mr Adaszko submitted that it was in the public interest that permission to appeal be granted because four other advisors had left Integro in the first six months of 2020 (after he left Integro) and that Integro's conduct, in respect of both employment matters and more generally, warranted examination.[25]

[45] In our view the considerations advanced do not enliven the public interest; they bear no relevant relationship to the decision subject to appeal. Even if we take the assertion made at face value we know nothing of the circumstances in which the employment of these advisors ended and, in any event, the FWC does not have the statutory remit to conduct an inquiry into the employment practices of particular employers. As to Integro's conduct more generally, that is a matter for ASIC not the FWC.

[46] We are not persuaded that the decision subject to appeal discloses any error of principle or any significant error of fact. Nor has Mr Adaszko established an arguable case of error in relation to the Deputy President's conclusion that he was not 'dismissed' within the meaning of s.386.

[47] We are not persuaded that Mr Adaszko has established that it is in the public interest to grant permission to appeal and accordingly we refuse permission to appeal.

[1] [2020] FWC 5497.

[2] Mr Gilmour's witness statement at [5], Digital Court Book (DCB) at pp 34 - 35; also see Transcript 16 October 2020 at [223], [230], [232] and [234].

[5] This is so because on appeal the Commission has power to receive further evidence, pursuant to s.607(2); see Coal and Allied v AIRC [2000] HCA 47; (2000) 203 CLR 194 at [17] per Gleeson CJ, Gaudron and Hayne JJ.

[6] O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 per Mason CJ, Brennan, Dawson and Gaudron JJ; applied in Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78 at [44]- [46].

[7] [2010] FWAFB 5343, 197 IR 266 at [24] - [27].

[8] [2011] FCAFC 54; (2011) 192 FCR 78 at [43].

[9] Wan v AIRC [2001] FCA 1803; (2001) 116 FCR 481 at [30]

[10] Lawrence v Coal & Allied Mining Services Pty Ltd t/as Mt Thorley Operations/Warkworth [2010] FWAFB 10089 at [28], 202 IR 288, affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler and others [2011] FCAFC 54; (2011) 192 FCR 78; NSW Bar Association v Brett McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663, 241 IR 177 at [28].

[11] Appellants Outline of Submissions at [1.2(a)], [1.2(c)], [1.2(d)] and [2(3)].

[12] Transcript, 9 February 2021 at [20].

[13] [2017] FWCFB 3941 at [47].

[14] Ibid at [47]. Also see Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200 at p. 206]. Also see Wilkie v National Storage Operations Pty Ltd [2013] FCCA 1056 at [99].

[15] [2019] FWCFB 5104.

[17] Transcript, 16 October 2020 at [108] - [114] and [116] - [117].

[18] For example, see Transcript, 16 October 2020 at [106], [117], [129], [147] - [149].

[22] Transcript, 16 October 2020 at [217].

[23] Transcript, 16 October 2020 at [218].

[24] Transcript, 16 October 2020 at [223], [230] and [232].

[25] Transcript, 9 February 2021 at [66].

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