Fair Work Act 2009

s 773 - Application to deal with an unlawful termination dispute

Application to have the Fair Work Commission deal with an unlawful termination dispute - allegation of gender discrimination - claims of unsatisfactory performance and poor conduct - option to resign under State legislation -right to resign exercised - constructive dismissal - whether the applicant forced to resign - parties agree to consent arbitration of jurisdictional objection - application resigned voluntarily - no dismissal - no termination at the initiative of the employer - application has no reasonable prospects of success - application dismissed.

[1] On 19 November 2018, Ms Samantha Hudson (the 'applicant') filed an application, pursuant to s 773 of the Fair Work Act 2009 (Cth) (the 'Act'), in which she seeks to have the Fair Work Commission ('the Commission') deal with an unlawful termination dispute. The applicant contends that her dismissal as Director, Service Design by Transport for New South Wales (the 'respondent') on 30 October 2018, was unlawful in that she had been 'systematically discriminated against on the grounds of her gender (as had other female employees)'. She seeks reinstatement and 'protection from ongoing discrimination'.

[2] The respondent objected to the application on jurisdictional grounds; namely, that following an investigation and subsequent findings as to the applicant's unsatisfactory performance and conduct and her proposed dismissal, the applicant elected to exercise her right to resign in accordance with s 68(2)(a) of the Government Sector Employment Act 2013 (NSW) (the 'GSE Act'). It followed that as the applicant's employment was not terminated by the respondent, there was no dismissal for the purposes of Part 6-4 of the Act.

[3] The Commission listed the matter for a conference on 7 December 2018, pursuant to s 776 of the Act. However, as no settlement of the applicant's claims was reached, directions were issued for a hearing on 5 February 2019. Shortly after, both parties' legal representatives (Ms J Fisher, Solicitor for FCB Workplace Law for the applicant and Ms R Miller, Lawyer - Employment and Safety for the respondent), agreed that the Commission should determine the matter 'on the papers.' To the extent necessary, I granted permission for the applicant to be represented by a lawyer, pursuant to s 596 of the Act (Ms Miller, being an in-house lawyer, permission was not required). After the parties filed submissions on the jurisdictional objection, I had cause to advise them as follows:

His Honour has been reviewing the material filed by the parties in respect to the jurisdictional objection of Transport for NSW to Ms Hudson's s 773 unlawful termination application.

Your attention is drawn to the Commission's powers to deal with matters of this kind in s 776 of the Act, which requires the Commission to issue a certificate of unsuccessful conciliation as a 'trigger' to any further arbitral proceedings in a Court. The Commission can, of course, issue a non-binding recommendation or opinion. However, His Honour understands Transport NSW seeks orders that the substantive application be dismissed under s 587 of the Act.

Under s 777, the Commission may only arbitrate the dispute by consent, and only if requested by the parties within 14 days of the issuance of a certificate under s 776(3). It seems clear that neither of these two steps have been taken in order for the Deputy President to arbitrate the jurisdictional objection. Like General Protections applications, this includes a substantive application seeking the dismissal of the Unlawful Termination application under s 587.

In order to avoid any potential appeal in this respect and to correct the record, the Deputy President is prepared to issue the certificate, but will require compliance with s 777, if he is to arbitrate the jurisdictional objection 'on the papers' (as previously requested). Attached is the s 776 Certificate signed today and His Honour awaits your further advice.'

[4] By email dated 30 April 2019, the parties indicated their consent to my determining the jurisdictional objection, pursuant to s 777 of the Act.

[5] I agree with both legal representatives that the material facts of this matter (at least for the purpose of the jurisdictional objection) are not in contest and the Commission need only consider their respective submissions on the matter. Nonetheless, I have considered and taken into account the statement evidence of the applicant and Ms Meaghan Graham, Executive Director, People and Corporate Affairs, Rail Group which, in effect, is largely reflected of the parties' written submissions.

[6] Before coming to the parties' respective cases, I set out below a short summary of the relevant facts.

[7] The applicant had worked in the New South Wales Public Service for 20 years. On 17 December 2013, she commenced employment as Director, Service Design New South Wales Train Link at Senior Executive Band 1. As a Senior Executive, the applicant's terms and conditions were governed by an employment contract signed on 5 May 2017. Her total remuneration package was $289,973 per annum. She reported directly to the Chief Operating Officer of Sydney Trains. At the time of her termination of employment, the applicant had 10 direct reports and 29 indirect reports who, from time to time, had to be counselled or performance managed by her.

[8] In July 2018, the respondent raised concerns with the applicant about her conduct following complaints of bullying and harassment by two employees. She was subsequently informed that the allegations of misconduct were groundless. Nevertheless, the applicant attended five Executive Coaching sessions between 9 May 2018 and 7 August 2018.

[9] In April 2018, the respondent commenced the procedure for managing unsatisfactory performance in respect to the applicant, in accordance with s 68 of the GSE Act and Rule 36 of the Government Sector Employment (General) Rules 2014 (NSW). However, it was not until 16 October 2018 that the applicant was informed of the 12 allegations in relation to her conduct. She was given until 22 October 2018 to respond to the allegations. On 18 October 2018, the applicant sought, and was granted an extension of time to respond to the allegations in writing. Her response was provided on 23 October 2018. A meeting to discuss her response was scheduled for the next day, but did not proceed due to the applicant's illness. On 29 October 2018, the applicant was informed by letter that a decision had been made to terminate her employment on the grounds of unsatisfactory performance. Relevantly, this letter records, inter alia:

'The meeting on 16 October 2018, and the letter, provided you with enough particulars for you to adequately respond to the concerns about your performance. It is my view that your response did not adequately address those concerns. Instead, your response focused on finding out further information about individual circumstances. Your response was defensive and did not indicate an acceptance of the performance concerns or self-awareness of the impact your management style can have on others. Further, you did not express remorse or contrition that others have been harmed by your management style. It is also my view that the response received was more in keeping with a middle manager rather than a senior executive.

I have no confidence that you are willing to change or address the issues with your performance as a senior executive or senior leader.

Accordingly, I have decided to proceed with termination of your employment on the grounds of unsatisfactory performance.

Under clause 15(a) of your contract of employment and s68N of the Transport Administration Act your employment is terminated effective Tuesday 30 October 2018. In accordance with clause 15(a)(iii) a payment of 13 weeks at your remuneration package rate will be paid to you along with any accrued leave...

If you would prefer to resign rather than have your employment terminated, you can elect to do so. If you make this election, your employment will end tomorrow but it will be processed as a resignation. Please inform me by no later than 4pm Tuesday 30 October if this is your preferred option.' (my emphasis)

[10] At this juncture, I point out that the option of resignation referred to above, arises directly from s 68(2)(a) of the GSE Act which provides as follows:

'If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the head of the agency may (without limitation on relevant action) take any of the following actions:

(a) terminate the employment of the employee (after giving the employee an opportunity to resign).'

[11] On the same day (29 October 2018), at 4.12pm, the applicant sent an email to the respondent which reads:

Thank you for your letter 29th October 2018 advising me that you have decided to proceed with the termination of my employment as my response did not adequately address your concerns.

I elect to have the termination reflected as a resignation effective 30 October 2018, thank you.

I'll bundle any TrainLink property for collection from my home at 0900 tomorrow.

[12] On 6 November 2018, the applicant wrote to the Deputy Secretary, People and Corporate Services, Transport for New South Wales, disputing the reasons for the termination of her employment and requesting a review. She further stated 'on 30 October 2018, I resigned, under threat of termination from my position as Director of Services Design at New South Wales Train Link.'

[13] The Acting Deputy Director of People and Corporate Services responded on 21 November 2018 in a letter which stated:

I refer to your letter addressed to Ms Elizabeth Mildwater, dated 6 November 2018, in which you outline concerns you have about the circumstances of your recent departure from NSW TrainLink. Ms Mildwater has commenced in her new role at TfNSW as Deputy Secretary, Customer Service and Technology. I am currently acting as Deputy Secretary, People and Corporate Services.

I note that you assert in your letter that Ms Meg Graham (Executive Director People and Corporate Affairs, Group Rail) threatened to terminate your employment and that the circumstances were harsh and unfair. I also note that you believe you were denied information and therefore an opportunity to respond to any new issues regarding your workplace behaviour and performance and that Ms Graham was resolute in terminating your employment.

Whilst there is no general right of review or appeal to the Deputy Secretary, People and Corporate Services, I have reviewed the circumstances surrounding the cessation of your employment.

Given that the termination of your employment was a result of you electing to resign and that the final decision by the delegate of termination of employment was not implemented, I am not proposing to take any further action.

I appreciate this is a difficult time for you. Please be aware that you may continue to access the Employee Assistance Program (EAP) for support if you require it. EAP can be contacted on 1300 364 213.'

[14] Mr J Zeng, Senior Legal Counsel, Transport for New South Wales, set out a summary of the respondent's case at the commencement of his written submissions as follows:

• (a) Where an employer has not terminated an employee's employment, the Commission is not able to deal with the application in accordance with sections 773 and 776 of the Act and any such application, purportedly made pursuant to section 773 of the Act, is invalid.

• (b) As part of its jurisdictional objection, the respondent makes an application that the Commission dismiss the applicant's application under subsections 587(1)(a) and 587(2)(b) of the Act, as the applicant's application was not made in accordance with the Act.

• (c) The provisions of Part 6-4 of the Act do not provide for the common law doctrine of constructive dismissal. The applicable test is whether the termination was at the initiative of the employer.

• (d) In any event, the respondent submitted:

  • (i) whilst it accepts that its conduct led to the applicant's employment being terminated, it did not cause the termination of employment, nor did it force the applicant to resign;

  • (ii) the applicant was provided an effective choice in accordance with s68(2) of the GSE Act;

  • (iii) the applicant is legally represented and appeared to have been legally represented, or had access to legal advice, from at least 18 October 2018;

  • (iv) the applicant was a senior employee who had previously advocated for other employees facing dismissal, and was not inexperienced in relation to the performance management action and disciplinary processes;

  • (v) the termination of the applicant's employment was not due to the implementation of the respondent's final decision, but rather the applicant's decision of her own volition, was to elect to accept the option to resign from her employment provided to her by the respondent;

  • (vi) the applicant's conduct, immediately following the termination of employment, was consistent with the applicant having resigned from her employment as evidenced in her letter to the Deputy Secretary, People and Corporate Services, Transport for NSW; and

  • (vii) the applicant has the benefit of her exit from the respondent being treated as a resignation, rather than a termination of employment, due to unsatisfactory and/or poor performance.

[15] It was submitted that an employee who voluntarily resigns, and who was neither forced nor coerced to do so by the employer, cannot bring an unlawful termination claim under s 773 of the Act as the termination of employment must be at the 'initiative of the employer'. In this respect, reliance was had on the following decisions:

• Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 ('Mohazab');

• Appeal by Victorian Association for the Teaching of English Inc v de Laps [2014] FWCFB 613 ('de Laps');

• ABB Engineering Construction Pty Limited v Doumit Print N6999 ('ABB Engineering');

• Pawel v Advanced Precast Pty Ltd Print S5904 ('Pawel'); and

• O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 ('O'Meara').

[16] Mr Zeng submitted that the applicant bears the onus of establishing that the termination of her employment was at the 'initiative of the employer'. This involves an examination of all the facts, and in particular, consideration of the critical actions in relation to the termination of employment. In this case, a process was undertaken and completed, and a decision was made. The applicant was not treated 'peremptorily' and she prepared her resignation after being given the option to do so. There are no factors which could characterise her resignation as being forced or coerced. Mr Zeng said that on any reading of her 29 October 2018 letter, it cannot be said to be impolite, blunt or oppressive, and in no way was it an ultimatum. There were ongoing benefits in her option to resign, rather than having been dismissed. Mr Zeng said that had the applicant not resigned, the decision to terminate her employment would have been implemented and that would be a dismissal at the 'initiative of the employer'. He conceded that although the respondent's conduct led to the applicant's employment being terminated, it was not the critical action which resulted in it taking place.

[17] Mr Zeng observed that not only did the applicant not wait until 4pm on 30 October 2018 to give her response (see [11] above), she did so at 4.12pm on 29 October 2018. She thanked Ms Graham in her email and indicated she would bundle up any property for collection the next day. Relevantly, she had been legally represented since at least 18 October 2018. Further, the applicant's senior role had involved her in disciplinary and termination matters concerning other employees; see: Hardwick v National Australia Bank Ltd t/a National Australia Bank [2017] FWC 354 ('Hardwick'). Mr Zeng noted that in her 6 November 2018 letter to the respondent, the applicant did not seek to retract her resignation. Even with having the benefit of legal advice, she had made an informed choice.

[18] In any event, Mr Zeng submitted the applicant's resignation was not sought, suggested or encouraged by the respondent's officers. He described it as a 'matter of indifference' to the respondent. The option of resignation did not arise from any action by the respondent, but rather arose following the exercise of a statutory right by the applicant. Mr Zeng submitted that this opportunity had a number of real benefits for a public sector employee, including:

• (a) a Statement of Service reflecting resignation, rather than dismissal, in order to maximise the employee's opportunities to obtain alternative employment;

• (b) the respondent's records will properly reflect a resignation, rather than dismissal if inquiries are made by prospective employees, including within the New South Wales Government Sector;

• (c) any former employee of the New South Wales Government Sector who applies to another position in the Sector must disclose their previous employment. The prospective agency then undertakes a service check. All that is disclosed in the check is that the employee resigned;

• (d) if the Commission found that the applicant was terminated by the respondent, its records would need to reflect that decision;

• (e) resignation, rather than dismissal, mitigates the harshness of the termination of employment; and

• (f) for employees under a defined benefits superannuation scheme, there will be greater superannuation entitlements for a resignation, rather than a dismissal.

[19] Mr Zeng concluded by submitting that the application should be dismissed pursuant to s 587 of the Act, as the application has no prospects of success.

[20] After setting out the background to the application, Ms J Fisher submitted that the applicant had never been given an opportunity to properly respond to the allegations against her, apart from her written response of 23 October 2018, despite her asking for further details in order to respond more fully. A final decision had been made in haste before 26 October 2018, in a period of only ten days. Ms Fisher said the respondent decided to accept the applicant's resignation only after the decision to terminate her employment.

[21] Ms Fisher discussed the legislative provisions in Part 6-4 of the Act - Unlawful Termination - and the Object of the Division in s 771. She did not contest that the Commission had the general power to dismiss an application under s 773 of the Act, where the conditions in s 587 of the Act are satisfied. However, Ms Fisher rejected Mr Zeng's submission that the provisions under Part 6-4 do not apply to the case law. Ms Fisher also relied on the decisions in Mohazab, ABB Engineering, de Laps, Pawel and O'Meara to submit that the entirety of the conduct of the respondent is relevant to objectively considering whether the applicant believed she had a choice to resign or not.

[22] Ms Fisher referred to cl 15(a) of the applicant's contract of employment dealing with termination. It reads:

'The Employee's employment may be terminated by either the Employer or the Employee in accordance with the Employer's relevant policy by way of the following:

(i) written agreement between the Employee and Employer;

(ii) the Employer giving 4 weeks' written notice to the Employer;

(iii) for termination for unsatisfactory performance, the Employer giving up to 13 weeks' written notice to the Employee;

(iv) for termination due to redundancy of for no reason, the Employer giving 38 weeks' written notice to the Employee.'

Ms Fisher claimed the respondent did not engage with the 'relevant policy' (being the agency's performance management system), and did not comply with GSE Rule 36(1). At no time had her performance (as distinct from conduct) been criticised. Moreover, the respondent did not properly take into account the applicant's response. The majority of the matters relied on for establishing unsatisfactory performance were:

(a) not related to any recent conduct, and many incidents allegedly occurred a considerable time prior to the termination and the performance management process;

(b) never investigated or substantiated as even having been real complaints, let alone that the complaints were found to have been made (and then substantiated) by a proper investigative process; and

(c) never put to the applicant in a manner that allowed her to meaningfully or properly respond to them, despite her requests for further information and particulars. Annexure B of Ms Graham's Statement, which forms the basis of the reasons for the applicant's termination, was never given to the applicant and she was unaware that such complaints had ever been made, or that such a document existed.

[23] Ms Fisher submitted that the disciplinary process was fundamentally flawed for the following reasons:

• (i) the applicant's conduct was incorrectly characterised as unsatisfactory performance, when the allegations all raised concerns in relation to the conduct of the applicant;

• (ii) the applicant was never notified that the respondent, or any member of the respondent's related organisations, considered that she was performing at an unsatisfactory level until she received the letter on 16 October 2018;

• (iii) the allegations in relation to the applicant's conduct against other employees were, by admission of the respondent, in Annexure B, never fully (or at all) investigated by the respondent;

• (iv) the allegations in Annexure B, included matters as far back as 2014 and were not put to the applicant. Annexure B incorrectly asserts that the allegations 'identified a significant pattern of inappropriate behaviour by Ms Hudson', and yet by its own admission, the respondent neither investigated them, nor put them to her. No appropriate behaviour pattern was ever established;

• (v) the applicant's direct manager, Mr Peter Allaway, who reviewed the performance of the applicant, always determined that the applicant was performing satisfactorily, including formally, as recently as September 2018 which was after all the allegations identified in Annexure B against the applicant were said to have occurred;

• (vi) the applicant was directed to, and did complete coaching in leadership and management training. However, she was never informed that her conduct or performance was under review, or that her employment was at risk. In fact, she was informed in March 2018 (Annexure E to the applicant's Statement) that she had not engaged in misconduct, there was no basis to undertake a disciplinary investigation or take any further action, and that the matter was closed; and

• (vii) in addition, the applicant was presented with the termination letter which stated that she had the option to resign. At no time, was she told that her employment with the respondent could continue on any basis, and no option was provided to the applicant to dispute her determination. The letter was provided to the applicant at her home address. She was not given an opportunity to attend her workplace to challenge or discuss the decision with the decision maker. Arrangements had already been made for the collection of her possessions.

[24] Ms Fisher contended that the 'critical action' was not the applicant's resignation. Rather, it was based on the action taken through an inherently flawed process and a final decision. It was a sufficiently operative factor; see: ABB Engineering at [7]. The applicant was coerced into resigning in order to avoid having to defend a procedurally unfair process. She had no realistic choice but to resign and had not done so in writing. Her email refers to her termination being reflected as a resignation.

[25] In addition, Ms Fisher referred to Ms Graham's briefing note annexed to her statement, which plainly demonstrated there were no substantiated breaches (eight of which were not even investigated). There was certainly no opportunity for the applicant to adequately defend the majority of the allegations. Ms Fisher distinguished the decision in Hardwick in that:

• the applicant never had an opportunity to challenge the validity of the decision to dismiss her for unsatisfactory performance;

• the applicant's performance was considered satisfactory up until September 2018; and

• the applicant did not provide a clear or unambiguous resignation; it was a 'reflection.'

[26] Ms Fisher further submitted there were no benefits to the applicant in resigning. She neither understood, nor was ever told, that her superannuation benefits were impacted by the characterisation of the termination. It was further put that the applicant did not obtain any legal advice about her resignation before sending her 29 October 2018 email.

[27] Finally, Ms Fisher said that the respondent had not acted in accordance with the GSE Act, because she was not offered the opportunity to resign before termination. She was clearly told she was terminated and then told she could seek to have the termination reflected as a resignation.

[28] Mr Zeng submitted that the gist of the applicant's case appeared to be a denial of procedural fairness in not following a legal or correct process. He rejected this for three reasons:

• (a) there is no evidence to support this submission;

• (b) the applicant acknowledged that she resigned; and

• (c) procedural fairness is not a matter relevant to jurisdiction.

[29] Mr Zeng rejected the submission that the consideration should be of the entirety of the conduct of the respondent only. This was the incorrect approach. The principle is that the entirety of the conduct of the parties is to be considered. The applicant's case ignores, or gives little weight, to her own conduct in resigning.

[30] Mr Zeng reiterated that the concept of 'constructive dismissal' found in the unfair dismissal provisions of the Act, is not imported into the framework for unlawful termination of employment in Part 6-4. He then dealt again with the constructive dismissal cases set out at [15] above.

[31] In any event, Mr Zeng submitted that the fairness of the process, how 'seriously' it considered the applicant's conduct or performance to be, and its reasons for reaching the decision to terminate under s 68(2)(a) of the GSE Act, are irrelevant to jurisdiction.

[32] Mr Zeng put that the applicant seems to have suggested that she should have been given some third option to resignation (or dismissal). There is no such requirement in the GSE Act or the Rules. Nor does s 68 of the GSE Act deal with procedural fairness issues. If the employer decides to take the action under s 68(2), it is simply required to give the employee an opportunity to resign - exactly what happened here.

[33] Mr Zeng submitted that the issue is not whether the applicant would have otherwise left her employment. It is about the manner of her leaving. While it can be accepted that the applicant may not have willingly left her employment, she willingly resigned to take advantage of the benefits in doing so. This was the critical action. Mr Zeng relied on his previous submissions as to these benefits; see [18] above; and noted, in any event, the benefit acknowledged by the applicant herself when she said:

'I was hopeful that if I chose the "resignation" option, HR would elect to mark me suitable for re-hire so as to improve my chance of re-employment in the public service.'

Mr Zeng said there was no evidence of the respondent's coercing or forcing the applicant to resign, or that she was under duress. The applicant's statement confirms she was indeed weighing the options. Mr Zeng accepted the applicant had not received legal advice about her resignation.

[34] Mr Zeng submitted that the fact the applicant was paid above her contractual entitlements, is irrelevant. He rejected the submission that the applicant was coerced to resign in order for the respondent to defend a procedurally flawed process. Firstly, there was no coercion. Secondly, Ms Graham was statutorily obliged to offer the applicant an opportunity to resign. Thirdly, the correctness of the process, or otherwise, is irrelevant to jurisdiction.

[35] Mr Zeng rebuffed the applicant's submission that the applicant's resignation was unclear or ambiguous. On the correct interpretation of all the correspondence between the parties, it was clear the respondent offered the opportunity to resign, pursuant to s 68(2) of the GSE Act, and the applicant accepted the offer. A necessary consequence was a reference in the respondent's records to reflect the resignation.

[36] Mr Zeng expressly rejected the applicant's submission that the timing of the offer of resignation was inconsistent with the GSE Act. The decision to terminate was conditional by the applicant's election to resign before 4pm the day after receiving the 29 October 2018 letter. She did so on the same day. In any event, the GSE Act does not prescribe the time at which the opportunity is to be given. Even if it was a relevant matter, no breach of s 68 of the GSE Act arises.

[37] Mr Zeng rejected the applicant's submission that a requirement to amend the respondent's records to reflect resignation was some sort of threat or coercion. As a public sector employer and model litigant, the respondent would be compelled to do so to ensure the findings of the Commission are properly recorded. To do otherwise would equate to the applicant having it 'both ways' - a resignation reflected in the records, but still pursuing an application for unlawful termination by the respondent. Such a proposition would not be accepted by the Commission.

[38] Section 771 of the Act provides as follows:

The object of this Division is to give effect, or further effect, to:

(a) the ILO Convention (No. 111) concerning Discrimination in respect of Employment and Occupation, done at Geneva on 25 June 1958 ([1974] ATS 12); and

(b) the ILO Convention (No. 156) concerning Equal Opportunities and Equal Treatment for Men and Women Workers: Workers with Family Responsibilities, done at Geneva on 23 June 1981 ([1991] ATS 7); and

(c) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4); and

(d) the Termination of Employment Recommendation, 1982 (Recommendation No. R166) which the General Conference of the ILO adopted on 22 June 1982.'

[39] Section 773 of the Act provides as follows:

'773 Application for the FWC to deal with a dispute

(a) an employer has terminated an employee's employment; and

(b) the employee, or an industrial association that is entitled to represent the industrial interests of the employee, alleges that the employee's employment was terminated in contravention of subsection 772(1);

the employee, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.' (my emphasis)

[40] Section 68(2) of the GSE Act provides:

'If the performance of an employee of a government sector agency is determined to be unsatisfactory in accordance with those rules, the head of the agency may (without limitation on relevant action) take any of the following actions:

(a) terminate the employment of the employee (after giving the employee an opportunity to resign),

(b) reduce the remuneration payable to the employee,

(c) reduce the classification or grade of the employee,

(d) assign the employee to a different role.'

[41] It was common ground that the Commission has the power to dismiss an application under s 773 of the Act, provided one or more of the tests set out in s 587 of the Act are satisfied. I would add there is no reason to doubt this conclusion, as s 587 does not limit the words 'an application' to a specific application brought under the various and distinctly different Parts found elsewhere in the Act.

[42] Section 587 reads:

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3-2, see section 399A.'

(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:

(a) is frivolous or vexatious; or

(b) has no reasonable prospects of success.

(a) on its own initiative; or

(b) on application.'

[43] It must firstly be observed that applications under s 773 of the Act are not regularly encountered by the Commission. Given the limitation on the powers of the Commission to conduct a conference of the parties in an attempt to resolve the claim, there are few decisions of the Commission under the powers of the Commission to hear and determine the application, only by consent, of the parties. Less frequent, and even probably unique to this case, there are no decisions, let alone Full Bench authority of which I am aware, which have dealt with a jurisdictional objection of this kind. I am required to determine this matter under the unlawful termination of employment provisions of the Act. That said, and as I will come to in due course, the question of whether the application is beyond jurisdiction is, in my opinion, a relatively straightforward question, because the unlawful termination of employment provisions cannot apply if the applicant resigned voluntarily. This would mean that there could be no termination at the 'initiative of the employer'.

[44] Before coming to this central issue, it is necessary to comment on a number of the submissions of the parties. Firstly, Mr Zeng submitted that the notion of 'constructive dismissal', often encountered in unfair dismissal cases, cannot be imported into the unlawful termination of employment provisions of the Act. I disagree for the following reasons:

• (a) A finding of 'constructive dismissal' invariably requires a conclusion as to whether the termination of employment was at the 'initiative of the employer'. So much is evident from the large body of authority which was relied on by both parties in their submissions. These principles are well known and firmly established in industrial jurisprudence. There is no reason to conclude that the words used in the Object of Division 2 of Part 6-4 of the Act 'to give effect, or further effect, to:

(c) the ILO Convention (No. 158) concerning Termination of Employment at the Initiative of the Employer, done at Geneva on 22 June 1982 ([1994] ATS 4)'

should be given a different meaning to that which has been authoritatively determined by the Courts and the Commission over many years.

(b) The meaning of 'dismissed' in Part 3-2 - Unfair Dismissal of the Act are relevant to the words in s 773(a). The only relevant definition of that term is found at s 386 which reads:

(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.'

There are no words in Part 6-4 which expressly or impliedly suggest the words 'termination of employment' mean something different, or should be read in some other way, than how they are applied in Part 3-2. It is one of the principles of statutory construction that the same words or phrases appearing in different sections of the same Act, are to be afforded the same meaning, unless there is an express intention to the contrary. I propose to adopt that principle to the words in s 773.

(c) I have some difficulty reconciling Mr Zeng's submission that the notion of constructive dismissal cannot be imported into Part 6-4, when the bulk of his submissions addressed exactly that issue by reference to the well-known authorities and with his conclusion that the termination of the applicant's employment was not brought about at the 'initiative of the employer'.

[45] Secondly, Ms Fisher focused her submissions on the alleged unfair process undertaken by the respondent in coming to its decision to terminate the applicant's employment for unsatisfactory performance. While it is understandable why these submissions would be made, I make three observations on these submissions:

• (a) The process leading to an employee's termination of employment (including by resignation) is, in essence, a submission on the merits of the case. It is irrelevant to the jurisdictional objection.

• (b) The option to resign under s 68(2)(a) of the GSE Act, does not import any consideration of the veracity and fairness or otherwise, of the decision taken by the employer to terminate the employee's employment. The right to do so is a statutory right which does not require justification, or consideration of whether the employee disputes the allegations against her, or challenges the procedures taken and the dismissal decision.

• (c) Accepting there is relevance of the unfair dismissal provisions to the unlawful termination provisions of the Act, a recent Full Bench decision of the Commission concluded that the process taken by the employer (to dismiss), is irrelevant to the Commission's task for itself to determine whether a particular dismissal is unfair. In Illawarra Coal Holdings Pty Ltd T/A South32 v Matthew Gosek [2018] FWCFB 749, the Full Bench, by majority, found at [92]:

'We agree that any flaws in this internal decision making process was an irrelevant consideration in determining if there was a valid reason for the dismissal. The role of the Commission, in determining if there is valid reason for dismissal based on the conduct of the employee, is to determine if the conduct occurred based on the evidence before the Commission and not based on the evidence before the decision maker. If the employer reached that conclusion based on a flawed investigation then that is irrelevant. The Commission is not being asked to determine if the employer had reasonable grounds for believing the conduct occurred. It is difficult to see how any flaws in the investigation could be a relevant factor. Here the Commissioner had regard to the internal decision making process under s.387(h). Even if we were to accept that there were flaws in the investigation, it is for the Commission to determine if the conduct occurred; if the employee was afforded procedural fairness as provided for in s.387(b), (c) and (d); and whether there were mitigating factors which would make the dismissal harsh. A dismissal may be unfair even if the employer's internal decision making process is fair and a fair internal dismissal process will not by itself turn an unfair dismissal into a fair one.'

[46] Thirdly, I do not accept Ms Fisher's submission that the termination of employment preceded the applicant's exercise of her option to resign. The 29 October 2018 letter to the applicant ([9] above), makes abundantly plain that the termination of employment was to take effect on Tuesday 30 October 2018. Obviously, she remained an employee until that time or if in the alternative she resigned by 4pm on 30 October 2018. Rather than wait until the deadline the next day, the applicant resigned at 4.12pm on 29 October 2018, effectively ending the employment relationship before her termination at the initiative of the employer could take effect and while she was still employed.

[47] 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 29 October 2018, the Commission has no jurisdiction to determine her unlawful termination application.

[48] According to the Macquarie Dictionary 'initiative' is defined as:

The oft quoted authority as to the meaning of 'termination at the initiative of the employer' is that found in Mohazab 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.''

[49] In 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 in O'Meara 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.

[50] 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.'

[51] A Full Bench of the AIRC in ABB Engineering 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.''

'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.'

[54] In my view, there is an air of unreality about the applicant's submissions in this case. Firstly, it is not true that the applicant had no option, other than resignation. The option which would have obviously avoided this jurisdictional objection, would be to have been dismissed. She would then have had the option to dispute the allegations, challenge the process and seek remedies, including reinstatement, under either this section of the Act, the General Protections provisions, or in terms of her possible contractual rights in the Courts. The decision to resign was hers, and hers alone.

[55] Secondly, I do not accept the applicant's email of 29 October 2018 was unclear or ambiguous, and presumably, somehow not a true resignation. This submission ignores the reality of the correspondence from the respondent and any reasonable interpretation of her response email. Her response was cordial, almost friendly. There is not a whiff of force, coercion or duress. She did not even ponder her decision for another 24 hours. It appears from her statement that she was, in fact, balancing the benefits of resignation. Objectively, the resignation email was a considered and deliberate exercise of her right to resign, rather than be dismissed. The focus on the word 'reflected' as not meaning a true resignation is, with respect, a very long bow to draw. To attempt to focus on the word 'reflected' as somehow meaning the applicant was 'reflecting' on her decision, or that it implied some form of coercion, is with respect, an entirely misplaced connotation. On any view, the plain intention was to 'reflect' or 'record' her termination of employment as a resignation in the respondent's employment files as the accurate characterisation of the termination of employment - an entirely unremarkable administrative consequence of her resignation.

[56] Thirdly, I do not accept the submission that s 68 of the GSE Act was not complied with because it refers to 'performance', rather than 'conduct.' In my opinion, and in the present context of the GSE Act, the concepts of unsatisfactory performance and unsatisfactory conduct will often overlap. It may be said to be a 'distinction without a difference'. Often, a person's conduct will also be illustrative of unsatisfactory performance. Although I make no findings about the merits, it seems reasonable to assume that some of the allegations against the applicant related to her capacity to properly interact with other employees. When viewed in this way, the allegations can be alternatively described as unsatisfactory performance in her role as a Senior Manager.

[57] Fourthly, the applicant made a curious submission, in that by recording her departure as a resignation and not a dismissal in the respondent's records, this represented an attempt to force or coerce her to resign. This submission is without substance. There is no evidence that there was any discussion in the meeting on 16 October 2018 or in the exchange of correspondence, that the benefits or detriments of resignation were raised; let alone discussed. There is certainly no evidence that anyone mentioned amending the respondent's records from dismissal to resignation. If nothing was said about it at the time, it is not possible to claim it was a factor in her being subsequently forced to resign. The truth is Ms Graham was doing no more than fulfilling her statutory duty to advise the applicant of the option of resignation under the GSE Act. She was ambivalent about whether the applicant took the option or not.

[58] In coming to the heart of the matter, it must be said, contrary to the applicant's submission, that resignation is self-evidently a preferable option than dismissal based on unsatisfactory performance. The benefits are obvious; a person will carry their employment record throughout their working life. Resigning from a position during this journey means the ignominy of dismissal, even if the employee strongly denies the reasons for it, should not impact on the likelihood of obtaining alternative employment. When seeking future employment and the employee is asked why they left employment, they must be truthful about the reason. It goes without saying that such non-disclosure or falsehood could result in adverse consequences.

[59] It should also be observed that in this case, public sector employees in New South Wales have a statutorily enshrined right to resign, rather than face dismissal. This is not an automatic right available to a private sector employee, being an alternative to dismissal for cause. This is why, in many cases of unfair dismissal which come before the Commission, and where a settlement is negotiated, there is often a request from an applicant (often agreed to) to convert a dismissal to a resignation, even when the dismissed employee has already obtained alternative employment.

[60] Moreover, it is also apparent that at the time, the applicant herself was weighing up the benefits of resigning when she said in her statement:

'I was hopeful that if I chose the "resignation" option, HR would elect to mark me suitable for re-hire so as to improve my chance of re-employment in the public service.'

[61] Lastly, it is unclear whether there is a differential superannuation treatment in the context of dismissal or resignation. The applicant did not believe this to be the case. In any event, even if there are no superannuation implications based on the reason for dismissal, the important consideration is the one I have just set out about resignation replacing dismissal on a person's resume.

[62] For all these reasons, I am satisfied that in the exercise of her right to resign under s 68(2) of the GSE Act, the applicant did so willingly and voluntarily, without coercion or pressure. Her termination of employment was not at the 'initiative of the employer' and she was not dismissed by Transport for New South Wales (Sydney Trains). It follows that the Commission has no jurisdiction to determine the matter.

[63] The application must be dismissed pursuant to s 587(1)(c) of the Act, as it has no reasonable prospects of success. I order accordingly.

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