Andrew Kim v Orc International Pty Ltd

[2016] FWC 1029

[2016] FWC 1029 [Note: An appeal pursuant to s.604 (C2016/574) was lodged against this decision and the order arising from this decision - refer to Full Bench decision dated 6 May 2016 [[2016] FWCFB 2642] for result of appeal.]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Andrew Kim
v
ORC International Pty Ltd
(U2015/13199)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 FEBRUARY 2016

Application for relief from unfair dismissal.

[1] Mr Andrew Kim was employed by ORC International Pty Ltd as a casual employee. The parties are in dispute as to whether Mr Kim’s employment was terminated. The resolution of this dispute is necessary as only employees who have been dismissed may make an unfair dismissal application.

Permission to appear

[2] Mr Andrew Maher, a legal practitioner sought permission to appear for ORC. He submitted that that the matter involved some complexity as the question to be determined was whether a casual employee was constructively dismissed. It was submitted that representation would enable the matter to be dealt with more efficiently. Further, he submitted, that the person who would represent ORC was a witness and that would create difficulties. Mr Kim submitted that permission should not be granted as he was representing himself as he could not afford legal representation. He submitted that ORC was a large multinational company with dedicated HR employees. He submitted that another senior manager, who was not a witness, was capable of representing ORC. He submitted that the case involved a factual dispute and it did not involve any complexity. He submitted that permitting legal representation would only make the matter more complex. I determined to grant permission for ORC to be represented by a lawyer. I did so because while the factual matters were not complex, the issue of when a casual employee who is stood down is dismissed involves some complexity and the matter would be able to be dealt with more effectively if legal representation was permitted.

Hearing or conference

[3] I determined that the matter should proceed by way of a hearing. Mr Kim sought a conference but that was opposed by Mr Maher. It was put that given the serious allegations put by Mr Kim against some of the witnesses, it would be preferable if a more formal approach was followed. Given there was no consensus about this I determined to hold a hearing. I accept the submission that given Mr Kim’s allegations of dishonesty on the part of some witnesses that a more structured hearing would enable the matter to be heard in a way which promoted a greater distance between the participants. I did not consider that having a hearing would cause Mr Kim any particular disadvantage.

The Background

[4] ORC employed casual employees to conduct interviews. Casual employees advise ORC of their availability on a weekly basis. They can do this in person or by telephoning. Casual employees are required to have a minimum level of availability each week. 1 The NUW and AMSRO Marketing and Social Research Industry Agreement 2013-2016 (the Enterprise Agreement), which applies to this work, provides that priority for work is given to casual employees who have worked or been available for work, on a regular and systematic basis over the previous 12 months. ORC in allocating work has to have regard to availability, merit, need to develop skills and length of service.

[5] Mr Kim was initially employed by ORC in May 2006. In the second half of 2014 Mr Kim had a significant period of time off work. He had initially planned to take five weeks off but he did not return as advised. 2 Ms Maureen Lee Stewart, the Regional CATI Manger, gave evidence that Mr Kim was absent for nearly five months and he was taken off the books.3 Mr Kim said he did not advise ORC of his extended absence because he did not know what procedure he needed to follow to advise ORC that he was not returning as previously advised. Upon his return Mr Kim was put back on the books and ORC agreed to recognise his service.

[6] Mr Kim was placed in the ad hoc team but he was then not offered work for approximately three months. His hours of work varied. For example, for two weeks in April and June he was not offered any work. In July he was only offered eight hours work, as for three of the weeks, there was no work available. In August he only worked for one week. Mr Kim worked on 1 September and accepted that he did not work for the rest of the week because there was no work available. 4

The events of 1 September

[7] On 1 September 2015, Mr Kim was involved in an incident with his supervisor Ms Tara Sariban.

[8] Mr Kim described what happened.

[9] Mr Kim asked Ms Sariban the reason why the SAPN team had been split up and isolated. She told him it was because of the rates. Mr Kim told Ms Sariban that no one had spoken to them about their rates and if it was an issue then they should be warned. Ms Sariban, after some further discussion, told Mr Kim that she could seat them where she wants. Mr Kim accepted this but told her that splitting them up was disciplinary action and discriminatory. After further conversation Mr Kim said “quietly” “that’s f_ing immature”. Ms Sariban asked him to repeat what he had said and he did so. Ms Sariban then left. 5 After about ten minutes Ms Sariban returned and spoke to Mr Kim whilst he was in the coding room. He said to Ms Sariban “You walked away before I could apologize. I apologize, that was completely out of line and not appropriate language in the workplace.” Mr Kim said Ms Sariban accepted his apology and when he asked what she intended doing “now that you’ve made complaints about me?” Ms Sariban told Mr Kim she did not know and then Mr Kim put to her that she swears and Ms Sariban replied that that’s different.6

[10] Ms Sariban’s version of what occurred differed.

[11] Ms Sariban said that Mr Kim asked her who had prepared the seating plan and she said she had. He asked her why she had made the change and she told him it was to keep the dial rate up. In her statement made soon after the event, Ms Sariban detailed the conversation and that accorded with Mr Kim’s description of the conversation except that Ms Sariban said Mr Kim told her that she was being f_ing childish. When she asked him to repeat what he said, Mr Kim said “I said it was f_ing childish.” 7

[12] Ms Sariban then asked Mr Kim to come with her into the coding area. She said she asked another supervisor Mr James Hawthorne to be a witness. She said she asked Mr Kim and Mr Hawthorne to wait in the coding area while she got some advice about what to do. Ms Sariban was eventually advised by Mr Edward Tax, a Senior Supervisor, that she could send Mr Kim home if she felt it was warranted. 8

[13] When she went back to speak to Mr Kim, she said Mr Hawthorne was no longer in the coding room. Mr Kim then said to her “you didn’t give me a chance to apologise.”

[14] Mr Kim submitted that Ms Sariban’s evidence about Mr Hawthorne is “completely false” 9 because Mr Hawthorne gave evidence that he did not discuss the matter with Mr Kim and Mr Kim would not have been aware that he was involved in the situation.10 Mr Kim tendered an email from Mr Hawthorne in which he described being approached by Ms Sariban who asked him to be present when she discussed the matter with Mr Kim. Mr Hawthorne said he went into the kitchen with another employee where Mr Kim was waiting. He said he did not speak to Mr Kim and he then left to go back to the phone room.

[15] I do not accept Mr Kim’s characterisation of Ms Sariban’s evidence. The only issue which is not clear is whether Mr Hawthorne came into the kitchen or the coding room. Nothing turns on this. Ms Sariban did not say that Mr Hawthorne witnessed any conversation with Mr Kim. It is clear from her evidence that she was seeking advice from others and by the time she returned to speak to Mr Kim, Mr Hawthorne had left.

[16] In cross examination Mr Kim put that he was having a conversation with Ms Kim as a co-worker and that he was not aware it was her decision to separate the team members. 11 I do not accept that evidence as it was entirely inconsistent with Mr Kim’s own description of the conversation with Ms Sariban.

Mr Kim’s removal from the roster

[17] From the week beginning 7 September 2015, the roster had an annotation next to Mr Kim’s name namely no shifts until further notice.

[18] Mr Jonathon Nokes, a Senior Supervisor, gave evidence that he spoke to Mr Roland Henkul, the Regional Technical & Operations Director, on 5 September about the incident between Mr Kim and Ms Sariban. He said that Mr Henkul told him “not to book Andrew Kim for any shifts in the next couple of weeks. Lee Stewart, [his] manager, was on leave and would be back within that time.” As a result he greyed out Mr Kim’s name on the roster. 12 It was his evidence that if Mr Kim’s employment had been terminated he would have removed him from the roster completely.

[19] Mr Henkul became aware of the incident on the day it occurred. He told Ms Sariban that what was said was inappropriate and “could be considered aggressive behaviour so she should have sent him home.” 13 He asked Ms Sariban to document what happened which she did and he copied Ms Sariban’s email to Ms Lydia Smith, the Human Resources Manager. A couple of days later he spoke to Mr Edward Tax a senior supervisor and they agreed that Mr Kim should have been sent home and that supervisors needed to be aware of this. Mr Henkul believed his role in the matter was not needed until Ms Stewart returned. If she decided further action was necessary then she would escalate it to Ms Smith and himself.14

[20] The next day, Mr Henkul spoke to Mr Nokes about the incident. He “mentioned to Jonathan that [he] was surprised that Tara was not sure that she could have sent Andrew Kim home because of his aggressive behaviour and that we needed to discuss incidents like this more during our quarterly supervisor meeting. I also mentioned to Jonathan that we shouldn’t tolerate behaviour like this as supervisors should not feel as they are working in an unsafe environment. As I was walking away, I said off the cuff that we should not be offering shifts to people who swear at our supervisors who are just trying to do their job and therefore putting them in a position where they feel intimidated. This was certainly not intended as a direction to Jonathan not to offer any shifts to Andrew Kim. It was not my role to do this as there were processes in place to terminate employees for improper conduct (via HR). I do not believe Jonathan saw my comment as any more than a casual aside.” 15

[21] Unfortunately for all concerned Mr Nokes took Mr Henkel’s comment as a direction and made the notation on the roster.

[22] Mr Kim said that Mr Henkul’s description of what occurred as aggressive misrepresented what happened. Mr Henkul gave evidence that he told Ms Sariban that Mr Kim’s conduct was inappropriate and “could be considered aggressive behaviour.” 16 He later in his “off the cuff” conversation with Mr Nokes referred to it as “aggressive behaviour.”17 Mr Kim admitted that his response to his supervisor when she had made a decision to split them up that her decision was “f_ing immature18”. Mr Kim says this is not swearing at his supervisor. I do not agree. Had Mr Kim not intended Ms Sariban not to hear what he said when he was asked to repeat it he could have responded differently for example he could have said “you weren’t meant to hear that, sorry”. However he repeated the comment so that Ms Sariban was clear what he thought. I agree that Ms Sariban did not describe his conduct as aggressive but Ms Sariban did not doubt that Mr Kim was swearing at her.19

[23] Mr Kim was available to work in the week beginning 7 and 14 September. 20 It was his evidence that he told Ms Sarah Brown that he was available the week of 21 September. Ms Brown did not recall Mr Kim advising her of his availability. Given Mr Kim’s clear recollection I prefer his evidence about this. Ms Brown gave evidence that Mr Kim called her on 13 September to ask if he had any shifts and she told him that he had no shifts for the following week.21 Mr Kim said he asked Ms Brown if his normal project, (SAPN) was running that week and she said it was not. Ms Brown could not recall this part of the conversation. There is no doubt that that the roster showed that there were some SAPN shifts that week.22 Mr Kim gave evidence that he was aware prior to making this phone call that his name had been “greyed out” on the roster. I do not accept Mr Kim submission that Ms Brown chose to lie for her employer. That she gave him incorrect advice is not evidence that she deliberately lied.

[24] On 21 September Ms Brown made a file note of her conversation with Mr Kim. She noted that at the last supervisors meeting she had brought this issue up as “no senior supervisor or manager had spoken/written to the interviewer saying his behaviour was unacceptable (swearing and arguing with a supervisor) and was told to say “there are no shifts for you” with no follow up reply to why if they asked.” 23

[25] Mr Kim rang Mr Nokes about his shift. He said he knew his name had been greyed out and that SAPN had started the previous week and was still running. It was his evidence that Mr Nokes prevaricated. Mr Kim tendered Mr Nokes’ record of the conversation as evidence that he lied to him.

[26] Mr Nokes’ evidence of this matter is set out in his witness statement and in a file note he made the same day. He told Mr Kim he didn’t have any shifts and there was nothing available for him. Mr Kim asked Mr Nokes about ad hoc work and he was told there was no work available. Mr Nokes denied telling Mr Kim that any particular job was not running or that there was no ad hoc work. He simply told Mr Kim there was no work available for him. Mr Nokes gave evidence that Mr Kim then spoke about the incident with Ms Sariban and told Mr Nokes that he did not swear at Tara. Mr Kim asked Mr Nokes if he had been dismissed and Mr Nokes told him he had not been dismissed. After some more discussion Mr Nokes told him to talk to Ms Stewart. 24

[27] I do not accept Mr Kim’s submission that Mr Nokes lied to him. Mr Nokes told Mr Kim there were no shifts for him. Mr Nokes knew at this time that the reason for that was because he had marked the roster that Mr Kim not receive shifts until further notice. That Mr Nokes did not tell Mr Kim why he had not got shifts is unfortunate but he did not lie to Mr Kim.

[28] On the same day Mr Kim spoke to Ms Stewart. She is responsible for day to day disciplinary matters. Ms Stewart was overseas on 1 September and was not involved in the process whereby Mr Kim was removed from the roster. 25 Ms Stewart was verbally advised that an incident had occurred and she understood at the time that it had been dealt with and did not follow it up. Also Ms Stewart did not have full access to her computer files and emails until 17 September.26

[29] Ms Stewart was not aware until a supervisors meeting held later that week that Mr Kim had not been spoken to about the incident. She told the supervisors that if Mr Kim rang he was to be told he needed to speak to her or to Mr Nokes so that the incident could be discussed. Due to the failure of Ms Brown to record Mr Kim’s availability for the week commencing 21 September 2015 Ms Stewart did not think he was available to work that week.

[30] Mr Kim rang Ms Stewart on 21 September. She described Mr Kim as being “insulting, rude to [her], derisory and disrespectful, alleging [she] lied and that [she] had instructed [her] supervisors to lie.” 27 Ms Stewart told Mr Kim he had not been terminated and she asked him to send her his version of what had happened on 1 September 2015. Ms Stewart said that Mr Kim told her that she was not the right person to deal with the matter as she was not “trustworthy.”28

[31] Ms Stewart prepared a file note of this conversation. In that record she notes that she advised Mr Kim that they didn’t have any work for him and that there was very little ad hoc work available at the moment. Mr Kim told her he was being disciplined unfairly. He asked why he was greyed out. Ms Stewart advised Mr Kim that she had seen a report about him swearing at a supervisor and this was unacceptable and would affect his shifts. He was told that as a casual employee there was no guarantee or entitlement to further shifts. Mr Kim mentioned going to Fair Work and the courts.

[32] Mr Kim admitted swearing but denied swearing at the supervisor and wanted to know what he was alleged to have said. Ms Stewart told him that she needed to review the report. There was discussion about the incident.

[33] When Mr Kim accused her of lying and instructing her supervisors to lie, Ms Stewart told him that these allegations/accusations were unacceptable. Mr Kim said that Ms Sariban was defaming him and challenged her version of events. He told her that he had been told there were no shifts and that SAPN was not running. Ms Stewart told Mr Kim she had been away for a month. Mr Stewart asked Mr Kim to put his concerns in writing and they would be addressed. 29

[34] Mr Kim forwarded an email the same day in which he repeated his allegations and attached a document setting out his version of events. That document was password protected. Ms Stewart forwarded the email to Ms Smith.

[35] Ms Stewart sent Mr Kim an email on 23 September telling him that the matter had been escalated to HR and that they had requested that the password be provided so that the matter can be investigated.

[36] In his email, Mr Kim said that Ms Stewart confirmed that she had banned him indefinitely from getting shifts. He said she initially denied the existence of a ban but after Mr Kim pointed out that his name was greyed out she told him it must have happened without her knowledge.

[37] He said Ms Stewart stopped denying she had implemented the ban after he suggested to her that she was claiming that her subordinates implemented this ban without her authorisation even when she was on holidays.

[38] He said Ms Stewart claimed there was not enough work for him and denied the SAPN interviewing had started last week. Mr Kim said she changed her story once he told her that SAPN was on the roster and she had briefed new interviewers on the job. He told Ms Stewart that an indefinite ban was a summary dismissal yet Ms Stewart told him that he had not been dismissed. He said she was doing this to avoid an unfair dismissal claim. He said that Ms Steward that instructed her subordinates to “knowingly make false statements to support [her] strategy.”

[39] He asked for the report that Ms Sariban had provided to her and copies of the minutes of the meeting he was alleged to have attended with Ms Sariban and another unknown supervisor. He said if they refused to provide the documents he would commence proceedings for unfair dismissal. He provided a copy of his version of events but it was password protected “so that [she] cannot accuse [him] of changing [his] story once I see Tara’s version. Similarly I don’t want my account to influence your version of the truth.” 30

[40] Mr Kim did not provide the password and on 28 September 2015 he lodged an unfair dismissal application.

[41] Ms Smith said she asked Ms Stewart to obtain the password and she organised a meeting with Ms Stewart and Mr Henkul the next day to discuss the matter. Ms Smith gave evidence that she could not investigate the matter until she was given the password so that she had Mr Kim’s version of events. She said any dismissal had to be approved by her and no approval was sought to dismiss Mr Kim. On 6 November 2015 she sent Mr Kim a letter asking for him to contact her to arrange a suitable meeting time. 31

Submissions

[42] Mr Kim’s primary submission was that the decision to remove him from the roster was a dismissal. He submitted that this action was evidence that ORC intended to bring the relationship to an end. 32 Mr Kim submitted that ORC had repudiated his contract of employment when it failed to offer him employment.33 He said that he was dismissed on 1 September, which was his last rostered shift.

[43] Mr Kim submitted that because he was not told that he was not being offered shifts and because ORC did not tell him when this would come to an end he had been dismissed. 34 Mr Kim in oral submissions submitted that he had been dismissed on 4 September or there abouts when the decision was taken to not offer him shifts until the matter was resolved.35

[44] Alternatively he submitted that he resigned his employment on 27 September 2015 when he stopped giving availability and his resignation was due to the conduct of his employer. 36 He said was treated with bad faith.37The bad faith was exhibited by Ms Brown, Mr Nokes38 and ORC’s failure to tell him what was happening.39 Mr Kim submitted that ORC was acting dishonestly.40

[45] ORC submitted that up to the date of his unfair dismissal application Mr Kim was told that he had not been dismissed. This was confirmed by Ms Smith on 6 November 2015. It acknowledged that Ms Stewart’s absence on annual leave until mid-September had prevented this matter being resolved in a more expeditious and straightforward manner and may have led to confusion on the part of Mr Kim about what was happening. 41

[46] It submitted that its failure to offer Mr Kim shifts for two weeks when little or no ad hoc work was available did not constitute the termination of Mr Kim’s employment. 42 It said that Mr Kim had recently experienced extended periods of no work being offered to him. It submitted that Mr Kim had not submitted availability since 10 September 2015 and he was not eligible to receive shifts. If his employment ended on 22 September it was voluntarily terminated on his own initiative.

Consideration

[47] It is difficult to see how this common law concept of repudiation has any work to do in relation to casual employees. At common law a casual employee’s contract of employment ceases at the end of each engagement. An employer of a casual employee does not repudiate that contract when it fails to offer another shift.

[48] In any event my task is not to determine if ORC repudiated Mr Kim’s contract of employment. I am required to determine if Mr Kim’s employment has been terminated at the employer’s initiative or if Mr Kim resigned whether he was forced to resign because of conduct or a course of conduct engaged in by ORC.

[49] It is often difficult to determine when a casual employee’s employment is in fact terminated. For example has a casual employee who has regularly worked four shifts a week who is then offered one shift a fortnight been dismissed? In this case is an employee, who has been taken off the roster, pending the resolution of a disciplinary matter, been dismissed?

Was Mr Kim’s employment terminated on 1 September or 5 September 2015?

[50] There is no evidence on which I could find that ORC made a decision on 1 September 2015 or on or about 5 September 2015 to dismiss Mr Kim. At best, the evidence suggests that by 5 September Mr Nokes formed the view that he had been instructed not to offer Mr Kim any shifts until Ms Stewart returned to work in a couple of weeks. While the standing down of a casual employee without notice to them may in some circumstances constitute a summary dismissal, in this case I find it was not. One because the evidence established that no decision was in fact made to permanently remove Mr Kim from the roster. I accept that there was a misunderstanding between Mr Nokes and Mr Henkul about his temporary removal. Mr Nokes action was only ever intended to be temporary until Ms Stewart’s returned and investigated the matter.

[51] Further I accept the submission of ORC that not offering Mr Kim work for two to three weeks was not inconsistent with Mr Kim’s work pattern. Mr Kim accepted that he was able to not make himself available for work for considerable periods of time without notice to his employer without ending the employment relationship. When he had again made himself available for work there was a three month period when he was offered no work. In the month before the incident he had four weeks when there was no work offered. While I accept that in this case work was not offered because of Mr Nokes’ notation on the roster, this does not alter my conclusion. ORC were obliged to offer work to employees on the basis of the criteria set out in the Enterprise Agreement. As Mr Kim had not worked on a regular and systematic basis for the previous 12 months other employees had priority over him. Further there was no evidence on which I could conclude that but for the notation on the roster Mr Kim would necessarily been offered work in this period.

[52] I accept Mr Kim’s submission that he should have been told what was happening. While I accept that Ms Stewart’s absence complicated matters, it is not reasonable for Mr Nokes to make the notation on the roster that Mr Kim was not to be offered shifts until further notice without Mr Kim being advised of that decision. While ORC’s procedures were inadequate this does not mean that Mr Kim was dismissed.

Was ORC’s conduct such that Mr Kim had no choice but to resign?

[53] In Kylie Bruce v Fingal Glen Pty Ltd (in liq) 43 the Full Bench said:

[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

“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”.

[14] It is important that this passage be read in the context of the judgment as a whole. It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd (Pawel)and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.

[16] In Pawel the Full Bench said that:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee...”

[17] In ABB Engineering, the Full Bench said that:

“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.”

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... 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.”

[19] Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act.

[54] It went on to say:

[22] In relation to whether on “an objective analysis of the employer’s conduct” the late payment of wages and failure to pay superannuation “was of such a nature that resignation was the probable result”, we note that the Full Bench in O’Meara was drawing from Rheinberger. In that case Justice Moore said that:

“However it is plain from these passages [in Mohazab]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”.

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient 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”. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.

[24] In the circumstances of the present case, resignation was a possible and foreseeable result of the Respondent’s conduct, and in many respects a reasonable response in the circumstances. However this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. Given the other avenues available to the Applicant to pursue her complaints, and taking into account the nature of the Respondent’s conduct, we do not consider that the Applicant’s resignation was objectively the probable result of the Respondent’s conduct, and therefore that the Applicant was forced to resign because of that conduct. In this regard, we note that although there were delays in the payment of wages, the delays were short and the Applicant was paid her wages in full, and that the Applicant did not take any further steps to pursue her complaints other than raising them with the Respondent.

[55] In Victorian Association for the Teaching of English Inc v Debra de Laps 44 the Full Bench made the following observation are reviewing the case law:

“[35] Having regard to the terms of s.386(1)(b) of the FW Act, the Explanatory Memorandum in respect of s.386(1)(b), its predecessor in the amended WR Act and the decisions in respect of the common law doctrine of “constructive dismissal”, there may be some question as to whether all of the dicta in the case law to which the Full Bench in Fingal Glen refers are applicable to s.386(1)(b) or whether s.386(1)(b) is narrower than some of that dicta. However, for reasons which will become apparent, we do not need to determine that issue in this matter.”

[56] Mr Kim submitted that the failure to offer him shifts; the conduct of Ms Brown, Mr Nokes, Ms Stewart and Mr Henkul; the failure of ORC to follow its own procedures; and its failure to back down when he gave them that opportunity meant he had no choice but to resign.

[57] When Mr Kim decided to no longer make himself available for work and hence resigned his employment, he was aware that he was not offered shifts because of the incident with Mr Sariban. He was told that Ms Stewart had not made any decision to remove him from the roster as she had been on leave. He had been asked to provide his version of events. He had been told that the matter would be investigated. He was told that he had not been dismissed. Whatever misunderstandings had occurred up to this time, the situation was clarified in the conversation between him and Ms Stewart. Unfortunately Mr Kim did not believe Ms Stewart. However his belief that Ms Stewart was lying to him is not sufficient for a finding that he had no choice but to resign.

[58] I accept that Mr Kim was frustrated at what he saw as a deliberate attempt to obscure what was going on but he in fact misunderstood what had happened. I do not accept his contention that Ms Brown, Mr Nokes or Ms Stewart lied to him. It is unfortunate that when he spoke to Ms Stewart he did not accept her explanation that she had been away whilst this was occurring. His belief that she was not telling him the truth was without foundation. Allowing for the obvious fact that people recall conversations in different ways I accept Ms Stewart’s version of the telephone conversation on the matters I need to determine.

[59] Mr Kim’s recollection of the conversation was coloured by his belief that he was being lied to. However, at the hearing, having seen ORC’s evidence in particular Mr Henkel’s statement, Mr Kim accepted that Ms Stewart was not involved in the decision not to offer him shifts and that she did not instruct her staff to lie to or mislead him.  45 Mr Kim has acknowledged the inaccuracy of his recollection of what was said. He accepts that Ms Stewart did not tell him that he had been banned indefinitely.46

[60] Further while Ms Stewart made a note of the conversation including what was said Mr Kim did not. What he wrote was a continuation of his accusations against Ms Stewart rather than a record of what was said. I prefer Ms Stewart’s version.

[61] I accept that she told Mr Kim that he had not been dismissed but that his lack of shifts was related to the incident with Ms Sariban and that she would escalate the matter.

[62] I am unable to find that Mr Kim had no choice but to resign because he had not been offered shifts for three weeks. It was not uncommon for that to happen.

[63] I do not accept Mr Kim’s submission that Ms Stewart, Ms Brown and Mr Nokes lied to him or were instructed to lie to him. While I accept that Mr Henkul’s description of Mr Kim’s comment to Ms Sariban as aggressive was not accurate I do not consider this is critical. Even had he not described it as aggressive he formed the view that the comment was inappropriate and so much was accepted by Mr Kim. 47 Unfortunately Mr Kim seemed to be of the view that if he apologised that was the end of the matter. An apology does not excuse inappropriate conduct.

[64] Mr Kim’s view that Ms Stewart, Ms Brown and Mr Nokes acted in bad faith is not supported by the evidence. His view that ORC would not provide him with a fair hearing was also without foundation.

[65] Further Mr Kim was told on 21 September 2015 that he had not been dismissed. I am unable to conclude that ORC’s failure to offer Mr Kim shifts was intended to cause him to resign and I am unable to find that, independent of its intention, the failure to offer him shifts pending the investigation was of such a nature that resignation was the probable result. Mr Kim had other options. He could have provided his password. He could have escalated his dispute to Ms Stewart’s supervisor or above. The Enterprise Agreement which regulated the allocation or work to casual employees, contained a dispute resolution procedure which Mr Kim could have activated. None of these alternatives would have prejudiced Mr Kim’s right to bring an unfair dismissal proceeding if ORC either failed to respond or continued to not offer him shifts.

[66] I therefore find that Mr Kim did not resign his employment because of conduct or a course of conduct engaged in by ORC.

[67] As I have found Mr Kim was not dismissed, his application for an unfair dismissal remedy must be dismissed and an order to that effect will issue with this decision.

DEPUTY PRESIDENT

Appearances:

A Kim on his own behalf.

A Maher on behalf of the Respondent.

Hearing details:

2016.

Melbourne:

29 January.

 1   Transcript PN 65

 2   Ibid PN 61- 63

 3   Exhibit R6 at [15]

 4   Transcript PN 98

 5   Exhibit A1 at Attachment B

 6   Ibid

 7   Exhibit R3 at [6]-[8]

 8   Ibid at [9]

 9   Exhibit A1 at [7]

 10   Ibid

 11   Transcript PN 213

 12   Exhibit R5 at [5]

 13   Exhibit R7 at [3]

 14   Ibid at [7]

 15   Ibid at [8]

 16   Exhibit R7 at [3]

 17   Exhibit R8

 18   Exhibit A1 at Attachment B

 19   Ibid at Attachment D

 20   Exhibit R4

 21   Exhibit R2 and transcript

 22   Exhibit A1 at Attachment G

 23   Ibid at Attachment H

 24   Exhibit R5 at Attachment 2

 25   Exhibit R6 at [20]

 26   Exhibit R6 at [20]-[22]

 27   Ibid at [28]

 28   Ibid at [30]

 29   Exhibit A1 at Attachment J

 30   Ibid at Attachment A

 31   Exhibit R4 [5]-[8]

 32   Exhibit A2 at [17]

 33   Ibid at [38]

 34   Transcript PN 912-914 and PN 968-969

 35   Ibid PN 936-946

 36   Ibid at [28]

 37   Transcript PN 991

 38   Ibid PN 995-996

 39   Ibid PN 1046

 40   Ibid PN 1056

 41   Submissions of the Respondent at [30]-[32]

 42   Exhibit A2 at [33]

 43   [2013] FWCFB 5279

 44   [2014] FWCFB 613

 45   Transcript PN 815-817

 46   Ibid PN 222-225

 47   Exhibit A1 at Attachment B

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