Anton Norkin v Australian Careers Business College

[2021] FWC 3702

[2021] FWC 3702

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Anton Norkin
v
Australian Careers Business College
(U2021/3084)

DEPUTY PRESIDENT BOYCE SYDNEY, 29 JUNE 2021

Application for an unfair dismissal remedy. Applicant resigned from his employment in writing. Whether Applicant forced to resign by his employer. Evidence does not support a finding of forced resignation. No “dismissal” within the meaning of s.386(1)(b) of the Fair Work Act 2009. Unfair dismissal application dismissed.

Introduction

[1] On 13 April 2021, Mr Anton Norkin (Applicant) filed an application for an unfair dismissal remedy with the Fair Work Commission (Commission), against his former employer, the Australian Careers Business College (Respondent).

[2] The Respondent asserts that it did not “dismiss” the Applicant from his employment, rather, the Applicant voluntarily resigned. The Applicant says that he was constructively dismissed on 23 March 2021, relying upon s.386(1)(b) of the Fair Work Act 2009 (Act). I conducted a hearing on 10 June 2021 to resolve the jurisdictional dispute between the parties (i.e. as to whether the Applicant was dismissed by the Respondent).

[3] Mr Norkin appeared for himself. Mr Nick Elisha, Director of Studies, appeared for the Respondent.

Legal principles

[4] A summary of the law, as it relevantly concerns the meaning of term “dismissal” under s.386 of the Fair Work Act 2009 (Act), is as follows:

“Dismissal

A person is dismissed pursuant to s.386 when:

a) employment with their employer has been terminated on the employer’s initiative (sub-s (1)(a)); or

b) they resigned from their employment, but were forced to do so because of conduct, or a course of conduct, engaged in by their employer (sub-s (1)(b)).

Background to constructive dismissal

The concept of forced resignation in s 386(1)(b) was not introduced until 2005. Prior to this, constructive dismissal was termination on the employer’s initiative.

As such, earlier cases refer to the test of constructive dismissal as termination at the initiative of the employer (s 386(1)(a) however these cases continue to be relied on in relation to both sub-ss (1)(a) and (b).

More recent decisions refer to the Explanatory Memorandum of the Fair Work Bill 2008 regarding the two limbs of dismissal in s 386(1):

‘[Section 386]…is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer,’ (see, e.g., Mohazab…).

…[Section] 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

Test for constructive dismissal – forced resignation

…

Forced resignation is when an employee had no choice but to resign. The onus is on the applicant to prove their resignation was forced by the employer.

The applicant must prove that the employer took action with the intent or objectively probable result of bringing the employment relationship to an end.

Case law

Mohazab v Dick Smith Electronics Pty Ltd remains the authority in relation to constructive dismissal, alongside O’Meara v Stanley Works Pty Ltd. In Mohazab, the IRCA considered the interpretation of termination at the initiative of the employee as:

c) “termination that is brought about by an employer and which is not agreed to by the employee”; and

d) “the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

Further, the Court said:

“…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.”

In Rheinberger v Huxley Marketing Pty Ltd the IRCA relied on the above passage in Mohazab and said:

“…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 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.”

In Pawel v Advanced Precast Pty Ltd the IRC said at [15] that there are circumstances in addition to whether the employer’s actions resulted in the employee’s termination to be considered:

“…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… We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.”

In ABB Engineering Construction Pty Ltd v Doumit the IRC noted that the line distinguishing conduct that leaves an employee no real choice but to resign is narrow but must be “closely drawn and rigorously observed.” Where an employer’s conduct is “a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal,” it may be considered termination at the initiative of the employer. Conversely, 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 O’Meara v Stanley Works Pty Ltd the IRC reviewed the abovementioned authorities and concluded at [23]:

“…[The authorities] 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.” …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.”

In Bruce v Fingal Glen Pty Ltd (in Liq) an employee resigned due to her employer repeatedly paying her salary late and failing to pay superannuation. The FWC adopted the summary of principles in O’Meara in respect of determining forced resignation pursuant to s 386(1)(b). Specifically, the FWC interpreted Rheinberger as qualifying Mohazab as follows:

“…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… 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.”

The FWC found that whilst it was possible and foreseeable (and in many respects a reasonable response) that the employee may have resigned as a result of the employer’s conduct, it was not the objectively probable result, and there were other avenues open to the employee.” 1

Evidence before the Commission

[5] On the 23 March 2021 at 10.51am, the Applicant sent the following email to Mr Elisha:

“Dear Nick,

Due to organisational changes - appointment of Roshan Ali as legal course supervisor and her bureaucratic approach to the role, I find impossible for myself to continue employment relations with ACBC.

I will continue to train students that I have until replaced.”

[6] The Applicant says that this email was sent after he had engaged in a heated discussion with Ms Roshan Ali, Trainer and Line Supervisor Legal Faculty (Quality), for the Respondent. The Applicant does not dispute that his email was a resignation, however, he says that it was a forced resignation flowing from the conduct of Ms Ali, and his interaction with her on 23 March 2021.

[7] On 23 March 2021 at 11.41am, Mr Elisha sent a response email to the Applicant, which reads:

“Hi Anton,

Thank you for your email.

I am sorry to hear this.

Roshan is the co-ordinator of the Legal course and is responsible for all trainers in the course. Any instructions the trainers receive from Roshan are based on instructions that I have given her that need to be addressed.

Having detailed feedback to the students is a very important part of the trainer's role, so that the student can understand what specifically they did wrong.  I sent all trainer a document on the expected detail in providing feedback. 

Can I please ask, what are the specific points that she has made, which you have a problem with?  Your feedback would be appreciated.”

[8] The foregoing email highlights that Mr Elisha is seeking feedback and clarification from the Applicant as to what had occurred to prompt his resignation.  As Mr Elisha stated in his evidence, and I accept, the Applicant’s email of 10.51am that day is the first time that he became aware that the Applicant had any issues with Ms Ali.

[9] On 23 March 2021 at 12.12pm the Applicant responded to Mr Elisha as follows:

“Hi Nick,

The problem is the level of precision of instructions, that might be appropriate for students, but not for peer trainers.  And some instructions are inconsistent with official documents. 

In other words, personal wishes are trying to be imposed as imperative.”

[10] This email highlights that the Applicant effectively doubled down on his decision to resign.

[11] Turning to the case law, I note that the Applicant relies upon s.386(1)(b) of the Act. He asserts that the directions given to him by Ms Ali were unlawful and/or unreasonable, thus giving him no choice but to resign (being a forced resignation). The Applicant says that the directions given to him were unreasonable primarily because they were inconsistent with or in breach of the Respondent’s policies and procedures.

[12] The first matter that the Applicant raises is that he was directed to transfer student emails and related data from the Respondent’s mail server to another database (which I understand to be Cloud based). Mr Elisha says that there were only five students for which the Applicant needed to do this task, and that it would take around two minutes per student to complete.  The Applicant says that there were in fact ten students and says that each student would take more than two minutes to complete. The summary of the evidence is that the data transfer task would not involve a significant amount of time or effort to perform. Mr Elisha says that transferring data from time to time to secure it on the Cloud was part of the Applicant’s job, especially as data transfers ensured that the Respondent was able to meet its data compliance requirements as a College.

[13] The second matter that the Applicant raises is a direction by Ms Ali for him to make comments on student results that contain a “satisfactory” assessment result. The Applicant says that he was only previously required to make comments on student assessments where the student failed an assessment. In other words, accordingly to the Applicant, if a student receives a satisfactory result in an assessment there is no need for comment or feedback on that assessment (as the student has passed the assessment). The Applicant also says that his understanding of the policies and procedures of the Respondent are that it is only where a student receives an unsatisfactory grading that comment would need to be provided. Contrary to this, Mr Elisha says that notwithstanding the grade provided to a student, there should always be some commentary provided in relation to a result.  Again, Mr Elisha says that this is part of the Respondent’s compliance requirements as a College.

Consideration

[14] The policies and procedures that the Applicant relies upon to say that the directions given to him by Ms Ali were unlawful and/or unreasonable were not tendered by the Applicant into evidence before the Commission. In my view, absent such evidence, the directions given to the Applicant are not objectively unlawful and/or unreasonable. They certainly do not support the Applicant’s claim that a requirement to comply with such directions gives rise to a circumstance of forced resignation.

[15] In this case, the facts are that the Applicant appears to have been disgruntled with the directions given to him by Ms Ali. However, prior to resigning, he did not raise his concerns with Mr Elisha. I also note that the Educational Services (Post-Secondary Education) Award 2020 (Award) that covered and applied to the Applicant provides an internal and external disputes procedure that he did not avail himself of (at all) prior to resigning. If, after discussions with Mr Elisha, the Applicant’s issues and concerns with Ms Ali (about his workplace classification and the duties he was being directed to perform) were unable to be resolved, the dispute could have been referred to the Commission for conciliation and/or arbitration. The Applicant did not avail himself of this process.

[16] It is also relevant to note that the Applicant sought to withdraw his resignation via email to Mr Elisha on 1 April 2021. That email reads:

“First of all, I wish to express my gratitude for the opportunity given to me earlier to work in the College. It was my pleasure to perform my duties as a teacher in your organisation.

I understand that the owner of the school can structure (subject to reasonable notice about changes) and run their business as they wish, but as an employee I do not have to follow unreasonable directions (manual copying from one college database mail server, cloud assess, clockify to other - Axcelerate, or to provide extended reasons for assessments that I had passed).

I am writing to confirm that my email about my inability to continue employment was caused by repetitive unreasonable directions of Roshan Alli, so this situation is covered by provisions of unfair dismissal known as constructive dismissal.

I am asking you to recover my position and direct the inferior manager to observe the proper style of exercising of their managerial functions.

It will be highly appreciated if you get back to me with your decision by 9th of April 2021.”

[17] This email was sent some eight days after the Applicant resigned. It is not an email that was sent in close proximity to the Applicant’s resignation. Further, the Applicant seeks to withdraw his resignation, on conditions. One condition is that his manager, Ms Ali, be directed to observe “the proper style of exercising [her] managerial function”. The email also refers to Ms Ali as an “inferior manager”.

[18] On 13 April 2021 Mr Elisha wrote back to the Applicant advising him that he considered the Applicant to have resigned voluntarily, and that there were no unreasonable directions given to him by Ms Ali. Mr Elisha also states in his email “I take exception to you calling [Ms Ali] who is a highly respected solicitor and trainer, an inferior manager. She is a very competent manager who gave reasonable directions that you were not happy to follow, and as such you've tendered your resignation. There was no unfair dismissal on our part. The decision came from you and your resignation was accepted. I thank you for your service and I wish you well into the future.”

[19] The Applicant’s resignation, via email on 23 March 2021, is clear and unambiguous. On the evidence before me, it was not unreasonable for Mr Elisha to maintain that the Applicant had resigned voluntarily, and that the Respondent had already accepted such resignation. Further, it was not unreasonable for Mr Elisha to reject the Applicant’s request to have his resignation withdraw based upon unilateral conditions set by the Applicant.

[20] In summary, what is apparent from the evidence is that, firstly, the Applicant did not raise any concerns or issues with Mr Elisha prior to making his decision to resign from his employment. And secondly, the Applicant did not follow the disputes procedure as required under the Award before making a determination as to whether the directions made to him were unreasonable or unlawful. The fact that a direction may be inconsistent with a policy or procedure does not necessarily make it unreasonable or unlawful.

[21] The other aspect of this matter is that the Applicant resigned via email. Whilst the Applicant, at least to some extent, asserts that his resignation was done in the heat of the moment, he would have had to pause and take the time to draft his resignation email (as compared to, for example, resigning verbally during a heated exchange). Mr Elisha did seek to clarify the reasons for the Applicant’s resignation in an attempt to shed light on what the issues of concern were, in an attempt to address or resolve such concerns. However, upon receiving Mr Elisha’s email, the Applicant responded by confirming his decision to resign.

[22] Cases in which an applicant resigns in the heat of the moment and then seeks to retract that resignation shortly thereafter have been considered by decisions of the Commission to generally involve a short compass of time. In this case, the Applicant took some eight days to attempt to withdraw his resignation, but such attempted withdrawal came with conditions that the Respondent was not required to accept. Even putting aside the conditions set by the Applicant, an employer is under no obligation to agree to an employee’s request to withdraw their resignation after it has been accepted.

[23] Having regard to the evidence and the submissions of the parties, I find that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act. Pursuant to this finding, the Commission has no further jurisdiction to deal with the Applicant's unfair dismissal claim. An Order [PR730637] has been issued dismissing the application. 2

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR731095>

 1   Jayamaha v Amelie Housing[2021] FWC 2848.

 2   This decision was originally made on an ex-tempore basis on transcript. In making my decision on transcript, I reserved the right (at the time the ex-tempore decision was handed down) to add to or amend the ex-tempore decision when publishing these reasons for decision, and I have done so accordingly.