Bhailal Chandulal Shah v Gastech Australia Pty Ltd

[2025] FWC 271

[2025] FWC 271

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Bhailal Chandulal Shah
v

Gastech Australia Pty Ltd

(U2024/8423)

DEPUTY PRESIDENT BEAUMONT PERTH, 30 JANUARY 2025

Application for an unfair dismissal remedy

1. Merits of the application and outcome

1. Mr Bhailal Chandulal Shah (the Applicant) made an unfair dismissal application under s 394 of the Fair Work Act 2009 (Cth) (the Act) on the basis that he was unfairly dismissed within the meaning of s 385 of the Act. Gastech Australia Pty Ltd (the Respondent) disputed the assertion and by its response, raised a jurisdictional objection that the Applicant was not ‘dismissed’ as that term is understood by reference to ss 386(1)(a) or (b) of the Act.

1. Fundamentally, the Respondent’s case rests on its argument that in a meeting on 28 June 2024, the Applicant notified Mark James Wild (Wild), Chief Executive Officer of the Respondent, that he would resign from his position and the Respondent accepted the Applicant’s resignation as it was entitled to do. 

1. The Applicant’s purported resignation was provided in the context of a discussion between the Applicant and Wild about the Respondent’s concerns that the Applicant’s son, Nikunj Shah (Shah), had obtained employment with a competitor of the Respondent.  The Respondent was disquieted about whether the Applicant would maintain confidentiality about its confidential information in circumstances where the Applicant lived with Shah and, from time to time, worked from home.  According to the Respondent, Wild approached the Applicant to discuss that the confidential information was to be maintained securely.  It was during this discussion on the morning of 28 June 2024 that the Applicant is said to have resigned and did so completely unprompted. 

1. The Respondent asserted that during the discussion with the Applicant about his resignation, Wild broached the topic of how to make the Applicant’s termination payment more tax effective and informed the Applicant it could be taxed as a redundancy and that an additional ex gratia payment could be made.  As none of these matters had been finalised on 28 June 2024, it was not until 1 July 2024 that a deed of release (Deed) was sent to the Applicant. 

1. The Applicant did not sign the Deed and the Respondent, having formed the view that the Applicant was no longer happy to resign, continued to pay him and required him to return to work.  The Respondent submitted that the Applicant refused to return to work, and therefore the Respondent terminated his employment on 23 July 2024. 

1. The Respondent has proffered an alternative position, namely, if the Commission finds that the Applicant was dismissed (which the Respondent does not concede), then the Respondent accepts that there was no valid reason for dismissal.[1]  The Respondent therefore acknowledges that its case, as does the Applicant’s, turns on the critical factual question of what occurred on 28 June 2024.

1. For his part, the Applicant asserted that Wild advised him that there was a commercial risk in keeping him employed because he was domiciled in the same house as Shah who had gone to work for a competitor, that the Applicant would need to look for another job, and he had to leave the Respondent’s premises by 1:00PM.  The Applicant contends that Wild advised him that he was not being ‘sacked’ and that it was a ‘mutual understanding’.  The Applicant adamantly refutes that the separation was mutual, and whilst Wild offered him a ‘golden handshake,’ he did not know what that meant and had to ask. 

1. The Applicant submitted that he had no choice but to leave, and notes that he never said to Wild that he was resigning or that he agreed to leave.  The Applicant states that he reiterated to Wild that it was not a mutual understanding.  

1. It is noteworthy that the process of fact-finding in this case has been challenging given the disparate accounts provided by witnesses of the Respondent and the Applicant in respect of the meeting between the Applicant and Wild that took place on 28 June 2024. The challenge has been compounded by findings in respect of the credibility of the Applicant and Wild, both of whom presented as unimpressive witnesses. It follows, I am unpersuaded by the version of events as presented by both the Applicant and the Respondent. In short, I am not persuaded by the Applicant’s account that his employment was terminated on 28 June 2024 (under s 386(1)(a) or (b) of the Act), and I am not persuaded by the Respondent’s argument that the Applicant voluntarily resigned on 28 June 2024.

1. To conclude, I have found that the Applicant’s employment terminated at the initiative of the Respondent on 23 July 2024.  It follows that, at the time the unfair dismissal application was made, the Applicant had not been dismissed.  However, I am content to waive the irregularity regarding the premature lodgement of the application, and whilst the Applicant was dismissed, he was not dismissed unfairly.  This is the case notwithstanding the Respondent’s submission in respect of ‘valid reason’ at paragraph [6] of this decision. 

1. My detailed reasons follow.  

1. Background

1. The Respondent called two witnesses to give evidence.  The first, Mark James Wild (Wild) is the Chief Executive Officer of the Respondent.  The second, Adrian Burn (Burn), is the People & Integrity Business Partner of the Respondent.  In support of his case, the Applicant relied upon his own evidence, having called no other witnesses. 

2.1      The Applicant’s account

1. The Applicant gave evidence that he is 69 years old and originated from India.  Historically, the Applicant has spoken Gujarati for the most part.[2] The Applicant stated that he learnt English after he left India.  The Applicant moved to Australia on 22 July 1999, and at that time gained employment with another employer.

1. The Applicant said he was employed by the Respondent from 15 October 2007 until 28 June 2024, when he was dismissed by Wild. 

1. The Applicant initially commenced in the business in the position of bookkeeper but five years into his role, his position changed to accounts manager.  The Applicant provided a detailed list of the duties attributable to that role, which included the following:

a)   managing payments to local and overseas suppliers;

b)   debt collection for maintaining cash flow;

c)   maintaining and recording all financial transactions;

d)   maintaining the general ledger;

e)   reconciling sub accounts and various bank accounts;

f)   managing accounts payable and receivable functions;

g)   payroll processing for two entities (Gastech and Copas) including preparing and lodging monthly payroll tax, lodging Single Touch Payroll reports,

processing employee superannuation, end-of-year payroll reconciliation, staff payment summaries and maintaining leave balances;

h)   preparing and lodging Business Activity Statements;

i)   assisting the team with budgeting and forecasting; and

j)   assisting the external accountant with compliance and tax preparation.[3]

1. In addition, the Applicant managed the accounts for other legal entities within Wild’s family portfolio including: (a) Copas; (b) Patrici Management Pty Ltd (Patrici Management); (c) Patrici Superannuation Fund (Patrici Super); and (d) Laravale Pty Ltd (Laravale).  In respect of these other accounts, the Applicant noted that he would often work on the weekends and public holidays to manage them without asking for any overtime or other compensation.[4]  The Applicant said that when he worked on the weekends he would work from the Respondent’s office because he did not have a personal computer at home on which to work.[5]

1. The Applicant stated he had a perfect work record and never had any performance or disciplinary issues whilst working for the Respondent.  He noted that he was a very loyal and hardworking employee who rarely took sick leave.  Consequently, at the time his employment ended, the Applicant was said to have a sick leave balance of 878 hours.

1. Insofar as the Applicant was invested in his job, he gave evidence that he saw the workplace as his family as he had come to Australia as a migrant, and did not have any childhood or school friends and connections here.  It followed that he felt very close to everyone in the workplace and saw Wild as his brother.  The Applicant said that his sense of worth and social connections were connected to his job at the Respondent.

1. The Applicant explained that since 14 August 2021 he has lived with his wife and his son, Shah, noting that Shah also worked for the Respondent from September 2017 until he resigned on about 26 June 2024. 

1. The Applicant reported that Shah resigned because he had obtained work with Encore Monitoring (Encore), a competitor of the Respondent.

1. The Applicant said that on 28 June 2024 at 8:20AM he presented to work as normal.  The Applicant noted he had an appointment booked at 9:30AM with an individual named ‘KC’ from ‘The Access Group’, the Respondent’s payroll software provider, to process and roll over the Respondent’s end-of-year payroll.

1. According to the Applicant, at around 9:30AM, Wild came into his office and asked him to go into Wild’s office.[6]  The Applicant stated that he did not have prior warning of the meeting and did not know what the meeting was about.[7]  The Applicant said that he told Jonny (a co-worker referred also as Huynh) that if KC called for him, he would be a couple of minutes.

1. The Applicant said that he went into Wild’s office alone and Wild asked him to close the door.[8]  The following is an abridged version of the Applicant’s evidence regarding the discussion and events that unfolded at the meeting.

a)   Wild said to me, “what can we do?” I asked him, “about what?” and he said, “about Shah joining Encore”.

b)   I said “yeah, what can we do?”

c)   Wild asked me if I had talked to Shah. I confirmed I had talked to Shah twice and tried to convince him not to leave the Respondent because he had been with the Respondent for six years.

d)   Wild said that Shah was doing a good job and before Shah decided to resign and join Encore, he had been thinking of putting Shah in the sales department, giving him a vehicle and a mobile phone.

e)   I told Wild it was too late, and that Shah had already resigned. Wild said that Encore is our competitor and that they are “trying to finish us”. He said he did not mind Shah joining a different company such as Drager, but not Encore.

f)   Wild then told me that because Shah was now gone and I live in the same house as him, there is a "commercial risk". He used the term "commercial risk" several times in our conversation. I asked him what the commercial risk was and advised him that I did not think there was a risk.  I also said to Wild that he knew me and that I never talked about the company or spoke of anything at home.

g)   Wild said to me he was sorry, and that because I stay in the same house as Shah, he could not keep me. Wild expressed to me that there would definitely be a conversation between Shah and me, and I said I never talked to Shah about work.

h)   Wild said I would have to look for another job and that I would have to leave the premises by 1:00PM. I again said to Wild, you know me very well. I am very hardworking and trustworthy, I am 69 years old, why are you punishing me?

i)   I was very upset and was begging for my job. I tried to convince Wild to reconsider his decision and told him that I wanted to continue doing my job as usual. I explained that this was shocking to me, since I had worked for the Respondent for 17 years. I asked Wild to let me stay with the Respondent. I explained to Wild that if I do not work then how would I manage my day-to-day expenses and my wife's medical bills. I asked Wild why I should go somewhere else.

j)   Wild responded saying that I am like his brother, but that he needed to make this decision, and I had to leave at 1:00PM. He was crying. He told me not to worry about finding other work, and that if I wanted a reference from him, he would provide one.[9]

1. The Applicant said that he asked Wild whether he was being sacked, which Wild denied, clarifying, that it was a ‘mutual understanding’.[10]  The Applicant said he asked Wild what was mutual (about the separation), as he wanted to work, and in his view, Wild was sacking him.[11] 

1. The Applicant gave evidence that Wild advised him it was mutual because he would receive a ‘golden handshake’.[12]  The Applicant said he asked Wild what a ‘golden handshake’ was because he had never heard the term before, and Wild responded that he would give the Applicant $10,000.00.[13]  The Applicant said he informed Wild that he needed to get legal advice because he did not understand as there was no mutual understanding and Wild was forcing him to leave.[14]  At that point, according to the Applicant, Wild said that he would not give the Applicant the ‘golden handshake’, if he obtained legal advice.[15]

1. The Applicant said that after the meeting with Wild, he told Huynh that Wild was making him leave by 1:00PM.[16]  The Applicant gave evidence that Wild called Huynh into his office and when Huynh returned to the Applicant’s office, Huynh advised the Applicant that he needed the Applicant’s passwords for everything. 

1. By 1:00PM the Applicant proceeded to leave.  The Applicant said that he went to Burn’s office and told him that he was leaving because Wild had told him to leave by 1:00PM, and Burn responded to the effect of, ‘oh no’.  The Applicant said he asked Burn to email any paperwork he needed to sign, to which Burn replied, ‘okay’.[17] 

1. On 1 July 2024, the Applicant received an email with a ‘deed of mutual termination’ (the Deed) attached,[18] and on 3 July 2024, the Applicant’s lawyers sent an email to Wild, with a letter attached in response to the Deed.[19]

1. On 17 July 2024, the Applicant received a letter from the Respondent claiming that the Applicant had resigned from his employment but then retracted it.  The letter directed the Applicant to return to work at the Respondent the next day.[20]

1. Letters were exchanged between the Applicant’s lawyer and the lawyer for the Respondent over the course of 17 July 2024 and 23 July 2024.  Ultimately, on 23 July 2024, the Applicant received a letter from the Respondent informing him that the Respondent was terminating his employment for failure to follow a reasonable and lawful direction. 

1. Whilst not included in the Applicant’s first witness statement, the Applicant gave evidence in his second witness statement that on 19 May 2023, he had sent a resignation letter to the Respondent.[21]  The Applicant said the reason why he sent the resignation letter to Mr Jim Filov (Filov) was because at that time he was experiencing difficulty handling the Respondent’s accounts by himself and it was impacting too much upon his health.[22]

1. The Applicant further explained that he had asked Wild several times to consider hiring someone to assist him but Wild did not respond to his requests.  As nothing was being done, the Applicant said he considered there was no alternative but to resign.[23]

1. The Applicant gave evidence that after Wild received his resignation letter, Wild came to see the Applicant the next day informing the Applicant that he could not accept the Applicant’s resignation.  The Applicant said that he told Wild that it was difficult for him to work under extreme pressure and stress, and Wild agreed to hire someone.  In August 2023, Huynh was hired to assist the Applicant with the Respondent’s accounts.

1. In cross examination the Applicant was asked about his resignation letter.  The Applicant responded that it was not his ‘intention to resign, only just put it in writing. So, then Mark can take action.’[24]  When the Applicant was subsequently asked, ‘[s]o this letter you didn’t intend to resign.  Is that right?’ the Applicant responded – ‘[i]t was not in my mind to resign, but I just put it in writing so then Mark can take the action, and they can employ someone, even part time for my help’.[25]

1. The Applicant was, in addition, questioned in cross examination about an email he had sent on 1 June 2023 to Filov, Wild and Burn.  In the email the Applicant advised Filov (General Manager), Wild and Burn that he had decided to change his full-time position to part-time, effective 1 January 2024.[26]  The email continued:

I’ve been with Gastech Australia Pty Ltd for 16 years, and I’ve truly enjoyed my time here.  I’ve learned a lot and made some great friends.  However, I feel it’s time for me to step back and enjoy some time for myself.
I’m happy to help with the transition of my work to another employee.  Please let me know what you need from me…[27]

1. In giving his oral evidence, the Applicant said that he did not change his position himself (meaning his move to part-time work).[28]  The Applicant explained that there was a meeting with Wild, Filov and Burn, in which they asked the Applicant about his succession plan.[29]  The Applicant said that he thought that a ‘succession plan’ was a retirement plan, so he responded to the three that he would stay in his job, and from January he would reduce one day a week and from June he would reduce two days week.[30]  The Applicant said that Filov asked that he put that in writing, which he did.[31]

1. In cross examination, the Applicant appears to have been saying that he considered he was required to put into writing his ‘succession plan’ otherwise he would have to leave his job,[32] or that by putting his ‘succession plan’ in writing he would be saving his job.[33]

2.2      Wild’s account

1. Wild gave evidence that the Respondent formed part of a family business established in 1999.  The company is involved in the manufacture and distribution of gas and flame detection systems.  It provides safety solutions to resource companies, defence departments, and infrastructure services.

1. The work performed by the Respondent includes: (a) the sale and installation of gas and flame detection systems; (b) maintenance and calibration of safety systems; and (c) providing training in relation to the safe use of gas detection equipment.

1. The Respondent employs 52 employees who perform roles across senior management, project engineering, administration, research and development, and sales and service. 

1. Wild said that the Applicant commenced working for the Respondent on 15 October 2007 in the position of bookkeeper and that whilst his position title changed to accounts manager during the course of his employment, the Applicant’s role did not change.[34]

1. The Applicant was the only employee within the Respondent’s Accounts Department until Huynh commenced in August 2023.  The Applicant reported to Filov.

1. In his role, the Applicant was responsible for general accounting duties, payroll, insurance renewals, debt collection, some budgeting and forecasting, assisting the external accountant with compliance and tax preparation, and bookkeeping for approximately four related companies.[35]

1. Wild said that in May 2023, Filov made him aware that the Applicant had submitted his resignation.  However, Wild understood from Filov that the Applicant’s resignation was withdrawn following a discussion with Burn and Filov, and that as part of that discussion, it was suggested by the Applicant that he would reduce his working days to three days per week from 1 July 2024, with a view to retiring by the end of June 2025.[36]

1. Wild said that in reliance on the Applicant wanting to reduce his working hours and cease work at the end of June 2025, the Respondent hired a junior accounting employee to work with the Applicant.  That employee was to be trained by the Applicant and would slowly take over the Applicant’s tasks, allowing the Applicant to transition gradually out of the business and into retirement whilst ensuring his valuable company knowledge would be captured.  This employee, Huynh commenced employment with the Respondent on about 21 August 2023.  Upon Huynh’s commencement, the Applicant was responsible for training him.

1. Wild stated that on or around 25 June 2024 he became aware that Shah had accepted a position with Encore as a Project Engineer.[37]

1. Wild stated that Shah had worked for the Respondent from 4 September 2017 in the role of Project Manager under Manager, Grenvil Fletcher (Fletcher).  Shah and the Applicant were domiciled in the same house.[38]

1. According to Wild, Encore is a company that provides industrial monitoring services with a focus on gas detection and is a direct and major competitor of Gastech.  It operates in the same industry and shares some of the same suppliers.[39]

1. Wild gave evidence that Encore was originally a distributor of the Respondent, and the Respondent trained Encore in relation to the Respondent’s service offering. Encore then obtained access to the same product supply and started competing against the Respondent. According to Wild, Encore had copied everything the Respondent did, all the way down to the Respondent’s staff uniform and vehicle setup and had even secured a number of customers from the Respondent.  The majority of Encore’s staff were said to be ex-employees of the Respondent.[40]

1. The Respondent has various clients, including the Australian Defence Force (ADF). Encore is said to also act for many of the same clients of the Respondent, including the ADF. As a contractor to the ADF, the Respondent receives sensitive information that the Applicant was privy to. The Applicant was also privy to the Respondent’s commercially sensitive information including wage rates and client pricing.[41]

1. Wild said that from time to time the Applicant worked from home, using his computer or the Respondent supplied iPad to log in.  According to Wild, the Applicant had his own VPN log in and had the highest level of access to NetSuite, the company’s customer relationship management (CRM) system, and access to all the NAB accounts for Copas, Patrici Management and Patrici Superannuation (the associated entities).

1. Wild continued that it was in this context and given he had noted that the Applicant had a habit of writing down and leaving his passwords in view next to his computer at work, he felt he was required to have a discussion with the Applicant about secure work practices moving forward.  In particular, Wild noted that the Applicant had a 16-page document (some double-sided pages) located in the paper tray beside his computer, which contained instructions on how to log into the payroll attaché and NAB bank accounts.

1. On 28 June 2024 at 9:01AM, Wild held a discussion with the Applicant in his office with the door closed.  Wild said that he informed the Applicant to the effect, ‘with Nik going to work with Encore, and you living in Nik’s house we need to work out how we manage confidentiality….’.

1. Wild said that at approximately 9.03AM and before Wild could finish his sentence, the Applicant interrupted and said words to the effect of, ‘No problems Mark, I will just resign.’  Wild said that he did make further comments in relation to managing security and confidentiality, but at least two more times the Applicant responded to the effect ‘it’s ok Mark, I will resign’, to which Wild said that he then responded to the effect ‘if you wish to resign BC I will accept that as it removes all the risks’ and ‘if that is what you want BC I will accept that’.[42]

1. It was Wild’s evidence that following the Applicant’s resignation, they chatted on how he would like his resignation to occur.  Wild stated that the Applicant’s body language and posture were normal, and he recalled that the Applicant stated many times words to the effect ‘it’s not a problem Mark’.[43]

1. Wild said that during their conversation, he offered to pay the Applicant out his entitlements in whichever way gave him the greatest financial benefit.  As such, he offered the Applicant the choice to classify his resignation as either a redundancy or retirement.  Wild said that the Applicant responded to the effect ‘it’s ok Mark you choose’.

1. Wild noted that during the conversation the Applicant asked if Wild would give him a reference, which Wild agreed to provide noting it would be a glowing personal reference.

1. Wild said he asked the Applicant if he would like a ‘going away party’ which he declined, and then asked how the Applicant would like to depart the Respondent, to which the Applicant stated he would like to finish up that day and leave quietly at 4.00PM.  Whilst not convenient for Wild, because it was right at the end of the financial year and was a busy time, Wild consented to the request.

1. However, Wild said he asked the Applicant if he had enough time to teach Huynh everything he did not know, to which the Applicant responded in words to the effect ‘I have enough time by the end of the day’.

1. Wild noted he asked the Applicant to see Burn to formalise his resignation and complete his exit interview, which the Applicant said he would.  This, said Wild, was standard practice once an employee resigns.

1. Wild said the Applicant left his office at 9:33AM and returned directly to the accounts office, located directly across the hallway from Wild’s office.  On leaving Wild’s office, the Applicant did not appear to be emotional or showing physical signs of being upset such as crying, being close to tears, or having difficulty talking, according to Wild.

1. At 12:56PM, the Applicant returned from his lunch break to the accounts office where Wild said he was talking to Huynh.[44]  The Applicant advised Wild that he had taught Huynh everything which Huynh had not known how to do and that he would like to leave at 1.00PM instead of 4.00PM, to which Wild agreed.[45] 

1. Wild described that he walked with the Applicant across the hall into his office where they said their goodbyes, with the Applicant hugging him.

1. Wild said that as the Applicant was about to walk out of his office, he shook Wild’s hand and asked, whilst holding the handshake, if Wild could give him some extra money ‘in kind’ in recognition of his length of service.  Wild explained that he informed the Applicant he would confirm a monetary payment to him once he had spoken with Human Resources.  The Applicant then left Wild’s office and Wild said that he was aware from his review of CCTV footage captured that day that the Applicant walked straight out of the building and into the carpark.  Wild clarified that on leaving his office, the Applicant did not appear to be emotional and was not showing physical signs of being upset such as crying, being close to tears, or having difficulty talking.

1. Having spoken to Burn, Wild said it was evident that a redundancy payment would be the best financial benefit for the Applicant.  Wild said he decided to add $10,000.00 extra as an ex-gratia payment in recognition of the Applicant’s 17 years of employment with the Respondent.[46]

1. Wild asked Burn to prepare a deed of mutual separation containing the additional payments he proposed to pay the Applicant, and on 1 July 2024, Wild emailed the Applicant a copy of the Deed that contained the terms discussed on 28 June 2024.[47] 

1. Wild said that later in the day on 28 June 2024, he made a file note in which he summarised the conversations he had held with the Applicant that day and he sent a copy to Burn.[48]  That file note detailed, amongst other matters, that the Applicant had verbally handed in his resignation which Wild had accepted, that Wild had offered to give the Applicant the greatest financial gain of any of the options and write it up in a way so that it did not impact negatively on his future employment, that the Applicant had asked for an extra payment for his long service leave – which Wild ‘included in the mutual termination’ as he was wanting to depart on good terms.[49] 

1. The email dated 1 July 2024 stated:

Good morning BC,

I have included the deed of mutual termination.

Please go over the agreement, and as soon as we both sign the agreement we can arrange the final payment to be paid out.
Regards

Mark Wild.

1. The Deed was titled, ‘Deed of Mutual Employment Termination Agreement’.[50]  The recitals of the Deed detailed the following:

Both parties have mutually agreed to terminate the Employment Agreement on the terms and conditions set forth in this Agreement.[51]

1. On 3 July 2024, Wild received correspondence from Jackson McDonald, the Applicant’s legal representative.  The correspondence set out that the Applicant had not resigned, and that the Respondent had terminated his employment. Wild stated that this was the first time he became aware that the Applicant was saying he had not resigned on 28 June 2024.

1. On 10 July 2024, Wild received further without prejudice correspondence from Jackson

McDonald being a letter of demand seeking payments, which Wild said the Respondent had already offered to pay the Applicant, and in addition, a payout of the Applicant’s unused sick leave and the continuation of wages/payment until a mutually agreed deed of release was signed.[52]

1. On 17 July 2024, Wild sent a letter to the Applicant directing him to return to work as it appeared that the Applicant had not intended to resign and because Wild had no intention of terminating the Applicant’s employment on 28 June 2024.[53]  At this stage, Wild considered the Applicant remained employed with the Respondent.

2.3      Burn’s account

1. Burn gave evidence that the Applicant was employed in the role of accounts manager from 15 October 2007 until his employment was terminated on 23 July 2024.[54]

1. Since 2019, the Applicant has reported to Filov and prior to that date he reported directly to Wild.[55]

1. According to Burn, the Applicant resigned from his role on 19 May 2023, sending a letter to both him and Filov, copied to Wild.  Burn cannot recall any events that led to the Applicant’s resignation or what transpired after, but he believed that Filov and Wild had discussions with the Applicant about not following through with his resignation. 

1. By email dated 19 May 2023, the Applicant sent a letter to Filov in the following terms:[56]

Dear Jim,

Re: Resignation Letter

Please accept this letter as my formal resignation from Gastech Australia Pty Ltd effective we will decide when you will come back.  The associations I’ve made during my employment here will be truly memorable for years to come.  I spoke to Mark and my family that I will leave Gastech when I retire but everything is not in our hands, when time finishes someone must go.  Man proposes, God disposes.  Never ever think this day will come with me.

I hope a few months’ notice is sufficient for you to find a replacement for me.  If I can help train my replacement or tie up any loose ends, please let me know.

….

1. Burn stated that on 1 June 2023, the Applicant tendered via email a retirement plan.[57]  The email stated the following:

Hi Jim/Mark/Adrian

I hope this email finds you well.
As we discussed, I'm writing to let you know that I've decided to change my full-time position to part-time status, effective January 1, 2024. I'll be working four days per week until July 1, 2024, and then three days per week thereafter.
I've been with Gastech Australia Pty Ltd for 16 years, and I've truly enjoyed my
time here. I've learned a lot and made some great friends. However, I feel it's
time for me to step back and enjoy some time for myself.
I'm happy to help with the transition of my work to another employee. Please let
me know what you need from me.[58]

1. Burn stated that given the Applicant’s impending retirement, the Respondent hired a finance officer who commenced employment with the Respondent on 21 August 2023.[59]

1. The Applicant’s son, Shah, commenced employment with the Respondent on 4 September 2017 as an assistant project engineer.  It was uncontroversial that the two lived together.  In the Respondent business, Shah was responsible for tendering for large scale projects, mainly oil and gas, and bespoke gas safety products.[60]

1. On 24 June 2024, Shah told Fletcher that he had been approached by Encore and offered a position.[61]  Burn said that Encore is a direct competitor of the Respondent and the concern held by the Respondent was that Shah had intimate knowledge and working relationships with the Respondent’s customers and upcoming major projects, that could be transferred to Encore.[62]

1. Given the commercial risk posed by Shah’s decision, Filov asked Shah to complete his handover that day and then leave, meaning that Shah’s last day of employment was 26 June 2024.[63]

1. On or around 27 June 2024, Burn, Filov and Wild spoke about the commercial risk with the Applicant and his relaxed security practices now that Shah was working for a competitor.[64]  Burn stated that the Applicant’s working from home set up allowed him and potentially Shah, full access to the Respondent’s entire system, including Netsuite, which was the Respondent’s platform for quotations, invoices, product pricing, revenue, procurement, and essentially all of the Respondent’s confidential information on clients and projects.[65]

1. Burn said that he became aware that the Respondent had resigned, again, on 28 June 2024, when Wild came into his office and told him that he had spoken to the Applicant about what the Respondent was going to do about him, Shah and Encore.[66]  Wild told Burn that the Applicant had said not to worry as he would resign.  Burn noted that Wild asked him what a redundancy package would look like for the Applicant and he informed him that the Applicant was not redundant because he had resigned.[67]  Notwithstanding, Wild stated that he wanted to give the Applicant something for all the years with the company and Burn said that the Applicant’s notice period was five weeks and the Respondent could make an additional payment the equivalent of a redundancy payment (12 weeks).[68] 

1. Burn stated that later in the day on 28 June 2024, around 12:50PM, the Applicant approached him and asked what documents he needed to sign and added to the effect that Wild had asked him to leave by 1:00PM.[69]  Burn further stated he was shocked about what the Applicant was informing him as he had never seen Wild ask anyone else to leave early.[70]  Given there was only 10 minutes before the Applicant needed to leave the workplace, Burn did not have the Applicant complete the usual exit forms, and whilst the Respondent did not receive a written resignation letter or a signed Deed, it continued to pay the Applicant from 13 June 2024 until the date he made his unfair dismissal application on 19 July 2024. 

1. According to Burn, the Applicant was directed to return to work on 18 and 19 July 2024 but did not do so and was directed to attend a show cause meeting with him and Wild on 22 July 2024, about the failure to comply with the directions to return to work.  The Applicant did not attend the meeting, and on 21 July 2024, Wild forwarded to Burn an email from the Applicant’s lawyers advising that the Applicant had lodged an unfair dismissal application, alleging he had been dismissed on 28 June 2024. 

1. Witness credibility

1. The parties have pressed for their version of events to be believed.  What occurred on 28 June 2024 is significant.  It is therefore necessary before making factual findings in respect of the matter, to provide some comments about the credibility of the Applicant, Wild, and Burn. 

3.1      The Applicant

1. Turning first to the Applicant.  The Applicant contends that where the evidence differs between him and Wild, it is his evidence that should be preferred for several reasons. An abridged version of those reasons follow:

a)   the Respondent’s witnesses agreed that the Applicant was a trustworthy and honest person;

b)   during approximately two hours of cross examination the Applicant was considered in his responses, taking the time to understand the questions and he answered honestly notwithstanding that English was his second language;

c)   the Applicant was very clear about his recollection of what was said;

d)   the Respondent’s attempts to discredit the Applicant by raising spurious allegations that he had not correctly recorded his sick leave were without foundation and failed – as did the Respondent’s attempts to suggest that the Applicant was disappointed with the Deed because it did not include sick leave;

e)   Wild’s recollection of the meeting on the morning of 28 June 2024 was not clear and his statement was based on a file note he prepared and his review of CCTV footage, the latter of which was not produced – in addition, he had the benefit of reviewing the Applicant’s witness statement before preparing his own;

f)   the wording of the email that Wild sent on 1 July 2024 to the Applicant used the phrase ‘mutual termination’ which is inconsistent with Wild’s evidence that he did not use words to that effect (as is the wording of the Deed that was attached to that email); and

g)   the logic of what Wild said occurred on the morning of 28 June 2024, that the Applicant resigned ‘within seconds’ before Wild could even discuss what his concerns were, and that the remainder of the 30-minute conversation was general chat, is simply not believable.

1. In addition to those reasons, the Applicant submitted that Wild knew he intended to continue working for the Respondent until he retired, and that whilst Wild gave evidence he was ‘sad’ that the Applicant was resigning, he did not try to talk the Applicant out of resigning during the meeting, nor did he try to explain to the Applicant that he did not have to resign, and that controls or procedures could be put in place to address the risks instead.  The Applicant noted that Wild adopted this approach in circumstances where he did not know why the Applicant was resigning, he held no concerns with the Applicant continuing to work for the Respondent, and on the only other occasion, in 17 years, where the Applicant had previously sought to resign, the Respondent convinced him to reconsider.  

1. In his first witness statement, the Applicant said that he saw the workplace as his family and Wild as his brother.  The Applicant spoke to his sense of worth and his social connections being connected to his job at the Respondent.  The Applicant provided precise detail of his duties and responsibilities, examples of his diligence and loyalty, the scope of work he engaged in, and the circumstances of Shah’s employment with the Respondent and subsequent resignation. 

1. The Applicant was, however, selective in his evidence in his first witness statement.  While traversing evidence of his resignation, he omitted detail that he had tendered his resignation with the Respondent on 19 May 2024. 

1. In his second witness statement (witness statement in reply), having had the opportunity to see that the Respondent had raised such event, the Applicant acknowledged that on 19 May 2023 he had sent an email to Filov attaching a resignation letter, copying Wild and Burn to the email.[71] 

1. The Applicant explained in his second witness statement that he had sent the resignation letter because, at the time, he was experiencing difficulty handling the Respondent’s accounts by himself and it was impacting too much on his health.[72]  The Applicant said that whilst he asked Wild to consider hiring someone to help him, nothing had been done and therefore he thought resigning was his only option.[73]  In that same witness statement, the Applicant stated that Wild informed him that he could not accept his resignation letter and agreed to hire someone.[74]  That someone was Huynh, who, according to the Applicant, would assist him with the Respondent’s accounts.[75]

1. During cross examination the Applicant, expanding upon his evidence in his second witness statement, disclosed it was not his intention to resign but he essentially submitted a resignation to trigger Wild to hire someone.  The Applicant’s behaviour in this respect, as reported by the Applicant himself, is perplexing.  The Applicant knowingly represented to the Respondent that he was resigning whilst all the time imbued with knowledge that this was not his intent.  To say one thing – ‘I resign’, whilst all the while pursuing an alternative agenda – namely, ‘I am staying but hire more staff’ – in the context of a relationship of trust and confidence where the Applicant perceived Wild as akin to a brother, is manipulative at worst and unimpressive at best.  In my view, it calls into question whether the Applicant is a reliable source of truth.

1. The Applicant’s evidence regarding his ‘succession planning’ is further troubling.  The Applicant’s evidence suggests he misconceived ‘succession planning’ as ‘retirement planning’.  In his first witness statement the Applicant stated that in 2023 Burn had asked him to update the birthdates for all staff and then sometime after he had asked the Applicant to detail his ‘succession plan’.[76]  The Applicant stated he explained to Burn that he had not thought about it at this stage and so Burn told him to think about it and email him.[77]  In that same witness statement, the Applicant said that at some stage, he sent an email to Burn that he would take one day off each week from January 2024 and then two days off each week from July 2024.[78]

1. Burn, however, stated in his witness statement, that on 1 June 2023, the Applicant emailed him a retirement plan, and that prior to this email from the Applicant, he had never discussed with the Applicant reducing his hours or asked the Applicant when he might retire, or what his plans for retirement were.[79]

1. Wild gave evidence that he was made aware by Filov in May 2023 that the Applicant had submitted a written resignation, and he understood from Filov that, following a discussion with Filov and Burn, the Applicant withdrew his resignation.  Wild said that it was, as part of that discussion, that he understood it was suggested by the Applicant that he would reduce his working days to three days per week from 1 July 2024, with a view to retiring by the end of June 2025.[80] 

1. In his second witness statement, the Applicant gave evidence that he thought he had a discussion with Burn about succession planning before he sent the email dated 1 June 2023, but that it could have been with Filov.[81]  The Applicant stated that he remembered there was a meeting with Wild, Filov and Burn where he was asked about succession planning, but looking back at the email, he thought it was Filov who asked him to send the email.[82]

1. There is an evident tension between the Applicant’s first account regarding ‘succession planning’ where he purported that Burn solicited the information and the evidence in the Applicant’s second witness statement where, after having reviewed Burn’s written evidence, he stated it could have been Filov.  This is notwithstanding the Applicant’s very detailed account of his interaction with Burn about the matter, an interaction which Burn denied. 

1. At paragraph [13] of his second witness statement, the Applicant stated that at a later point he was not comfortable with changing his hours, and in January 2024 he told Filov that he would continue to work five days a week.[83]  Filov purportedly informed the Applicant that this was fine.[84]  The Applicant gave evidence in this first witness statement that he advised Filov that he had a lot of commitments financially for his wife’s medical (bills) and all insurances and licences, so at this stage he would not go to part-time work.[85]  According to the Applicant, he advised Filov that he would let him know when he was ready to go part-time.

1. In cross examination when questioned about having decided to change from his full-time position to a part-time position, the Applicant gave evidence that ‘[t]o stay on my job, I just put it – I just told them from January, I will reduce one day, and from June, I will reduce two days, and Jim told me to put it in writing’,[86] and added, when asked whether it was his decision to reduce his hours:

It was my decision because they asked me, “What is your succession plan?” So I was thinking succession plan is a retirement plan, and I was … because of my – maybe, you know, if I not put in writing, then I have to leave the job. So I just put it in writing.[87]

1. As to whether the Applicant was subjected to pressure to move to part-time work, to the extent his job was in jeopardy, the Applicant’s evidence in his witness statements does not support such a finding.  At hearing, the Applicant made firm suggestion that if he did not put his ‘succession plan’ in writing he would have to leave his job.  This evidence is contrary to paragraph [66] of his first witness statement, where the Applicant stated that, having informed Filov in January 2024 that he did not want to work part-time hours, Wild advised him there was no pressure to go part-time.[88] It is also contrary to his oral evidence under cross examination where, when asked whether anybody had asked him to leave before May or after May, the Applicant responded, ‘No’.[89]  Despite this, in cross examination the Applicant continued to press the following when asked:

Yes, and it was in your mind to save your job, notwithstanding your job was never under threat because nobody ever said it was under threat at that point in time?---Employees always under threat all the time because they're employee.  They have to – they have to save their job, you know.[90]

1. I am not persuaded that the Respondent solicited a ‘succession plan’ from the Applicant, as detailed by the Applicant.  Further, to the extent that any pressure was placed upon the Applicant by the Respondent to make a commitment in writing that his hours would convert to part-time hours from January 2024, I am similarly unpersuaded.  The Applicant’s evidence that he emailed a ‘succession plan’ or ‘retirement plan’ in an effort to keep his job or not place his employment in jeopardy, is unsatisfactory.  I do not consider it is safe to place any significant reliance upon the Applicant’s evidence in this respect.

1. At paragraphs [14] and [69] of the Applicant’s first witness statement, the Applicant stated that he had a sick leave balance of 878 hours ($51,503.48[91]).  During cross examination, the Applicant was asked about the inclusion of this evidence in his first witness statement and how it related to the Deed that the Respondent provided to the Applicant on 1 July 2024. 

1. Initially, the Applicant said that he wanted ‘to show them, okay, I accumulated 878 hours sick leave since my 17 years’ work… [t]hat’s all’.[92]  As the questions in cross examination progressed, the Applicant provided the following evidence:

PN211 And when you got the deed and you went through the deed on the Monday, your issue was that because you had accumulated so much sick leave and that hadn't been paid out to you, you got cranky, didn't you?---I was not cranky.  I was thinking the whole life I worked for Gastech, and sometimes I was sick even I was going to work because I was alone in my department.  So I have to finish the work.  I have to check the bank and inform admin for all the payment received and everything.  So I was thinking this sick leave will help me support in my old age or whenever my wife was sick or there was operation or whatever.

PN212 That's right because you formed the view on the Monday when you saw the deed that it was unfair because you were expecting all that sick leave to be paid out.  That's right, isn't it?---I never think they will pay me, but I just put it that to - they will know I work hard for Gastech for 17 years, and I accumulated 878 hours during those period.  So they can know how loyal I was.

PN213 And to be fair, you thought to yourself, well, they should pay me out my sick leave because that's the fair thing to do because that you were a loyal employee.  That's what you were thinking at the time, wasn't it?---It was my request they will pay me that sick leave so then I can manage my - - -

1. At this point of the cross examination, that is, when the Applicant had stated it was his ‘request they will pay me that sick leave so then I can manage my…’, Ms Harding interjected on the basis that she thought the legal representative for the Respondent, Mr Baroni, was treading into territory regarding without prejudice conversations between the parties.  However, Mr Baroni, understandably in my opinion, given he had asked the Applicant to go to paragraph [69] of his witness statement prior to asking the questions that followed[93] and had referred to the Deed that the Applicant received on the ‘Monday’,[94] clarified that his questions were about paragraph [69] of the Applicant’s first witness statement.  Having dealt with Ms Harding’s interjection, Mr Baroni proceeded to ask the question again.  However, the Applicant made no further comment to the extent that it was his ‘request they will pay me that sick leave’.  The Applicant maintained that he was not expecting to be paid out the sick leave[95] albeit he conceded he thought it his right that he should have received some recognition for the untaken sick leave.[96]  When questioned about whether he was cranky or disappointed that he was not paid out his sick leave, the Applicant denied feeling that way.  The Applicant submitted that the Respondent failed to make out its suggestion that the Applicant was disappointed with the Deed because it did not include sick leave.  However, having conceded he thought it his right, and noting to what purpose the Applicant considered his sick leave could be utilised, I consider as disingenuous the Applicant’s unwillingness to accept the notion that the loss of his accrued untaken sick leave was something that upset him.

1. The Applicant’s evidence regarding his sick leave was also inconsistent.  The Applicant claimed he had referred to the sick leave balance to ‘show them’ the sick leave he had accumulated in 17 years and that was all.[97]  However, it became clear that the Applicant had made a request for sick leave (presumedly to be paid out),[98] the Applicant thought it was his accumulated sick leave and it would help him in the future,[99] and that the Applicant thought it was his right to have some recognition of all the untaken sick leave.[100]  This last position of the Applicant differs to his assertion he had referenced his sick leave balance twice in his witness statement, simply to ‘to show them…that’s all’.  Frankly, that statement is rendered improbable by the Applicant’s evidence that followed.   

1. It is apparent that the Applicant considered his employment had been terminated on 28 June 2024, as was made clear in correspondence to the Respondent of 3 July 2024.[101]  The Respondent points to the Applicant having continued to receive his normal pay until 23 July 2024[102] whilst all the while not advising the Respondent that he remained in receipt of a salary.  The following dialogue unfolded between counsel for the Respondent and the Applicant during the course of cross examination:

Yes.  You continued to be paid all the way up to the 23 July, that's correct, isn't
it?---Yes.

And so why didn't you ring up somebody and say, 'Why am I getting this money if
I've been terminated?'?---It was not in my control if somebody sending in my
bank account, and at that time I was in shock, so I was – I was not in state of – in
my mind since I was not – I was without a job.

Every time you looked at your bank account, you got another payment, you were
still in shock, were you?---I was not – I was not checking my bank account every
time.

When did you check it?---Once a while when they were – I have to pay some
bills.

Right.  You knew you were getting – you continued to get paid, but you were too
much in shock to say, 'I shouldn't be receiving this money'; is that right?---But to
whom I will ask, you know, because I don't know to whom I am to ask, 'Why you
are sending me money'.

All right.  After 17 years in Gastech, you didn't know who to ask; is that right?---I
– since I left the job from there, you know, Mark told me to leave the job, so then
it was – it was in my mind I can't call anyone to ask.

Well, that's just nonsense, Mr Shah, you agree with that?  You could have picked
up the phone and rang somebody?---Yes, but I decided not to call because it was
not in my control whether somebody sending me money in my bank account.

Yes, it was.  You can ring up and say stop?---Yes, but I decided not to call.

Because you're dishonest, isn't it?  That's the case?---I decided not to call and not
to – not to ask anything - anyone at Gastech.

Right.  Did you give the money back?---No.

Because you're still in shock?---I was waiting – they will – they will send me the
explanation why they are sending the money to me.

Well, what explanation do you need if you say you were terminated?---Because
they are – they are sending money to me, so they have the proper reason, not me.

Did you understand what I've just asked you?---Yes.

You say you were terminated on the 28 June?---Yes.

For the next, nearly, month, they keep paying you; correct?---Yes.

Yes.  And you're waiting for them to ring you to explain why you keep getting
paid, notwithstanding you say your employment's been terminated a month
earlier; is that right?---It is – it is that payroll officer's duty to call me, 'Okay, BC,
now this is money we send you by mistake, so you send us back'.

Okay.  You had no duty whatsoever to inform yourself of why you're getting the
money; is that right?---I have a duty but I decided not to call Gastech.

You ignored the duty that you say you had; is that correct?---I decided not to call
Gastech, you know…[103]

1. The Applicant’s answers in cross examination about the payments made by the Respondent to him after 28 June 2024, demonstrate a lack of candour and were evasive.  It was apparent that the Applicant refused to make proper concessions to questions asked, to which he knew he had no sensible response.

1. The inconsistencies, improbability and evasiveness so described in the Applicant’s evidence, in addition to my other observations about the Applicant’s evidence, lead me to make an adverse finding about the Applicant’s credibility pertaining to the evidence he gave at the hearing and to the veracity of his evidence as articulated in his witness statements. The Applicant’s credit is significant to the consideration of the threshold issue of whether the Applicant was ‘dismissed’ as that term is understood be reference to s 386 of the Act.

3.2      Burn’s credibility

1. Burn’s evidence withstood scrutiny.  His account that he never conversed with the Applicant about a ‘succession plan’ prior to the Applicant’s email dated 1 June 2023, and that he had not requested an email from the Applicant about the same, was unchallenged.  The remainder of Burn’s evidence was unremarkable insofar as it appeared to be a candid account, and Burn did not present as evasive. 

3.3      Wild’s credibility

1. In respect to Wild, the Applicant called into question Wild’s recollection of the meeting on 28 June 2024, which the Applicant said was not clear.  The Applicant further contended that the logic of what Wild said occurred on the morning of 28 June 2024, that is, that the Applicant resigned ‘within seconds’ before Wild could even discuss what his concerns were, and that the remainder of the 30-minute conversation was general chat, was simply not believable.

1. Regarding Wild’s evidence, when asked how long it was before the Applicant proffered his resignation in the meeting of 28 June 2024, Wild noted that it was ‘[l]ess than a minute’, and then gave evidence that the remainder of the half an hour was occupied by general matters.[104]  Wild’s evidence in cross examination generally aligns with his witness statement.  Although, Wild gave evidence that:

a)   he probably could have said to the Applicant several times the words ‘commercial risks’;[105] and

b)   that the Applicant probably said he ‘could trust him’.[106]

1. When asked after giving that evidence, whether he agreed that at the meeting on 28 June 2024, the Applicant may have told him that Wild could trust him, and that there was not a risk, Wild gave the following evidence:

I can’t – I can’t remember him saying that.  I can’t remember him saying at all I can trust – but he’d already said he’d resigned, and I’d already accepted his resignation, and he was already happy with that.  So the conversation that was run afterwards was just overall general chitchat, because we both accepted – he… his resignation, I accepted it, and the whole conversation tone changed.[107] 

1. Some of what Wild said is evidently inconsistent.  In respect to that inconsistency, I refer to the aforementioned example where on the one hand Wild concedes that the Applicant ‘probably’ said that Wild ‘could trust him’, to then responding, when asked to confirm that evidence, that he could not remember the Applicant saying that. 

1. Wild was cross examined about references to the term ‘mutual termination’ in the email that he sent to the Applicant on 1 July 2024.[108] For his part, Wild denies using the word ‘mutual termination’ in the meeting on 28 June 2024. The Applicant presses that Wild informed him in the meeting on 28 June 2024 that the Applicant’s departure was by way of a ‘mutual understanding’,[109] and that when the Applicant suggested to Wild, he was ‘sacking’ him, Wild denied the assertion.

1. Wild reasoned that the reference to the term ‘termination’ arose in circumstances where HR had sent him the Deed and it had the word ‘termination’ on it, so he copied that across to the subject line (of the email dated 1 July 2024).[110]  The same issue regarding the term ‘mutual termination’ was highlighted with the Deed, which, at recital B, referred to the parties having ‘mutually agreed to terminate the employment agreement on the terms and conditions set out in this agreement’.[111]  When questioned about the Deed and it being devoid of reference to the Applicant resigning, Wild said that the Deed had been prepared by HR, which he then provided to the Applicant.  Wild said he presumed their (meaning HR) wording on the Deed was correct because it was not his job (presumedly to prepare the Deed or check it).[112]

1. As already observed, in his witness statement Wild stated that he made a file note in which he summarised the conversation which he had held with the Applicant on 28 June 2024.[113]  That file note referred to the Applicant verbally resigning at the commencement of the meeting and, in addition, referred to the term ‘mutual termination’ – in the context that the Applicant had asked for an extra payment for his length of service with the company.[114]  Whilst it is, on the face of it, unclear as to whether at the time of making the file note, Wild had received the Deed from HR, it nevertheless is the case that the file note was made on 28 June 2024 – according to Wild, and the email to the Applicant attaching the Deed, was not sent until 1 July 2024.  Wild states that the first time the word ‘mutual’ came up was in the Deed, which had been written up by others (HR).[115]  However, I am not persuaded that this is the case. 

1. The importance of approaching fact-finding based on the contemporaneous documentary record and objective circumstances was described by Lee J in Transport Workers' Union v Qantas (No.1) (TWU).[116]  The circumstances before me markedly differ to those that his Honour sets out.  However, what was said in TWU at paragraph [17] warrants repeating.  His Honour adopted an approach which was premised on the assumption that contemporaneous notes and documents are the extemporaneous and unvarnished product of the conduct of internal dealings or communications between the contesting parties, and that confidence can be placed on the contemporaneous record, particularly where that record is unfiltered and sufficiently complete. 

1. If Wild is to be believed, the file note is a contemporaneous record of Wild’s recollection of the meeting on 28 June 2024.  It is of course the case that there are, in my view, limitations regarding the file note, as was aptly pointed out by the Applicant in his closing submissions (see paragraphs [29]-[30]).  The file note is not a documented record of events that passed in correspondence between the parties or was otherwise shared.  To that extent, there is a real and present risk that the file note is a self-serving missive that reinforces Wild’s account that the Applicant resigned.  This must be taken into account.  However, the reference to a ‘mutual termination’ does not assist Wild – particularly in light of what I have already said, and because a ‘mutual termination’ may be considered inconsistent with a voluntary and unequivocal resignation. 

1. Having considered all the evidence, I am not satisfied that the first time the term ‘mutual termination’ or ‘mutual agreement’ or the like was used, was in the Deed.  It follows that I do not consider, on balance, that Wild’s evidence in this respect presents as a candid recollection of the meeting on 28 June 2024.

1. In short, neither the Applicant nor Wild struck me as entirely believable witnesses, which calls their credit into question.  I will return to this point shortly. 

1. Dismissal

4.1      Legislative framework

1. Central to the consideration of whether the Applicant was dismissed is the operation of s 386(1) of the Act.

1. Section 386(1) of the Act defines what constitutes a dismissal for the purpose of Part 3-2 of the Act, which concerns Unfair Dismissal. The word ‘dismissed’ is defined in s 12 of the Act as having adopted the meaning in s 386 of the Act.

1. Section 386(1) of the Act 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.

1. There are exceptions under s 386(2) of the Act regarding when a person has been dismissed; those exceptions are not relevant to this case.

1. The definition of dismissal in s 386(1) of the Act has two elements, both of which have been subject to consideration. The first traverses ‘termination on the employer’s initiative’ and the second, ‘resignation in circumstances where the person was forced to do so because of conduct or a course of conduct’. This bifurcation was explained by the Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli (Bupa),[117] in the following terms:

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

(1) There may be a dismissal within the first limb of the definition in s 386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s 386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.[118]

1. While a summary of the position under s 386(1) of the Act was proposed in Bupa, a later decision of the Full Bench in City of Sydney RSL & Community Club Limited v Balgowan (City of Sydney RSL),[119] gave further consideration to the operation of s 386(1)(a) of the Act, expressing:

[10] It seems clear…that the concept of constructive dismissal is to be accommodated by s 386(1)(b) and that concept is not subsumed in s 386(1)(a).

[11] Section 386(1)(a) seems plainly to be intended to capture the case law determining the meaning of termination (of the employment relationship) at the initiative of the employer. In Mohazab the Court considered that the expression “termination at the initiative of the employer” was:

“. . . a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘‘termination of employment.’’” (references omitted)

1. The Full Bench in City of Sydney RSL placed reliance on the decision of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd [No 2] (Mohazab).[120]  This is unsurprising given the Full Court of the Federal Court in Mahony v White observed that the Act had retained the use of the phrase and that the judgment in Mohazab remained good authority as to the connotation of that formula. ^[121] 

1. While finding it unnecessary and undesirable to endeavour to formulate an exhaustive description of what constituted ‘termination at the initiative of the employer’, the Court in Mohazab identified that an important feature was that the act of the employer resulted directly or consequentially in the termination of the employment and the employment relationship was not voluntarily left by the employee.[122]  Furthermore, while a termination of employment may involve more than one action, it was important to ask oneself what was the critical action or actions, which constituted a termination of employment.

1. The Applicant confirmed that he relied upon s 386(1)(a) in the first instance, and s 386(1)(b) in the alternative.[123]

4.2      Termination at the Respondent’s initiative or a forced resignation

1. To recap, termination at the initiative of the employer arises where the action of the employer is the principal contributing factor leading to the termination of the employment relationship.[124] In contrast, a dismissal pursuant to the second limb of s 386 requires consideration of whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct, such that the employee had no effective or real choice but to resign.

1. The central tenant of the Respondent’s argument is the Applicant’s evidence has been reconstructed (as to the events of 28 June 2024) to create a narrative that his employment was terminated by Wild on that date.  The Applicant contends that his account should be preferred to that of Wild, and provides multiple reasons why he should be believed when he says he was dismissed. 

1. I consider the following factual findings uncontroversial. 

1. On 27 June 2024, there was a discussion between Wild, Burn and Filov regarding the Respondent’s concern about the Applicant living with Shah now that Shah would be working for a competitor of the Respondent. It was decided that Wild would speak to the Applicant about this risk.

1. On the morning of 28 June 2024, Wild asked the Applicant to join him in his office having not advised the Applicant as to the purpose of the meeting and having not informed the Applicant prior, that a meeting would be taking place. 

1. The issue in respect of the risk posed by the Applicant living with Shah and continuing to work for the Respondent, had not been raised with the Applicant prior to the meeting on 28 June 2024.

1. The meeting was approximately 30 minutes in duration and no one else was present in the meeting.

1. Observations have already been made that neither the Applicant nor Wild presented as particularly credible witnesses.  Therefore, I am not persuaded that the meeting on 28 June 2024 unfolded as detailed by the Applicant, and similarly, I hold reservations about the account provided by Wild.  Wild and the Applicant were witnesses who approached the giving of evidence with, in my opinion, conscious or subconscious inhibitions that sometimes exist when a witness considers that some aspect of their evidence may be adverse to their own interests.  It follows that I consider that what occurred in the meeting on the morning of 28 June 2024, sits somewhere between the accounts I have been provided by the Applicant and Wild. 

1. In making the following findings, it has proved necessary to draw some inferences properly arising from the evidence (and inferences available to be drawn from the absence of any material).  In this regard, I have been guided by the principles on drawing inferences from the evidence – as detailed in the decision of the Full Bench in DesignInc (Sydney) Pty Limited v M Xu.[125]

1. I find that it is more likely than not that on 28 June 2024 the following occurred between Wild and the Applicant:

a)   Wild advised the Applicant in the meeting that there was a commercial risk and there were issues regarding managing security and confidentiality in light of Shah going to work for Encore;

b)   the Applicant said in the meeting that Wild could trust him;

c)   a discussion unfolded between the two in which the Applicant and the Respondent mutually agreed to go separate ways;

d)   whilst the Applicant agreed to resign and communicated that to Wild in the meeting, his resignation was conditional on the termination payment being structured to provide him with the greatest financial benefit and that the Applicant would be provided with a reference; and

e)   the Applicant also sought an additional or extra monetary payment in recognition of his length of service. 

1. Further, it was agreed between the parties that the Applicant could depart the Respondent business at 1:00PM on 28 June 2024, after the Applicant had handed over to Huynh. 

1. A strong inference can be drawn that at the time of the discussion on 28 June 2023, the Applicant’s agreement to resign was conditional on other terms being settled, in particular the monetary component of the agreement.  On 1 July 2024, the Applicant received from Wild a Deed, which set out what the Respondent was willing to offer to part ways on mutually acceptable terms.  The Deed included payment in lieu of notice, a redundancy payment and an additional payment of $10,000.00 (gross) as an ex-gratia payment. 

1. Wild’s conduct on 28 June 2024 and thereafter on 1 July 2024 did not terminate the Applicant’s employment.  Wild opened an exit discussion with the Applicant, having proposed a parting of the ways by a managed resignation.  I am satisfied the Applicant was open to consider his managed resignation at that point.  As of 28 June 2024, the Applicant had not given notice that his employment would end on unilaterally or mutually determined terms. 

1. On receipt of the Deed, it was evident that the Applicant was dissatisfied with the terms that had been put forward by the Respondent and he therefore engaged lawyers.  On 3 July 2024, the lawyers acting on instruction of the Applicant, wrote to Wild stating the following:

We advise that we have been appointed to act for Bhailal Chandulal (BC) in relation to the
termination and the proposed Deed of Mutual Employment Termination Agreement attached to your email to BC on 1 July 2024 (Proposed Deed).

We are currently taking instructions and will write to you next week regarding his response to
the Proposed Deed and your termination of his employment.[126]

1. Whilst the Applicant’s lawyers purport that there had been a termination of the Applicant’s employment as of 3 July 2024, I do not find that to be the case.  It is, of course, to be appreciated that the content of the correspondence from the Applicant’s lawyers may be shaped by the instruction of their client. 

1. At that point, that is as of 3 July 2024, the Applicant remained employed.  His resignation had not been unequivocal to the extent that the Applicant’s resignation was subject to certain conditions being met, predominately regarding the financial aspect of the separation.  Those terms were to be negotiated as is clear from the discussion between Wild and the Applicant on 28 June 2024, and the Applicant’s correspondence via his lawyers on 3 July 2024 – where the lawyers noted that they would write to Wild ‘next week regarding his response to the Proposed Deed’. 

1. The evidence before me suggests that there was communication between the parties between 10 and 17 July 2024 (for example, communication occurred on 15 July 2024, but it is not entirely clear as to the content).[127]  As of 17 July 2024, the Respondent stated, disingenuously in my view, that it understood that the Applicant had freely and voluntarily resigned on 28 June 2024.  I do not accept that the Respondent understood that the Applicant had freely and voluntarily resigned on 28 June 2024, because the terms of the Applicant’s departure from the Respondent business had not yet been agreed upon and settled at that time.  Evidently, the Deed that had been sent to the Applicant on 1 July 2024, was insufficient in its terms to satisfy the Applicant that a mutually agreed termination by way of his resignation was the way to proceed.

1. The letter of 17 July 2024 set out that whilst the Respondent understood that the Applicant had resigned, it ‘acknowledged’ the Applicant’s ‘retraction and accordingly’ directed the Applicant ‘to return to work and attend at 9AM tomorrow Thursday 18 July 2024.’

1. On 18 July 2024, the Applicant’s lawyers responded to the Respondent’s instruction for the Applicant to return to work stating amongst other matters: 

We are instructed that our client denies the various assertions set out in both of those letters. The Direction to Return to Work appears to be an attempt by your client to 'walk back from' its previous actions, at no stage did our client freely and voluntarily resign.

Our client maintains that his employment terminated on 28 June 2024 and as such your client is in no position to provide any directions to our client and our client will not be attending work tomorrow.[128]

1. To the extent that the Applicant asserted that he did not freely and voluntarily resign, I again reiterate that, as of 28 June 2024 and thereafter, the Applicant remained employed.  There had been no unequivocal resignation provided to the Respondent by the Applicant, the mutually agreed separation had not yet been agreed, and it was evident that the Applicant’s resignation was subject to his satisfaction with financial aspects of the agreement.  Further, I am not satisfied that the Respondent had terminated the Applicant’s employment at that point (17 July 2024).  This is because Wild had not communicated to the Applicant that his employment was terminated, and the Applicant continued to be paid up until approximately 23 July 2024. 

1. Whilst there was a delay in the Respondent corresponding with the Applicant about the Applicant’s return to work, I find this reasonable in circumstances.  On 3 July 2024, the Applicant’s lawyers had communicated that they would respond to the Deed the following week.  The Respondent therefore was not wholly responsible for the delay in communicating with the Applicant. 

1. At this stage, it is unnecessary to detail the sequence of correspondence that followed the Respondent’s letter of 17 July 2024.  Briefly stated, the Applicant was instructed to return to work, and he declined to do so – predicated, as it would seem, on his incorrect view that his employment had been terminated on 28 June 2024.  The Applicant, having declined to return to work created a somewhat impossible circumstance, leaving the Respondent with little option but to terminate his employment on 23 July 2024. 

1. Having foreshadowed that the Applicant was dismissed, further explanation is warranted.

1. As I have expressed, I do not consider that the Applicant resigned – whether by a course conduct engaged in by the employer or in the heat of the moment.  Whilst on 28 June 2024 the parties discussed the Applicant’s departure from the business by way of ‘mutual agreement’ or ‘mutual termination’, the resignation proffered by the Applicant was subject to agreement on a separation package.  There was not, in my view, an unequivocal or unconditional resignation given by the Applicant on 28 June 2024. 

1. By letter of 23 July 2024, the Respondent gave notice to the Applicant that it had decided to terminate the Applicant’s employment effective that day.  The letter of 23 July 2024 detailed, amongst other matters, the following:

a)   the Respondent’s letter to the Applicant of 19 July 2024 asked the Applicant to show cause as to why his employment should not be terminated for repeatedly failing to comply with a reasonable and lawful direction to return to work;

b)   on 21 July 2024, the Applicant’s solicitor wrote directly to Wild on the Applicant’s behalf that the Applicant considered his employment had terminated on 28 June 2024 and that the Applicant would not be attending the show cause meeting; and

c)   a decision had been taken to terminate the Applicant’s employment for failure to follow a lawful and reasonable direction and an inability to have trust and confidence in the Applicant – five weeks in lieu of notice would be provided.

1. I therefore find that the Applicant’s employment was terminated at the initiative of the Respondent on 23 July 2024.  This finding has implications for the Applicant’s unfair dismissal application. 

1. At the time the Applicant made his unfair dismissal application on 19 July 2024, he had not been ‘dismissed’.  As was said by the Full Bench in Mr Peter Mihaljlovic v Lifeline Macarthur,[129] (Lifeline Macarthur) a person’s employment with her or his employer has been terminated on the employer’s initiative when the person’s employment relationship with the employer has ended, and where the employee has been terminated on notice, the employment relationship ends when the notice period expires.[130] Because s 386(1) defines when a person has been dismissed for the purpose of s 394(1), the same propositions apply to the meaning of the expression ‘A person who has been dismissed’ in s 394(1). Section 394(1) requires a person’s employment to have terminated in order for that person to make an application for an unfair dismissal remedy.[131] 

1. The conclusion that the Applicant’s employment relationship with the Respondent had not terminated prior to the making of the unfair dismissal means that the Applicant’s application, made as it was on 19 July 2024, was not made in accordance with s 394(1) of the Act.[132]  However, as was noted in Lifeline Macarthur that is not the end of the matter, because it remains necessary to determine whether, in light of the fact that the Applicant is not a ‘person who has been dismissed’, the prematurity in the lodgement of the Applicant’s application has the consequence that it is invalid and a nullity, or merely subject to a defect or irregularity which is capable of being cured by the general powers provided to the Commission under the Act.[133] 

1. The parties were provided the opportunity to respond to a finding that the Applicant’s dismissal took effect on 23 July 2024. 

1. The Applicant pressed that, if the Commission finally determined that the Applicant’s employment was terminated at the Respondent’s initiative on 23 July 2024, there was no doubt that the Applicant had been dismissed for the purposes of s 386 of the Act, resulting in the Commission having jurisdiction to grant the remedy sought by the Applicant. Further, the Applicant contends, the application having been filed prematurely had not caused any prejudice to the Respondent.

1. In support of his contentions, the Applicant noted:

a) it was his position that his employment was terminated on 28 June 2024, meaning any application for unfair dismissal was required, under s 394(2) of the Act, to be lodged on or before 19 July 2024, which is why it was lodged on that date;

b)   the Respondent had been aware that the Applicant considered his employment to have been terminated since 3 July 2024;[134]

c)   by 23 July 2024, the Respondent was aware that the Applicant contested any purported dismissal by the Respondent on the basis that the Respondent was not in a position to give him any directions and/or terminate his employment, that employment having already ended;[135]

d)   the Respondent was not required to and did not file its response to the unfair dismissal application until 8 August 2024; and

e)   the matter had already proceeded to hearing, with the Commission having ordered that the application and the Respondent’s jurisdictional objection be heard concurrently. 

1. The Respondent submitted that it understood consideration was being given to whether to allow for the premature filing of the application, such that the application would be amended so that it is made in accordance with s 394(1) of the Act. Referring to Lifeline Macarthur, the Respondent observed that in that case there was confusion as to the date the termination took effect, but in the matter on foot that was not the case. 

1. The Respondent submitted that the Applicant’s assertion that his employment had been terminated as of 28 June 2024, had been communicated in the Applicant’s Outline of Submissions filed on 30 September 2024, the Applicant’s Outline of Submissions in Reply, the Applicant’s Closing Submissions and at the hearing on 21 October 2024.  The Respondent further noted that the Applicant was assisted by experienced lawyers, and that the Applicant’s cross examination of the Respondent’s witnesses: 

a)   was entirely directed to making good that the Respondent had terminated the Applicant’s employment on 28 June 2024, because of the conversation between the Applicant and Wild on that day; and

b)   with respect to what occurred after 28 June 2024, was an attempt to demonstrate that the Respondent’s account was ‘concocted’ to create the impression that the Applicant’s employment was not terminated on 28 June 2024.[136]

1. The Respondent pressed that the circumstances confronting the Commission on this occasion were entirely distinguishable from Lifeline Macarthur.

1. Notwithstanding the Respondent’s protestations, I have decided to exercise discretion to waive the irregularity in the manner in which the application was made for the following reasons. 

1. I do not accept the Respondent’s view that there was no confusion as to the date that the termination of employment took effect.  First, there was confusion between the parties as to whether there was a ‘dismissal’.  Second, the Applicant considered he had been dismissed on 28 June 2024, in contrast to the Respondent who submitted that the Applicant had voluntarily resigned and that it had accepted that resignation (on a date perhaps unknown) – despite the evidence establishing that Wild had instructed the Applicant to return to work on 17 July 2024.  Third, the Respondent had continued to pay the Applicant until the date of the Applicant’s termination of employment on 23 July 2024.  Fourth, the Respondent had itself submitted that its case, as did that of the Applicant, turned solely on the critical factual question of what occurred on 28 June 2024.  Fifth, despite advancing that the Applicant had voluntarily resigned, the Respondent issued the Applicant with a letter of termination of 23 July 2024.  The confusion in respect to whether there was a dismissal and if there was, the date of that dismissal, arose from both the conduct of Applicant and Respondent. 

1. As to the Applicant, the Applicant clearly held the view that his employment had been terminated by the Respondent as of 28 June 2024.  That view was not disabused on engaging legal representation.  On 3 July 2024, the Applicant’s legal representative informed the Respondent there had been a termination of the Applicant’s employment by the Respondent.  As observed, such correspondence may have been shaped by the initial instruction of the Applicant.  However, by 19 July 2024, the relationship between the Applicant and Respondent had become litigious.  Legal correspondence passed between the parties, some, it would seem on a without prejudice basis, and the legal representative of the Applicant had evidently determined that its client had been dismissed as of the date referred to in the unfair dismissal application (28 June 2024).  That the Applicant was found to be ultimately wrong on this point, that is that his dismissal took effect on 23 July 2024, and that the matter became protracted after 28 June 2024, may perhaps in some part be attributed to the involvement of legal representation. 

1. As it stands, there is no doubt that the Applicant is, and has been since 23 July 2024, a person who has been dismissed within the meaning of that expression in s 386 of the Act. The Respondent appears to assert that it and the Applicant would suffer significant prejudice as a consequence of the ‘proposed amendment’. There is confusion on this point. It is not that the Commission would move to amend the application, it would, if satisfied, look to exercise discretion to waive the irregularity with the application under s 586(b) of the Act. The Respondent has been on notice since 3 July 2024 that the Applicant considered he was dismissed. It is not the case that premature filing of the unfair dismissal application has prejudiced the Respondent as asserted. Whether the Applicant was dismissed was in contest, as was the date that the employment relationship came to an end. The premature filing of the unfair dismissal application does not change that. Furthermore, parties were directed that both jurisdiction and merits would be addressed at hearing.

1. However, if I were to dismiss the unfair dismissal application, the Applicant would be compelled to make an application under s 394(3) for a further period in which to file the same application a second time. An extension of time application would proceed against a backdrop where prior to the relatively recent hearing, whether the Applicant was dismissed was contested and if dismissed, the date of that dismissal was uncertain. It was not until contested evidence had been analysed and assessed, that a view was able to be formed that the application was premature. To decline the waiver of the irregularity in such context would be contrary to the notion of affording a ‘fair go all around’[137] to the parties. 

1. It follows that the irregularity in the manner in which the unfair dismissal application was made is waived. 

4.3      Failure to call witnesses

1. The Applicant invited the Commission to draw an inference against the Respondent for its failure to call Filov to give evidence.  It was uncontroversial that at the time of the hearing Filov remained an employee of the Respondent. The Applicant claims that Filov’s evidence would have been relevant to several matters that the Respondent sought rely on in evidence presented orally to the Commission and in the witness statements of Wild and Burn, including:

a)   discussions regarding the Applicant’s retirement plans initially put forward in June 2023;

b)   discussions regarding the Applicant’s resignation in 2023 and the purpose for hiring Huynh;

c)   the Applicant changing his mind and wanting to continue working full-time and notifying Filov of this at the beginning of 2024; and

d)   what was discussed on 27 June 2024 at the meeting with Wild and Burn regarding the Respondent’s concerns about the Applicant continuing to work whilst Shah went to work for Encore.

1. Essentially, the Applicant contended that the Commission must draw an adverse Jones v Dunkel[138] inference.  The rule in Jones v Dunkel has been described as a ‘rule of common sense and fairness in relation to the fact-finding process’.[139]  In Hyde v Serco Australia Pty Ltd,[140] the Full Bench observed that the rule in Jones v Dunkel had been considered extensively in Tamayo v Alsco Linen Service Pty Ltd (Tamayo)[141] and outlined the observations made in that case.  Observing that the Commission was not bound by the rules of evidence, that it could inform itself in relation to a manner as it considers appropriate, and that the Commission must perform its functions and exercise its powers in a manner that is ‘fair and just’, the Full Bench adopted the Tamayo observations.  It continued that as the ‘rule’ in Jones v Dunkel is fundamentally concerned with issues of fairness, the Commission will give consideration to its application in an appropriate case.  A Jones v Dunkel inference can be drawn where there is a conflict in the evidence on particular issues and there is an unexplained failure to call someone to explain that conflict.  It is, of course, accepted that when exercising discretion concerning the rule in Jones v Dunkel, the discretion is to be exercised in accordance with the dictates of common sense and fairness.[142]

1. While Filov’s absence was not adequately explained by the Respondent, it bears little on the case. In my view no inference adverse to the Respondent is open to be drawn because of the following reasons:

a)   in respect to the Applicant’s retirement plans, it was the Applicant’s evidence that communication about such plans had been engaged in with Burn.  It was not until the Applicant filed his witness statement in reply, having had the opportunity to review Burn’s evidence, that he identified that it could have been Filov with whom he had communications.  Where there is a conflict in the evidence, it was predominately in respect of the Applicant’s differing accounts as detailed;

b)   concerning discussions about the Applicant’s resignation, direct evidence shows that the Applicant resigned in 2023 and the reasons for the Applicant doing so were clearly articulated by the Applicant in cross examination – while the Applicant may hold a view as to why Huynh was hired, ultimately Huynh’s hiring was a decision taken by the Respondent and in this respect both Wild and Burn were positioned to speak to it, particularly Burn;

c)   it was uncontroversial that after submitting his ‘succession plan’ the Applicant had, in January 2024, wanted to continue working full-time and had notified the Respondent of the same – the Applicant continued to work full-time as of the date of his dismissal;[143] and

d)   as to what was discussed in the meeting on 27 June 2024, whilst the content of that discussion provides context, it does not instrumentally inform as to the circumstances of 28 June 2024, where a meeting was held between only the Applicant and Wild, Filov not being party to that meeting.

1. Similarly, the Applicant pressed that Huynh had not been called by the Respondent notwithstanding the clear evidence in the initial witness statement of the Applicant.  The Applicant continued that the Commission can and should find that Huynh’s evidence would not have been favourable to the Respondent and that the evidence relevantly included the following:

a)   what Wild told Huynh immediately after his meeting with the Applicant;

b)   what the Applicant said to Huynh after his meeting with Wild; and

c)   what was discussed when the Applicant, Wild and Huynh were all in the accounts office together and the Applicant warned Huynh that Wild could do this to him one day.

1. Whatever the Applicant said to Huynh whether individually or in the company of Wild, after the meeting between him and Wild, sheds little light on the content of the conversation between the Applicant and Wild which preceded those interactions.  It follows, if one were to draw an adverse inference for which the Applicant contends, it would not have assisted the Applicant’s case in any event.

1. Unfair dismissal

1. It was uncontroversial that the Applicant had satisfied the minimum employment period and that his annual rate of earnings was less than the high-income threshold. Having found that the Applicant was dismissed, it is now necessary to consider the matters specified in s 387, including whether there was a valid reason for dismissal and any other matters the Commission considers relevant. Section 387 of the Act contemplates that an overall assessment as to the nature of the dismissal will be undertaken and in so doing, the criteria in s 387 must, where relevant, be weighed up in totality.

5.1      Valid reason

1. In respect of whether there was a ‘valid reason’ for the Applicant’s dismissal, by virtue of the Applicant’s refusal to return to work when instructed on 17 July 2024, I consider that there was. 

1. ‘Valid’ in this context generally refers to whether there was a sound, defensible or well-founded reason for the dismissal.[144]  Such a reason is one that is valid in the sense that it was both sound and substantiated.

1. An employer clearly has authority to give directions and expect them to be obeyed, subject to such directions being lawful and reasonable.[145]  In R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday, (Darling Island Stevedoring) it was held:

If a command relates to the subject matter of the employment and involves no illegality, the obligation of the servant to obey it depends at common law upon its being reasonable.  In other words the lawful commands of an employer which an employee must obey are those which fall within the scope of the contract of services and are reasonable.[146]

1. The Full Bench in Briggs v AWH, stated that the determination of whether an employer’s direction was a reasonable one did not involve an abstract or unconfined assessment as to the justice or merit of the direction.[147]  The employer, therefore, is not required to demonstrate that the ‘direction issued was the preferable or most appropriate course of action, or in accordance with “best practice”, or in the best interests of the parties’.[148]  Adopting the approach identified in Darling Island Stevedoring, the Full Bench cited Dixon J, quoting:

But what is reasonable is not to be determined, so to speak, in vacuo. The nature of the employment, the established usages affecting it, the common practices which exist and the general provisions of the instrument, in this case an award, governing the relationship, supply considerations by which the determination of what is reasonable must be controlled.[149]

1. The Full Bench in Mt Arthur Coal held that the direction must be ‘lawful’ and ‘reasonable’.[150]  For a direction to be lawful, it must, amongst other matters, be one that falls within the scope of the Applicant’s employment.[151]

1. On 17 July 2024 and 18 July 2024, the Respondent directed the Applicant to return to work. It should be observed that the direction to the Applicant to return to work, did not, in my view, constitute the retraction of the termination of the Applicant’s employment.  If that had  been the case, there would be a legitimate question to be answered as to whether that constituted a lawful and reasonable direction. 

1. The direction to the Applicant to return to work was a lawful and reasonable direction in the context where the parties were unable to finalise a mutual agreement regarding the Applicant’s departure from the business.  It had not been the case that the Respondent had given notification to the Applicant that he had no continuing future in the business and therefore there had been the parting of the ways.  Wild had opened a discussion in respect of commercial risk arising from the Applicant’s son working for Encore and, during the course of that discussion, the Applicant and the Respondent discussed the Applicant’s agreed exit from the business, with the Applicant proffering his resignation subject to certain conditions being met.  It was in such circumstances unremarkable that the Applicant was obliged to return to work when an agreement between the parties was not forthcoming.  

1. The direction to the Applicant to return to work was a lawful and reasonable direction notwithstanding the Applicant’s assertions to the contrary, and despite that Respondent’s assertion that the Applicant had retracted his resignation (which he clearly had not because he had not resigned). 

1. Where the parties were unable to finalise a mutual agreement regarding the Applicant’s departure from the business, it was incumbent upon the Applicant to comply with the direction provided.  It does not strike me that the circumstance was one where there was significant animus between the parties, albeit by 17 July 2024, it would be reasonable to conclude the relationship had somewhat soured.  However, that the Applicant and Wild held each other in reasonably high regard prior to 28 June 2024 must be factored, and apart from work issues already traversed in this decision, there were no issues with the Applicant’s work performance, and the Applicant’s issues in respect of adequate staffing at the Respondent business had been addressed.  At hearing, the Applicant went to great lengths to emphasise the importance of both his job with the Respondent and the relationship he had with co-workers and Wild. 

1. The Applicant’s failure to return to work as directed on 17 and 18 July 2024 evinced a breach of the fundamental term of the contract of employment that obliged the Applicant to comply with the lawful and reasonable directions of the Respondent.  The Applicant’s refusal to return to work and insistence that he had been dismissed, gave rise, as observed, to the invidious position of leaving the Respondent no choice but to terminate the employment of the Applicant on 23 July 2024. 

1. It follows that the Applicant’s substantial and wilful breach of the direction to return to work constituted a valid reason for his dismissal. 

5.2      Notification of the reason and an opportunity to respond

1. At a general level, the case law makes it plain that when it comes providing an opportunity to respond, the process does not require any degree of formality, and that the requirement is to be applied in a practical way in order to ensure that the employee is treated fairly.[152]  It is accepted that where an employee is aware of the precise nature of the employer’s concern about his or her conduct or performance, and has a full opportunity to respond to this concern, this is enough to satisfy the requirements of the sub-section.[153] 

1. Turning to whether the Applicant was afforded an opportunity to respond to the allegations and to ‘Show Cause’ why he should not be dismissed, I consider that the Applicant was notified of the reasons for dismissal and was given an adequate opportunity to respond to such reasons.

1. In all the circumstances, I have found that the Applicant was notified of the valid reason and provided with a meaningful opportunity to respond. 

5.3      Support person

1. It is evident from the letter of 3 July 2024 that the Applicant had engaged a legal representative to assist him.  Whilst the Applicant was instructed on 19 July 2024 to attend a show cause meeting with Wild and Burn in attendance, his refusal to do so was communicated by his legal representative on 21 July 2024.  Whilst a disciplinary/show cause meeting did not take place due to the Applicant’s refusal to attend, it cannot be said that the Applicant’s response to the instruction to attend that meeting was proffered in the absence of support or legal advice. 

1. In short, I consider that this factor is a neutral in all the circumstances. 

5.4      Warnings about unsatisfactory performance

1. As will be evident from the background material, it was not the case that the Respondent sought to rely upon unsatisfactory performance to justify dismissing the Applicant.  The factor is therefore a neutral consideration. 

5.5      Size of the Respondent’s enterprise and dedicated human resource specialists

1. The Respondent business is of a reasonable size, employing or engaging more than fifteen workers.  It appears to have its own internal human resources expertise and evidently has sufficient financial viability to engage external lawyers.  In all circumstances, I do not consider that the size of the Respondent business or its internal human resources capability impacted upon the process followed.  

5.6      Any other matters considered relevant

1. The formulation of ‘harsh, unjust or unreasonable’ calls for an assessment of the gravity of the conduct alleged as the valid reason and assessment of the proportionality of the sanction of dismissal against that conduct, having regard to the fairness of the process leading to dismissal and the consequences for the employee. 

1. The Applicant’s extensive work history, unblemished performance and conduct record are to be considered against circumstances where, regrettably, the Applicant declined to return to the workplace when instructed to do so by the Respondent.

1. As of 3 July 2024, if not before, the Applicant had engaged lawyers and had communicated to the Respondent that he considered he had been dismissed in the meeting of 28 June 2024.  Having adopted that unyielding position, when the Respondent directed the Applicant to return to work on 17 July and 18 July 2024, the Applicant declined to do so, and, in addition, declined to attend a show cause meeting.  It was therefore the case that there was very little that the Respondent could have done in the circumstances, notwithstanding the extensive and unblemished work history of the Applicant.  Having directed the Applicant to return to work, it was open to the Applicant to have returned.  If he had done so, the employment relationship would have remained on foot.  And as it was, the Respondent had continued to pay the Applicant up until 23 July 2024, when ultimately, he was dismissed. 

1. As I have observed in this decision, the Applicant’s refusal to return to work and insistence that he had been dismissed, gave rise to circumstances where his dismissal was inevitable.  The sanction afforded, whilst regrettable given the personal relationship that had existed between Wild and the Applicant and his long tenure with the Respondent business, was not disproportionate.  It is therefore not open to find that the Applicant’s dismissal was harsh, unjust or unreasonable.

1. Conclusion

1. Having considered each of the matters specified in s 387, I am satisfied that the Respondent had a valid reason for dismissing the Applicant based on his conduct and that the Applicant’s dismissal was not ‘harsh, unjust or unreasonable’ as that term is understood by reference to ss 385(b) and 387 of the Act. It follows that the unfair dismissal application is dismissed, and an Order[154] issues concurrently with these reasons for decision. 

DEPUTY PRESIDENT

Appearances:

R Harding for the Applicant
M Baroni for the Respondent

Hearing details:

2024
Perth (by video):
21 October.

Final written submissions:

17 January 2025

[1] Respondent’s Outline of Submissions of 14 October 2024, [25].

[2] Witness Statement of Bhailal Chandulal Shah (BC Shah Statement) [1].

[3] Ibid [8].

[4] Ibid [12].

[5] Ibid [13].

[6] Ibid [25].

[7] Ibid.

[8] Ibid [26].

[9] Ibid [26].

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid [29].

[17] Ibid [42].

[18] Ibid [46].

[19] Ibid.

[20] Ibid [49].

[21] Second Witness Statement of Bhailal Chandulal Shah (BC Shah Statement in Reply) [4].

[22] Ibid [5].

[23] Ibid [8].

[24] Transcript of Proceedings, Bhailal Chandulal Shah v Gastech Australia Pty Ltd (Fair Work Commission, U2024/8423, Beaumont DP, 21 October 2024), [PN297] (Transcript). 

[25] Ibid [PN298].

[26] Digital Hearing Book, 182 (DHB). 

[27] Ibid.

[28] Transcript (n 24) [PN306]. 

[29] Ibid [PN306]. 

[30] Ibid. 

[31] Ibid. 

[32] Ibid [PN309].

[33] Ibid [PN321].

[34] Witness Statement of Mark James Wild [12] (Wild Statement).

[35] Ibid [14].

[36] Ibid [15].

[37] Ibid [19].

[38] Ibid [20].

[39] Ibid [21].

[40] Ibid [22].

[41] Ibid [23].

[42] Ibid [29].

[43] Ibid [30].

[44] Ibid [38].

[45] Ibid.

[46] Ibid [42].

[47] Ibid [44].

[48] Ibid [43], [annexure C]; DHB (n 26) 152.

[49] DHB (n 26) 152. 

[50] Ibid 65.

[51] Ibid 65.

[52] Wild Statement (n 34) [51].

[53] Ibid [52].

[54] Witness Statement of Adrian Burn (Burn Statement) [8].

[55] Ibid [9].

[56] Ibid [AB1]; DHB (n 26) 181.

[57] Burn Statement (n 54) [12].

[58] Ibid [AB2]; DHB (n 26) 182

[59] Burn Statement (n 54) [13]–[16]. 

[60] Ibid [18].

[61] Ibid [19].

[62] Ibid [22].

[63] Ibid [24].

[64] Ibid [25].

[65] Ibid [25].

[66] Ibid [26].

[67] Ibid.

[68] Ibid.

[69] Ibid [27].

[70] Ibid.

[71] BC Shah Statement in Reply (n 21) [4].

[72] Ibid [5].

[73] Ibid [8].

[74] Ibid [9].

[75] Ibid [10].

[76] BC Shah Statement (n 2) [64].

[77] Ibid.

[78] Ibid.

[79] Burn Statement (n 54) [12].

[80] Wild Statement (n 34) [15].

[81] BC Shah Statement in Reply (n 21) [12].

[82] Ibid.

[83] Ibid [13].

[84] BC Shah Statement (n 2) [65].

[85] Ibid.

[86] Transcript (n 24) [PN306]. 

[87] Ibid [PN309]. 

[88] BC Shah Statement (n 2) [66].

[89] Transcript (n 24) [PN324]-[PN325]. 

[90] Ibid [PN502]. 

[91] BC Shah Statement (n 2) [69].

[92] Transcript (n 24) [PN198]-[PN199], [PN201].

[93] Ibid [PN196]. 

[94] Ibid [PN210]. 

[95] Ibid [PN235].

[96] Ibid [PN240]. 

[97] Ibid [PN198]-[PN199], [PN201].

[98] Ibid [PN213].

[99] Ibid [PN233].

[100] Ibid [PN240]. 

[101] DHB (n26) 68.

[102] Ibid 191.

[103] Transcript (n 24) [PN-674].

[104] Ibid [PN970]; Wild Statement (n 34) [30].

[105] Transcript (n 24) [PN988].

[106] Ibid [PN990].

[107] Ibid [PN994]. 

[108] Ibid [PN1134].

[109] Ibid [PN1008].

[110] Ibid [PN1136]. 

[111] Ibid [PN1146]. 

[112] Ibid [PN1147].

[113] Wild Statement (n 34) [43].

[114] DHB (n 24) 152.

[115] Ibid [PN1008]. 

[116] Transport Workers’ Union of Australia v Qantas Airways Ltd [2021] FCA 873, [16]-[17].

[117] Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941.

[118] Ibid [47].

[119] [2018] FWCFB 5.

[120] Mohazab v Dick Smith Electronics Pty Ltd [No 2] (1995) 62 IR 200 (Mohazab).

[121] Mahony v White (2016) 262 IR 221, 228 [23].

[122] Mohazab (n 120) 205.

[123] Transcript (n 24) [PN62]. 

[124] Mohazab (n 120) 205.

[125] (2012) 219 IR 367, 371-2 [14]-[15].

[126] DHB (n 26) 68. 

[127] Ibid 73.

[128] Ibid 76. 

[129] Mr Peter Mihaljlovic v Lifeline Macarthur[2014] FWCFB 1070 [17].

[130] Ibid.

[131] Ibid.

[132] Ibid [42].

[133] Ibid [22].

[134] DHB (n 26) 67-68, 76; BC Shah Statement (n 2) [BCS-4], [BCS-8].

[135] DHB (n 26) 76-77, 79-80, 82-83; BC Shah Statement (n 2) [BCS-8], [BCS-10].

[136] Transcript (n 24) [PN62]. 

[137] Fair Work Act 2009 (Cth) s 381(2).

[138] (1959) 101 CLR 298.

[139] Hyde v Serco Australia Pty Ltd [2018] FWCFB 3989, [102] (Hyde).

[140] Ibid.

[141] (Australian Industrial Relations Commission, Ross VP, Drake DP and Commissioner Cargill, 4 November 1997).

[142] Hyde (n 139) [103]. 

[143] Transcript (n 24) [PN1418].

[144] Selvachandran v Peteron Plastics Pty Ltd (1995) 62 IR 371, 373 (Selvachandran).

[145] R v Darling Island Stevedoring and Lighterage Co Ltd; Ex parte Halliday (1938) 60 CLR 601, 621-2 (Darling Island Stevedoring). 

[146] Ibid.

[147] Briggs v AWH Pty Ltd[2013] FWCFB 3316, [8].

[148] Ibid.

[149] Ibid citing Darling Island Stevedoring (n 145) 622. 

[150] Construction, Forestry, Maritime, Mining and Energy Union & Matthew Howard v Mt Arthur Coal Pty Ltd T/A Mt Arthur Coal[2021] FWCFB 6059.

[151] Ibid.

[152] Royal Melbourne Institute of Technology v Asher (2010) 194 IR 1, 14–15 [26].

[153] Ibid; Osman v Toyota Motor Corporation Australia Ltd (Australian Industrial Relations Commission, Ross VP, Lacy SDP and Commissioner O’Connor, 17 October 2001); Gibson v Bosmac Pty Ltd (1995) 60 IR 1, 7; Selvachandran (n 144) 377-80.

[154] PR783835.

Printed by authority of the Commonwealth Government Printer

<PR783834>