Bierton and Secretary, Department of Jobs and Small Business

This matter concerned an application for an advance under the Fair Entitlements Guarantee Act 2012 (Cth) by an employee of Forge, following the appointment of KordaMentha as receivers and managers. The applicant sought redundancy pay and payment in lieu of notice, contending that his employment had been terminated at the initiative of the employer. The Secretary of the Department of Jobs and Small Business opposed the claim, arguing that the applicant had not been terminated but had voluntarily resigned.

The court was required to determine two primary legal issues: first, whether the applicant was entitled to redundancy pay under section 119 of the Fair Work Act 1999 (Cth) on the basis that his employment was terminated at the initiative of the employer; and second, whether the applicant was entitled to payment in lieu of notice under his contract of employment, which required the employer to bring the employment to an end at its discretion. The applicant argued that the conduct of the employer following the appointment of the receivers had substantially altered his responsibilities and duties, effectively forcing his resignation.

In reaching its decision, the court applied the principle that a termination at the initiative of the employer requires an objective analysis of the employer's conduct to ascertain whether it was of such a nature that resignation was the probable result or that the applicant had no effective choice but to resign. The court referred to the Full Court of the Industrial Relations Court of Australia's decision in *Mohazab v Dick Smith Electronics Pty Ltd (No.2)*, which established that a termination at the initiative of the employer is one where the employer's action is the principal contributing factor leading to the termination, and the employee has not voluntarily left the employment. The court found that KordaMentha had explicitly communicated to the applicant that his employment was not terminated and that his ongoing assistance was required, and that his wages and expenses continued to be paid.

Ultimately, the court affirmed the decision under review, finding that the applicant was not entitled to redundancy pay because his employment was not terminated due to the insolvency of Forge. The court concluded that KordaMentha had specifically required the continuation of the applicant's employment, and that the applicant had voluntarily resigned on 17 March 2014.