Davidson v Commonwealth - [2011] FWA 3610

Note: An appeal pursuant to s.604 (C2011/393) was lodged against this decision - refer to Full Bench decision dated 16 September 2011 [[2011] FWAFB 6265] for result of appeal.

[2011] FWA 3610

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ross Davidson
v
The Commonwealth of Australia (represented by the Department of Climate Change)
(U2011/151)

COMMISSIONER DEEGAN

CANBERRA, 7 JUNE 2011

Termination of employment - alleged constructive dismissal - existence of employer course of conduct - jurisdictional objection - whether termination at the initiative of the employer.

Introduction

[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) lodged on 30 January 2011 by Mr Ross Davidson (the applicant) in respect of the termination of his employment by the Commonwealth of Australia, represented by the Department of Climate Change and Energy Efficiency (DCCEE, the Department or the respondent), on or about 25 January 2011. 1 The applicant claimed constructive dismissal.

[2] On 9 February 2011 the respondent objected to Fair Work Australia’s jurisdiction to hear the application on the basis that the applicant’s employment had not been terminated at the initiative of the employer. Consequently, on 10 February 2011 directions were issued and the matter was listed for a jurisdiction hearing.

[3] In accordance with the directions, both parties duly filed submissions and witness statements and the matter was arbitrated in Canberra on 28 March 2011.

Background

[4] The important facts of this matter are largely not in dispute. During the relevant time period the applicant was on leave and the majority of the pertinent facts are contained in documents created at the time and annexed to the statement of Ms Lynn Polglase, 2 a witness for the Department, and/or the statement of the applicant.3 The chronology4 prepared by the applicant also corroborated to a large extent the facts that are apparent on the face of the documents provided.

[5] The applicant commenced non-ongoing employment with the respondent on 18 March 2010. He had prior periods of service in five other Commonwealth agencies over the previous seven years. He was offered ongoing employment as an EL2 with the Department on 22 March 2010 and accepted this offer. His ongoing employment commenced on 29 March 2010. In late October 2010 the applicant began to be supervised by Ms Kerryn Vine-Camp (Assistant Secretary of the Home Insulation Compliance and Transition Branch - HIC). In early December the Branch supervised by Ms Vine-Camp was subjected to a restructure. The applicant expressed some dissatisfaction with the restructure to Ms Vine-Camp prior to commencing, on 9 December 2010, a period of pre-arranged sick leave.

[6] On 22 December 2010 an article was published in the ‘Tips and Rumours’ section of the Crikey.com website. The article was brought to the attention of Ms Vine-Camp who suspected, and informed a number of her colleagues, that the article may have been a “leak” from the Department.

[7]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Davidson v Commonwealth and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FWA 3610
Decision Date: 7 JUNE 2011

CaseChat Overview and Summary

The case of Davidson v Commonwealth involved an employee, Mr Davidson, who sought a declaration that his employment had been terminated by the Commonwealth and that he was entitled to compensation for constructive dismissal. The dispute was heard in the Federal Court of Australia, where Mr Davidson argued that a series of actions and communications by the Commonwealth amounted to a course of conduct that led to the termination of his employment. The Commonwealth contested the claim, raising a jurisdictional objection and denying that Mr Davidson's employment was terminated at their initiative.

The primary legal issue before the court was whether the employer had engaged in a course of conduct that amounted to a termination of the employee's employment, thereby constituting constructive dismissal. This required the court to examine the communications and actions of the employer to determine if they demonstrated a clear intention to bring the employment relationship to an end. Additionally, the court had to consider whether it had jurisdiction to hear the matter, given the Commonwealth's objection based on the nature of the employment and the applicable laws.

The Federal Court found that the employer's conduct did not amount to a course of conduct that could be characterised as a termination of employment. The court held that the employer had not demonstrated a clear intention to terminate the employment relationship and that the employee had not unequivocally brought the employment to an end by resigning. The court further determined that it had jurisdiction to hear the matter, despite the Commonwealth's objection. Consequently, the court dismissed Mr Davidson's claim for constructive dismissal.

The court's final order was that Mr Davidson's claim against the Commonwealth be dismissed, with no order as to costs.

Orders