Dinh Duc Nguyen v Morf Dynamics Pty Ltd

[2013] FWC 8324

[2013] FWC 8324

FAIR WORK COMMISSION

DECISION

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

Dinh Duc Nguyen
v
MORF Dynamics Pty Ltd
(U2012/16551)

DEPUTY PRESIDENT SAMS SYDNEY, 24 OCTOBER 2013

Application for unfair dismissal remedy - jurisdiction of the Commission - whether employee dismissed at the initiative of employer - employee sought improvement in conditions of employment - employee ultimatum - employer advertised for replacement - employee given notice of termination by employer - employee did not dispute notice - no termination at initiative of employer - application dismissed.

[1] Mr (Tony) Dinh Duc Nguyen (the ‘applicant’) was employed as a Senior Game Developer by MORF Dynamics Pty Ltd (the ‘respondent’ or the ‘Company’) from 1 August 2011 to 7 December 2012. On 7 November 2012, the applicant received a letter from the respondent which, inter alia, said the following:

‘Based on our discussions with you in regards to your employment at MORF Dynamics, we wish to inform you of the Company’s decision to terminate your employment as Senior Game Developer in MORF Dynamics Pty Ltd (the “Company”) effective as of Wednesday 7th November 2012. In addition, we confirm your departure date to be end of business on Friday 7th December 2012.

In your discussions with Management of your future with the Company, you have brought to our attention the following issues:

1. That you are no longer sure of your commitment to your development work in the Company due to your personal ambitions and obligations that may no longer lie in both our interests:

2. That you are no longer edified nor motivated by the tasks you have to perform in the Company due to your own personal assessment of the success and viability of the projects and products you are developing in the Company;

3. That you are interested in pursuing other projects and challenges that interest you such as a Game Developer position with the “Mad Max” film project.

4. That you feel you are inadequately remunerated for your position due to your personal commitments.

As a result, you had offered the Company 3 options:

1. For you to work part time with the Company in the same position and same salary in order to have the time to pursue other projects;

2. For you to leave the Company entirely as you have other potential opportunities that you wish to pursue;

3. For the Company to increase your annual salary to $80,000+

After considerable deliberation of these issues brought forward, we regrettably have decided to let you go and terminate your employment with the Company. We understand that each employee will have their own personal ambitions and interests in pursuing a variety of opportunities and we totally support your desire to pursue other projects and interests in pursuing a variety of opportunities and we totally support your desire to pursue other projects that will edify you greater. Unfortunately, we are unable to meet your expected salary.

This letter serves you 4 weeks’ notice from the date of this letter and also reminds you of your ongoing non-disclosure obligations. Kindly execute in the appropriate spaces provided at the bottom of this letter. The purpose of this letter is for you to confirm that we have advised you with respect to your termination and departure from the Company and your continued obligations with respect to all proprietary information wholly and solely owned by MORF Dynamics Pty Ltd.’

[2] Despite giving four weeks notice of termination, the applicant ceased work on 9 November 2012, for reasons that I will come to shortly. On 10 December 2012, the applicant lodged a claim for a remedy for unfair dismissal, pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’). Unsurprisingly, the respondent lodged an objection to the application proceeding on the grounds that his application was lodged ‘out of time’ pursuant to s 394(1) of the Act (at that time, the time limit was 14 days).

[3] The ‘out of time’ application was listed for hearing on 5 April 2013. Roberts C found that the applicant’s dismissal was within the 14 day time period or alternatively, ‘exceptional circumstances’ were established to accept the application out of time; See: s 394(2) of the Act. The matter was remitted to the Unfair Dismissal Unit and reallocated to me for arbitration.

[4] It is apparent that there remains a further jurisdictional issue to be determined. That is, whether the applicant’s termination of employment was at the employer’s initiative or whether he left the respondent’s employ of his own accord by effectively resigning. This will require the Commission to establish that the applicant was dismissed for the purposes of s 385 of the Act. I shall return to the relevant statutory provisions relevant to that question in due course.

[5] The applicant seeks nine weeks compensation for the period he was unemployed. It was agreed that the applicant’s salary at the time of the termination of employment was $70,000pa.

EVIDENCE

[6] The following persons provided written and oral evidence in the proceeding:

For the applicant

• Mr (Tony) Dinh Duc Nguyen, the applicant.

For the respondent

• Mr (Robert) Chin Meng Fong, Chief Operating Officer; and



• Mr Lukie Ali, Group Technology Director.

The applicant

[7] The applicant said that on 7 November 2012, he received a Notice of Termination letter from Mr Fong, the then CEO of the respondent, informing him that his employment with the respondent had been terminated after his request for a salary increase was declined (see para [1]).

[8] On the following day, 8 November, the applicant sent a letter to Mr Fong as follows:

‘Hi Rob,

In response to receiving the Notice of Termination of Employment, I’ve submitted an Unfair Dismissal Claim to Fair Work Australia.

The dismissal is unfair because:

- I remain committed to the project on which I am a high performer and a driver of performance in colleagues.

- It is not due to misconduct.

- it is the response to a reasonable salary request.

As a professional, I would like to see the project to the end.

To avoid a Fair Work Australia conciliation and/or hearing I offer these resolutions:

1) Retract the termination

OR

2) A three month severance package. This is in addition to completion of the current notice period and the annual leave balane [sic].


I found the following links informative on the Unfair Dismissal process:

...

Regards,

Tony’

[9] On 9 November 2012, the applicant was called into a meeting with Mr Fong, Mr Ali and Mr Seiji Xiang (the respondent’s Local Operations Manager (Sydney)) where he was told that he was to be immediately escorted out of the building, that his notice period was revoked and that any outstanding salary and annual leave was to be withheld indefinitely. On the same day, the applicant sought new employment. However, he was unable to find alternative employment until 11 February 2013 when he commenced in a position as a Software Engineer with MicroForte.

[10] On 4 April 2013, the day before the extension of time hearing, the applicant received a deposit of $6,443.85 from the respondent into his bank account, which was described as ‘Notice Period’. The applicant contended that the respondent provided pay slips in a piece-meal fashion and that the pay slips did not include details in respect of his annual leave balance.

[11] In cross-examination, the applicant denied that, during a conversation in September 2012 (the ‘September conversation’), he had said to Mr Fong that he was no longer interested in working for the respondent and that he wanted to pursue other opportunities which interested him. However, he had asked for a salary increase of $10,000pa because he believed he was being underpaid. He conceded that he had spoke of other projects which interested him when Mr Fong and Mr Ali had asked him if he had ‘looked elsewhere’. The applicant admitted that he was interested in working on the ‘Mad Max’ project at the time, as it was in line with his profession and that getting into a project had ‘always been a factor’ for him. However, he denied that he wanted to leave the company to work on that, or any other specific project.

[12] When asked specifically about the question of whether the September 2012 conversation was motivated by salary, the applicant replied: ‘It wasn’t more the fact. It’s always a combination of facts’. Later, the applicant said: ‘[the salary increase] would’ve resolved the issue at the time...’

[13] The applicant was cross-examined on the ‘three options’ that he had allegedly provided to Mr Fong and Mr Ali, namely, (1) leaving the company to pursue work that would interest him and match his salary expectations; (2) to work part-time for four days a week, without a reduction in salary; and (3) a salary increase of $10,000. The applicant rejected Mr Fong’s recollection of the conversation and stated that he had only offered the last two options. He denied providing Mr Fong and Mr Ali with the option of leaving the company and pursing other opportunities. Rather, it was Mr Fong and Mr Ali who had suggested the option of him leaving the company to pursue his other interests.

[14] In rejecting this option, the applicant claimed that ‘there was no outcome at... the meeting in September’. He denied that he had agreed to explore his options and for his position to be filled by someone else. The applicant conceded that he was aware of a job advertisement for a programmer role, but said he was ‘never aware that it was for [his] position’. The applicant could not recall any conversations he had had with Mr Ali or Mr Fong about advertising for his position.

[15] It was put to the applicant that he had replied ‘thanks Anne, you’ve been very helpful’ to Ms Anne Tung, the respondent’s HR Administrator, when she had emailed the Notice of Termination of 7 November 2012. The applicant explained that Anne had been very helpful during his time with the respondent and that he ‘didn’t know how to respond at that point in time. So all [he] could do was thank Anne for being the communication person...’

[16] The applicant claimed that on the night of 7 November 2012, he came to the realisation that he had been unfairly dismissed and consequently sent his email of 8 November 2012 (see para [8] above). He stated that he was ‘in the process’ of submitting his unfair dismissal application with the Commission and had not already submitted it at that point.

Mr Fong’s evidence

[17] Mr Fong stated that the applicant was employed on 1 August 2011 under an employment agreement. Clause 10 of that agreement specifies that termination of the Agreement can be effected by either party through giving four weeks written notice or by the respondent making a payment of four weeks remuneration in lieu of notice.

[18] Mr Fong claimed that the applicant approached him and Mr Ali in September 2012 and informed them that:

• he was not satisfied with his work and pay;
• he was looking for an opportunity elsewhere;
• he had already shown interest in the George Miller production, ‘Mad Max’;
• the respondent needed to provide him with a salary increase of at least $10,000;
• if the salary increase was not met, then he was prepared to work part-time without a reduction in pay.

[19] To these proposals, Mr Fong replied with words to the following effect:

‘The company can’t afford to give you a salary increase at this stage and unfortunately we require you to work full time. In any event, we review all salaries during the annual review process and as you are not due to for annual performance review as yet, we cannot comply to your immediate requests. If you already unhappy with your work at Morf, and we cannot increase your salary, would you look for work elsewhere?’

[20] Mr Fong’s statement alleged that the applicant replied: ‘Yes I would. That’s fine. MORF should start looking for a replacement’.

[21] Mr Fong recorded that as a result of the September conversation the respondent began to advertise for the applicant’s replacement. He also believed that the applicant was kept informed of the progress of the recruitment process, through verbal updates from Mr Ali.

[22] In cross-examination, Mr Fong deposed that immediately after the September conversation, the respondent commenced a recruitment process to find a suitable replacement for the applicant. He explained that the respondent could not afford the wage increase sought by the applicant. They had kept the applicant informed of the recruitment process ‘all the way up to the point where [they] had someone pass second round interview and was about to be confirmed’. Mr Fong stated that he and Mr Ali spoke to the applicant on a ‘almost weekly, fortnightly basis’ as the process was going on and the applicant had raised no objections to the process.

[23] Mr Fong also stated that prior to the September conversation, the respondent had no intention of dismissing the applicant and had, to the contrary, intended to make him a senior team member because his ‘contribution was fantastic’. Upon hearing that the applicant was no longer interested in his position, Mr Fong believed he had ‘no choice but to replace [his] position’. He said there was no warning given to the applicant, because there was no reason to do so.

[24] Mr Fong was strongly of the view that the respondent had met all its legal obligations. He was absolutely shocked when the applicant informed him he had filed for unfair dismissal because of the communications between them and the understandings they had earlier reached. He said ‘we informed you we were advertising for the position... this is a standard termination. We gave you your four weeks’ notice period which was as part of your contract. We have fulfilled every obligation that we’ve had as per your contract...’ Mr Fong said he could not accept a retraction of the arrangements as another person had been engaged to fill the position. When questioned by the applicant on why he was not paid his annual leave and notice pay when he was terminated, Mr Fong said that the applicant has now been paid in full. He explained that he had wanted to wait until the conclusion of the conciliation process before making further payments to the applicant.

Mr Ali’s evidence

[25] Mr Ali’s statement provided a similar, but more detailed account of the September conversation. Of particular note is the following passage in which the applicant allegedly said:

‘My issue is not simply related to money. I have other interest/opportunities I would like to pursue. I am interested to work on the new Mad Max movie with George Miller’s studio.’

[26] Mr Ali also set out two further conversations, which he alleged took place between himself and the applicant. The first of these occurred in or about early October 2012 as follows:

Mr Ali: We will need to start looking for a staff member to fill your position.

Applicant: That is fine. You should go ahead.

The second conversation allegedly took place in or about mid October 2012 as follows:

Mr Ali: We have found a few short-list candidates. What is your current position? Have you changed your mind? Do you wish to stay at MORF?

Applicant: I will stay until our latest release is complete. After that, if MORF wanted to keep me, MORF will have to give me a pay rise.

Mr Ali: MORF’s position on the pay rise has not changed. If we find a suitable candidate, then we will need to give you notice so you can arrange your handover and departure.

Applicant: That is fine.

[27] In cross-examination, Mr Ali stated that the respondent advertised for the applicant’s replacement, ‘within a few days’ of the September conversation. Mr Ali accepted the applicant was not involved in the interviews. In essence, Mr Ali reiterated what he had recorded in his statement - that is, after the candidates were short-listed he spoke with the applicant to confirm that the applicant was still intent on leaving the Company. The applicant had responded by stating that if the Company could not meet those two conditions (a salary increase or a four day week), then it was in the Company’s interests to continue with the recruitment.

SUBMISSIONS

For the applicant

[28] The applicant’s submissions filed on 4 May 2013 were not ‘submissions’, but rather represented the applicant’s witness statement, the contents of which have been outlined above.

[29] During the hearing, the applicant was invited to make additional oral submissions. He stated that he had remained committed to the respondent and believed that he was a high performing employee. He was surprised and shocked by the Notice of Termination letter and felt that he had been harshly dealt with. When he was ‘shown the door’, all further communication between him and Mr Fong and Mr Ali ceased.

[30] The applicant also complained of the lack of information provided to him by the respondent in respect of his annual leave and pay entitlements. After his dismissal, he continued to email the respondent in order to obtain these details. When the respondent made the deposit into his account on 4 April 2013, he was not provided with a payslip or any information in relation to superannuation or taxation. He was still unsure of the details of his entitlements and whether the respondent still owed him payments to that effect. He felt that he was simply ‘kicked out the door’.

For the respondent

[31] The first section of the respondent’s submissions dealt with questions of the ‘extension of time’ issue. It is unnecessary to refer to it.

[32] However, paras 7 and 8 of the respondent’s submissions were as follows:

’7. The respondent accepts that the Commission’s discretion to find against the respondent for unfair dismissal is broad however it is the respondent’s submission that there is no basis for a claim for unfair dismissal for the following reasons:

a) It was the applicant himself who instigated the process by approaching management stating he was unsatisfied with his work and with his pay and was looking for opportunities elsewhere;

b) The applicant sought a revised contract with a $10,000.00 salary increase;

c) When the respondent declined, the applicant said that the respondent should start looking for a replacement, which it did.

d) At all times, the applicant was kept informed of the process of finding a replacement.

e) The replacement was only sought for and located because the applicant left the respondent with a binary choice, replace him or yield to his demands for a revised contract;

f) Any complaint that the applicant had trouble finding alternative employment during that period is one of his own creation as he must have known that he ran that risk when he presented his ultimatum for a revised contract;

g) The applicant is the author of his own difficulties. For that reason it is submitted [there was] no unfair dismissal.

h) Since commencing this proceeding, the applicant has sent an email copying a large amount of people in which he makes the defamatory allegation that both the respondent and its chief executive office, Robert Fong, drives behaviour that is dishonest and does not align with the ethics and codes of conduct. A concerns notice and a request for an apology have been ignored by the applicant and there has not been the courtesy of any response.

8. For these reasons, the applicant’s claim should be dismissed with costs.’

[33] In further oral submissions, Mr Fong said that he was disappointed that the respondent had been dragged into this affair because as far as they were concerned, it had been very clear and forthcoming. The respondent had been in close communication with the applicant from the time the applicant approached him and Mr Ali with his concerns.

[34] Mr Fong stressed that the respondent had a clear position that it was not able to pay the salary increase requested by the applicant. Mr Fong submitted that it was proper for the respondent, when faced with a dissatisfied employee looking for other opportunities, to arrive at the view that the staff member was no longer committed to the Company and that it should look for a replacement. Mr Fong was of the view that the applicant’s unfair dismissal claim was financially motivated, as the applicant was aware that his position was to be replaced, when the respondent rejected his demands.

CONSIDERATION

[35] Both parties were unrepresented in this case and, unsurprisingly, the proceeding was conducted in a less than formal way. However, I am satisfied that both parties put whatever they believed was necessary to support their respective positions in the case. I am further satisfied that neither party suffered any disadvantage from being unrepresented. To the extent necessary to ensure a semblance of fair and orderly procedure, the Commission assisted both parties by directing their attention to relevant matters; See: Davidson v Aboriginal & Islander Child Care Agency (1998) 105 IR 1.

Statutory framework

[36] By virtue of the interaction of the provision of ss 382, 385 and 396 of the Act, for the applicant to have any unfair dismissal rights, he must be a person protected from unfair dismissal and he must have been dismissed by the employer. These sections are set out as follows:

‘382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.

...

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

...

396 Initial matters to be considered before merits

The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:

(a) whether the application was made within the period required in subsection 394(2);

(b) whether the person was protected from unfair dismissal;

(c) whether the dismissal was consistent with the Small Business Fair Dismissal Code;

(d) whether the dismissal was a case of genuine redundancy.’

[37] I do not understand there to be any dispute that the applicant was a person protected from unfair dismissal in that:

• he was found to have lodged his application within the then statutory time period (s 396(a));
• he had completed the minimum employment period of at least six months (s 382(a));
• his annual rate of earnings was below the high income threshold (s 382(b)(iii). I note the applicant was employed pursuant to a contract of employment he signed on 3 August 2011;
• his termination of employment was not a case of genuine redundancy (s 385(d));
• the Small Business Fair Dismissal Code did not apply as the respondent employed 17 employees.

[38] The more problematic question is, of course, whether the applicant was actually dismissed by the respondent, or, as contended for by the respondent, there was a degree of mutuality surrounding the applicant’s termination of employment which disclosed no dismissal at the employer’s initiative or it having been brought about by the conduct of the employer.

[39] The meaning of ‘dismissal’ has a legislative basis in s 386 of the Act as follows:

‘386 Meaning of dismissed

(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.’

[40] The definition of ‘termination at the employer’s initiative’ was considered by a Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205. This case has often been referred to by industrial tribunals, in a line of consistent authority since 1995. I cite the following extract:

‘Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression “termination at the initiative of the employer” as a reference to a termination that is brought 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”: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process.

...

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour at p 3, referred to the situation of an employee who resigned because “he felt he had no other option”. His Honour described those circumstances as:

“... a termination of employment at the instance [of] the employer rather than of the employee.”

And at p 5:

“I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions that constituted a termination of the employment.”’

[41] I have also found the observations of the Full Bench of Fair Work Australia (as it then was) in Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670 apposite to the circumstances of this case. At paras [19]-[23], the Full Bench said:

‘[19] Section 642(4) of the WR Act provides:

(4) for the purposes of this Division, the resignation of an employee is taken to constitute the termination of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.

[20] Section 642(4) has no application in this case because it only has application where an employee has resigned. The appellant did not resign her employment: at all times she was objecting to the prospect that her employment would be terminated and was seeking to contest the respondent’s decision or apparent decision that her employment should be terminate either by resignation or dismissal. The appellant’s discussion with Ms Romanelli seeking a reference was predicated on the respondent terminating her employment.

[21] This case is properly analysed by reference to principles of repudiation. In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd,Gleeson CJ, Gummow, Heydon and Crennan JJ noted:

“The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. … Secondly, it may refer to any breach of contract which justifies termination by the other party. … There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.

In the past, some judges have used the word "repudiation" to mean termination, applying it, not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided.”

(footnotes omitted)

[22] As is apparent from this extract, the test for intention is not a subjective one depending on the actual intention of the repudiating party. Intention is to be judged from what the other party reasonably infers from the actions or words of the party who is alleged to have repudiated the contract.

[23] A repudiation of a contract does not automatically terminate that contract. Rather, the contract comes to an end only when the other party elects to accept such repudiation. Such acceptance may be by words or conduct. The learned authors of Macken’s Law of Employment note that acceptance of a repudiation may be easily inferred.’

[footnotes omitted]

CONCLUSIONS AND FINDINGS

[42] It seems to me that the outcome of this case hinges on whose version of the evidence is to believed as the more credible or likely to have occurred during the period September to November 2012. The key elements of the evidence are:

(a) whether the applicant had effectively given an ultimatum to the respondent that unless the Company agreed to pay him an extra $10,000 or make him part time, he would be looking for alternative positions which interested him.

(b) whether the applicant was consulted during the process of recruitment of his replacement and did not dispute the respondent’s intention to do so.

(c) whether the notice of termination of 7 November 2012 was a true reflection of the mutuality of the termination of employment.

(d) whether it was open to the respondent to bring forward the applicant’s final day of work and pay him four weeks notice when the applicant advised the respondent he had lodged an unfair dismissal claim.

[43] There can be no doubt the applicant was dissatisfied with his salary and that he had directly put two proposals to Mr Fong and Mr Ali to address his dissatisfaction. These were to increase his salary by $10,000pa or for him to work part time for the same salary. He denied having put a third option, of leaving the Company entirely to pursue other opportunities of interest to him.

[44] For my part, I have difficulty accepting that the applicant had not put this third option to the respondent as a means of ‘forcing their hand’ to increase his salary. This was, in effect, an ultimatum. While it was obviously and understandably not couched in such explicit language, it seems clear that this was the effect of him mentioning to Mr Fong and Mr Ali that he had been looking at other projects which interested him. He even mentioned the ‘Mad Max’ project of Director, George Miller. After all, why would the applicant raise the other interests, at all, if it was not a subtle hint that unless his salary was increased, he would be looking elsewhere. It must also be remembered that the respondent believed he was doing a ‘fantastic job’ and was intending to promote him. I have no reason to doubt this submission. Given these circumstances, it makes no sense at all for the respondent to want to get rid of him. Nevertheless, the respondent rejected the applicant’s claim for a salary increase or part time work. It then proceeded on the understanding that the applicant intended to carry out the ultimatum. A recruitment process for a replacement was set in train.

[45] It was Mr Ali’s evidence that from September through October, he had verbally informed the applicant of the recruitment process and he had expressed no objection or regret at what was occurring to fill his job. Mr Ali also said that when a shortlist of candidates emerged, he even asked the applicant if he still intended to leave the Company. The applicant told him that unless he received the pay rise, he would. When Mr Ali said that the respondent’s position had not changed and it would need to give him notice and arrange a handover, the applicant had replied, ‘That’s fine’.

[46] The applicant acknowledged that he knew of a job advertisement being placed, but not for his position. Significantly, however, the applicant did not expressly deny the conversations with Mr Ali. Rather, his evidence was that he could not recall having any conversation with Mr Ali or Mr Fong about his replacement or the recruitment process. Considering the context of the conversation in September, I am more inclined to accept the evidence of Mr Ali in this respect. It has a ‘ring of truth’ about it.

[47] I find that the applicant was advised of the respondent’s recruitment of his replacement and expressed no opposition, dissatisfaction or regret at the course proposed by the respondent. I am satisfied that the applicant had every intention of leaving the respondent’s employ.

[48] I am fortified to my conclusion by the curious and meekly accepting reply to the Notice of Termination letter sent by Ms Tung. I do not accept the applicant’s explanation that he was merely thanking Ms Tung as he always did when she had communicated information to him. It seems incredible that after receiving the very detailed and explicit letter of 7 November 2012, that the applicant’s response was to thank Ms Tung for being helpful, rather than query, at the very least, what all this was about. I believe that the applicant’s response demonstrated his complete understanding of the factual position at the time, which was as he and the respondent had intended it to unfold.

[49] It was then that the relationship began to get a little nasty. The very next day, the applicant advised the respondent by email that he had submitted an unfair dismissal claim to Fair Work Australia (as it then was). He offered to settle this claim by either a retraction of his termination or a three month severance package, in addition to his notice of four weeks.

[50] Unsurprisingly, the respondent’s reaction was swift and final. It revoked the notice period, but withheld the notice payment and had the applicant escorted off the premises. The applicant explained that he had not already submitted an unfair dismissal claim prior to the night of 7 November, but was in the process of doing so (This must strictly be correct because the application was not lodged until 10 December 2012). However, the respondent was entitled to take the view that the applicant had already done so, by the express use of the past tense expression, ‘I’ve submitted an unfair dismissal claim to Fair Work Australia’.

[51] It is also possible that the wording was deliberately intended to convey the impression the claim had been lodged and the respondent would be required to react. This possibility seems consistent with the offers in the email to settle the claim made immediately thereafter. Given the seemingly early understanding of what was to take place, while the respondent’s hostile reactions were perhaps to be expected, it was nevertheless wrong for it to withhold the applicant’s notice payment or any other outstanding statutory entitlements.

[52] On one view of it, the meeting of 9 November 2012, reinforced by the applicant being escorted off site, had all the hallmarks of a dismissal. However, I do not consider it was anything more than the respondent moving the agreed position reached between itself and the applicant forward, for which it was required to pay the notice period earlier advised. It was also consistent with the contract of employment. It was not a dismissal in the conventional sense. That said, it was regrettable that it reacted angrily to what it believed was the applicant himself bringing his employment to an end, by lodging an unfair dismissal claim.

[53] Even if I am wrong about the respondent’s conduct of 9 November 2012 not constituting a termination of employment at the employer’s initiative, I have no doubt the contract would have been mutually brought to an end at the expiry of the notice period (7 December 2012). As the notice period was eventually paid in lieu, it would be difficult to establish a foundation for a successful unfair dismissal claim.

[54] For all the aforementioned reasons, I am satisfied that the applicant’s termination of employment was mutual. There was no dismissal by the respondent. There was no conduct of the respondent which evinced an intention that it sought or desired the applicant’s termination of employment. It follows that there was no dismissal of the applicant in accordance with s 385 of the Act. There is no jurisdiction invested in the Commission to determine this application. It must be dismissed. An order to that effect will be issued concurrently with this decision.

[55] Any application for costs must be made in accordance with ss 400A and 402 of the Act. However, while I note that neither party was represented in the proceeding before me, Mr Fong claimed he had sought and obtained legal advice in respect to the matter. Presumably, this was the basis of him foreshadowing costs against the respondent in his submission.

DEPUTY PRESIDENT

Appearances:

Applicant in person.

Mr R Fong for the respondent.

Hearing details:

Sydney:

2013.

2 September

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