Gregory Jeffs v Department of Human Services T/A DHS

[2019] FWC 8255

[2019] FWC 8255

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Gregory Jeffs
v
Department of Human Services T/A DHS
(U2018/9490)

DEPUTY PRESIDENT KOVACIC CANBERRA, 5 DECEMBER 2019

Application for relief from unfair dismissal – jurisdictional objection – Applicant not dismissed – jurisdiction objection upheld – application dismissed.

[1] Mr Gregory Jeffs (the Applicant) lodged an application under s.394 of the Fair Work Act 2009 (the Act) which was received by the Fair Work Commission (the Commission) on 14 September 2018 alleging that he had been unfairly dismissed by the Department of Human Services T/A DHS (DHS – the Respondent) on 28 August 2018.

[2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection, claiming that Mr Jeffs had resigned from his employment voluntarily and was therefore not dismissed within the meaning of s.386(1) of the Act.

[3] It is not disputed that on 14 August 2018 Mr Jeffs gave two weeks’ notice of his intention to cease employment on 28 August 2018. However, in his application Mr Jeffs stated inter alia that:

“I was compelled to separate from DHS because of their requirement that I adhere to observed DHS ethics and conduct. The practices of the organisation do not accord with its published documents and other government issued information. Their displayed culture and practices are at total odds with reasonable workplace requirements … The practices and actions of DHS and the requirement that I participate in them have forced my separation.” 1

[4] In short, Mr Jeffs contends that he was forced to resign because of the Respondent’s conduct and that he had therefore been dismissed as per s.386(1)(b) of the Act.

[5] The matter was heard in Canberra on 14 and 15 February 2019. The hearing dealt with both the Respondent’s jurisdictional objection and the merits of Mr Jeffs’ unfair dismissal application. At the hearing Mr Jeffs gave evidence on his own behalf, while evidence for the Respondent was given by:

•  Ms Kari Ahmer, National Manager, Financial Services Branch in the Chief Financial Officer Division (CFOD);

•  Mr Anthony Wicks, Director, Funding Model and Strategic Reporting Team in the Financial Services Branch and Mr Jeffs’ supervisor at the time his employment ceased; and

•  Mr Rohan Wong, formerly National Manager – Group Financial Management (Mr Wong retired from the Australian Public Service (APS) in late October 2018) and Mr Jeffs’ Branch Manager prior to Mr Jeffs moving to Ms Ahmer’s Branch.

[6] For the reasons outlined below I have found that Mr Jeffs was not dismissed by the Respondent but that he resigned from his employment and that his resignation was not the result of a course of conduct by the Respondent intended to bring Mr Jeffs’ employment to an end. Accordingly, Mr Jeffs’ unfair dismissal application is incompetent and is therefore dismissed.

Background

[7] Mr Jeffs commenced employment with the Department in June 2003. At the time his employment ceased Mr Jeffs was an APS Level 6 employee in the CFOD. From around 2005 until late 2016 when Mr Jeffs commenced an extended period of leave after having transferred to the Financial Services Branch of the CFOD in October 2016 he was responsible for the production of a regular staffing report known as the Almanac.

[8] The events leading up to the cessation of Mr Jeffs’ employment can be traced back to 2013-2014 when during an extended period of leave Mr Jeffs was contacted while overseas and asked if he was interested in a voluntary redundancy. Mr Jeffs advised that he had no interest whatsoever in a voluntary redundancy.

[9] On his return to work in early 2014 Mr Jeffs met with Mr Wong. Mr Jeffs contended in his application that Mr Wong suggested that he contact him if he “needed to get out”. 2

[10] In the ensuing period, the work associated with the production of the Almanac by Mr Jeffs declined in circumstances where consideration was among other things being given to transferring the work to the Respondent’s human resources area. Mr Jeffs contends that he was not informed of the reasons for the decline in his work.

[11] In circumstances where it was anticipated that production of the Almanac would cease on 30 June 2015, Mr Jeffs approached Mr Wong in late June 2015 to follow up on what he considered to be the abovementioned invitation. While what was said in their discussion is disputed, it is not disputed that Mr Wong indicated to Mr Jeffs that he would need to discuss the possibility of a voluntary redundancy for Mr Jeffs with the Chief Financial Officer (CFO) as it was the CFO who had the authority to approve such an offer.

[12] On 2 July 2015 Mr Wong advised Mr Jeffs that he would not be offered a voluntary redundancy. Mr Wong’s email to Mr Jeffs included the following:

“I have discussed workload with both Russell and Anthony [Mr Jeffs’ supervisor and pastoral care manager respectively] and considered this in the context of VRs and whether I can relinquish the position, then discussed with the CFO.

It’s my understanding from Russell that the Almanac is still required by the Department until HR establishes a suitable capability in SAP to replace it. Russell also advises that he has work he needs done regarding SAP and the EDW which he would like you to undertake. The Department is not currently undertaking any VR activity from what I understand and I’m not prepared at this point to relinquish the position.

I have discussed your request and my views with the CFO and he agrees that the role continues.

I’m happy to discuss if you need and I suggest you touch base with Russell for guidance on the work he requires.” 3

[13] In September 2018 Mr Jeffs applied for a reduction in his working hours to 30 hours per week and in January 2016 he applied for studies assistance. Both requests were approved.

[14] In a meeting with Messrs Wong and Perry on 2 March 2016 Mr Jeffs raised a number of concerns, including that there had been a gradual reduction in his workload which had occurred without any explanation. Mr Jeffs also expressed the view that he should have been made redundant in July 2015. In response, Mr Wong indicated that there was other work that could be made available if Mr Jeffs was underutilised and asked him to provide his curriculum vitae (CV) to assist in identifying other appropriate work opportunities. Mr Jeffs declined to provide his CV.

[15] The very next day Mr Jeffs applied to reduce his hours of work to 10 hours/one day per week. The request was not approved, with Mr Jeffs advised of the decision by Mr Wong in an email dated 21 March 2016. Mr Wong’s email read as follows:

“I have considered your request to alter your current part-time arrangement of 0.8 FTE to one day per week and discussed with the CFO and SES colleagues resource requirements in the CFO Division to meet current and future workload.

There are several areas in the Division requiring assistance in an ongoing and/or project-type capacity, therefore, I’m unable to agree to reducing your part-time arrangement.

The roles range in skills from SAP, data mining and analysis, shared services to management accounting and I am keen to ensure that opportunities for you are meaningful and an appropriate fit for your skill set. To facilitate this my colleagues and I would like a copy of your CV to inform consideration of opportunities for you.” 4

[16] The decision sparked an exchange of emails between Mr Jeffs and Mr Wong. In one of his emails Mr Wong advised Mr Jeffs that he could seek a review of his decision under s.33 of the Public Service Act 1999 (the PS Act). Mr Wong did not pursue such a review.

[17] In the ensuing period the relationship between Mr Jeffs and Mr Wong deteriorated such that in September 2016 a decision was made to transfer Mr Jeffs to Ms Ahmer’s Branch, with Mr Wicks to be his supervisor. The transfer took effect in late October 2016 with Mr Jeffs’ immediate task focussed on handing over the preparation of the Almanac so that he could take an extended period of leave over the period 6 February to 29 November 2017.

[18] Prior to Mr Jeffs’ return to work Mr Wicks contacted Mr Jeffs. In that call Mr Jeffs stated he had continuing concerns about the events that had previously occurred, that he considered his treatment amounted to a constructive dismissal and that he was not going to resign.

[19] On 8 December 2017 a meeting involving Mr Jeffs, the CFO, a representative from the Respondent’s human resources area and Ms Ahmer was unsuccessful in addressing Mr Jeffs’ concerns. Subsequent correspondence between Mr Jeffs and the human resources representative who attended that meeting also failed to satisfactorily address his concerns.

[20] Mr Jeffs was absent on personal leave from 11 December 2017 to 2 February 2018. On his return to work on 5 February 2018, Mr Jeffs met with Mr Wicks to discuss the development of his Individual Performance Agreement (IPA). Mr Jeffs subsequently submitted his proposed IPA to Mr Wicks. In the section of the IPA headed Ethics and Culture, Mr Jeffs commented “[t]his will require navigating a pathway between the written material and the demonstrated practices within the Department.” 5

[21] On 19 February 2018, Mr Jeffs requested that his part-time hours be reduced to two 10-hour days per week. The request was approved.

[22] On 7 August 2018, Mr Wicks met with Mr Jeffs to finalise his annual performance review for 2017-2018. Mr Jeffs contends that in the course of that discussion he requested that Mr Wicks obtain the name of the person in the Respondent’s human resources area that endorsed the Secretary’s decision to refuse his 2016 request to reduce his hours of work to one day per week. This is disputed by Mr Wicks.

[23] On 14 August 2018, the Applicant approached Mr Wicks at the photocopier. While what was said is disputed, it is not disputed that in the course of their discussion Mr Jeffs went to his desk and retrieved a document which he handed to Mr Wicks. The document was Mr Jeffs’ letter of written notice. The letter, which was addressed to the Secretary of DHS, stated:

“It is improper to compel me to comply with ethics and culture as practised by the Department of Human Services.

Accordingly, my last day at work will be the 28^th August 2018.” 6

[24] Mr Jeffs did not attend work again until 28 August 2018 at which time he met Mr Wicks to discuss the arrangements to finalise his employment, including the Employment Cessation Form emailed to him on 22 August 2018. In the Form completed by Mr Jeffs he indicated that the reason for the cessation was “involuntary termination of employment”. Mr Wicks disagreed with that characterisation and raised the issue with Mr Jeffs, suggesting that “resignation” or “retirement” were more appropriate descriptors. The outcome of the conversation was that Mr Wicks’ view was reflected as a comment on the completed Form.

[25] Mr Wicks also asked Mr Jeffs to complete his input into his annual performance review. In doing so, Mr Jeffs inserted the following comment: “[t]he demonstrated values and ethics of the Department have created an environment in which I cannot work. I cannot be compelled to work under the actual behaviours of the department” into his IPA documentation. 7
[26] Mr Jeffs ceased employment with the Respondent on 28 August 2019. As previously mentioned, Mr Jeffs’ unfair dismissal application was received by the Commission on 14 September 2018.

The jurisdictional objection

[27] I will deal firstly with the Respondent’s jurisdictional objection.

The Respondent’s case regarding its jurisdictional objection

[28] The Respondent in its written submissions provided an outline of the circumstances leading to Mr Jeffs’ resignation. Specifically, the Respondent submitted that Mr Jeffs had not been dismissed within the meaning of s. 386 of the Act, adding that it took no action to initiate the termination and nor did it ask Mr Jeffs to resign.

[29] Key aspects of the Respondent’s submissions regarding the question of whether Mr Jeffs was dismissed included that:

•  the requirement for Mr Jeffs to complete his IPA and to comply with the APS Values and the standards of behaviour and ethics required of him by the Respondent did not and could not amount to a repudiation of his employment contract, nor could it be reasonably characterised as either intended to bring the employment relationship to an end or as having the probable result of bringing the employment to an end;

•  it could not be said that Mr Jeffs had no real or effective choice but to resign after being asked to complete his annual performance review;

•  the ethics and culture section of the Respondent’s IPA did not impose any additional ethical obligations on the employees beyond their obligations under the PS Act, e.g. the requirement to comply with the APS Values, the Employment Principles and the APS Code of Conduct;

•  Mr Jeffs’ decision to resign from his employment was a wholly subjective and unanticipated response to the request to complete his annual performance review;

•  there was no repudiation of Mr Jeffs’ contract of employment as a result of any change that occurred to his employment duties, adding that it was readily apparent it took steps to maintain the employment relationship and to provide ongoing work opportunities to Mr Jeffs;

•  Mr Jeffs’ ongoing discontent, annoyance and disillusionment could be traced back to the decision not to provide him with an offer of a voluntary redundancy at a time of his choosing;

•  it rejected Mr Jeffs’ contention that he was excess to requirements, highlighting the definition of an excess employee in clause J2.1 of the Department of Human Services Agreement 2011-2014 (the Agreement) 8 and adding that none of the sub-clauses of clause J2.1 had application to Mr Jeffs’ circumstances as at July 2015;

•  it also rejected Mr Jeffs’ contention that it did not have a proper basis to reject his 2015 request to reduce his hours of work to one day per week and that he was not provided with a proper explanation for the decision, referring to Mr Wong’s emails of 21 March and 11 April 2016 and the scope for Mr Jeffs to seek a review of the decision under s.33 of the PS Act;

•  even if the events of 2015 and 2016 could be said to amount to a repudiation of Mr Jeffs contract of employment this would not automatically bring his employment contract to an end;

•  it was clear from the history of the matter that Mr Jeffs did not make any election to treat his employment contract as at an end at a time contemporary to any of the events of 2015 and 2016; and

•  Mr Jeffs had said to Mr Wicks in their telephone conversation of 10 November 2017 that he considered the Respondent’s conduct amounted to constructive dismissal but that he was not going to resign, adding that by continuing to work Mr Jeffs had elected to affirm the contract of employment.

[30] Key aspects of the Respondent’s oral submissions included that:

•  it gave consideration to Mr Jeffs’ request for a voluntary redundancy, adding that the evidence indicated that there were positions to be filled in the CFOD at the time the request was made;

•  even if an employee was excess, clause J3.1 of the Agreement focused on redeployment;

•  it provided Mr Jeffs with a cogent reason as to why he was not considered excess;

•  at the meeting of 2 March 2016 with Mr Jeffs, Mr Wong reiterated the reason as to why he was not excess;

•  given that Mr Jeffs made his request to work one day per week the day after that meeting, the inference could be drawn that the request was not genuinely directed at working flexibly but rather to support Mr Jeffs’ desire for a voluntary redundancy;

•  Mr Jeffs had options to seek a review of the decision to refuse his request to work one day a week, i.e. initiate either a review under s.33 of the PS Act or a dispute under the Agreement;

•  the meeting of 8 December 2017 was an example of the significant effort by the Respondent to seek to address Mr Jeffs’ concerns;

•  Mr Jeffs never sought to withdraw his resignation letter, adding that his conduct was consistent with a voluntary separation;

•  the Respondent took no action to dismiss Mr Jeffs;

•  the Respondent’s refusal to provide a voluntary redundancy to Mr Jeffs was not a course of conduct intended to see him leave; and

•  contrary to Mr Jeffs’ contentions, the Respondent sought to provide him with meaningful work and flexible working arrangements.

[31] Ms Ahmer in her witness statement 9 deposed among other things that:

•  at the meeting of 8 December 2017 Mr Jeffs had said he wanted an explanation regarding why his work had changed without him being consulted, why he was led to believe that his position was being made redundant but was not then offered a voluntary redundancy and why his request to reduce his part-time hours of work was refused on the basis of other work being available but that other work not being provided until much later;

•  at the conclusion of that meeting she said to Mr Jeffs that she considered the Respondent had responded to the substance of his concerns, with Mr Jeffs stating that he did not consider his concerns had been resolved;

•  she responded to Mr Jeffs indicating that she was not sure that the Respondent could give him what he was seeking;

•  Mr Jeffs subsequently settled into his work in the Branch, adding that he continued to work with Mr Wicks productively over the period February to August 2018;

•  Mr Jeffs did not approach her again to discuss his concerns and she was not made aware of any other issues regarding Mr Jeffs; and

•  on 15 August 2018 Mr Wicks told her that the previous day Mr Jeffs had handed him a copy of his resignation letter which stated that he would cease employment on 28 August 2018, adding that she was surprised at Mr Jeffs’ resignation but was comfortable for the Respondent to accept his resignation.

[32] Ms Ahmer’s oral evidence was consistent with her witness statement. In response to a question from the Commission, Ms Ahmer indicated that in the time Mr Jeffs had worked in her Branch he had worked well in his team, had picked up the work and was a valued member of the Branch. Ms Ahmer reiterated that she was surprised by Mr Jeffs’ resignation.

[33] Mr Wicks’ provided two witness statements 10, with his first statement dealing with the various matters regarding Mr Jeffs which occurred/arose over the period Mr Jeffs worked in his team and his second statement disputing aspects of Mr Jeffs’ submissions. Key aspects of Mr Wicks’ evidence included that:

•  in early February 2018 he met with Mr Jeffs to discuss with him the preparation of an IPA;

•  Mr Jeffs subsequently prepared his IPA, writing under the heading “Ethics and Culture” that “[t]his will require navigating a pathway between the written material and the demonstrated practices within the Department” 11;

•  Mr Jeffs worked productively in his team from 5 February 2018 until his employment ended on 28 August 2018;

•  on 14 August 2018 while he was standing at a printer/photocopier in the office, Mr Jeffs handed him a letter addressed to the Secretary of DHS stating that his last day at work would be 28 August 2018;

•  after that day Mr Jeffs did not attend work again until 28 August 2018;

•  he rang Mr Jeffs on 21 August 2018 and asked him if he had advised the Respondent’s People Advisory Centre (PAC) that he had given notice and that 28 August 2018 would be his last day at work;

•  Mr Jeffs responded that he had sent the letter to the Secretary and asked him to provide the letter to the PAC on his behalf;

•  he met with Mr Jeffs on 28 August 2018 to finalise his employment arrangements, including his IPA;

•  in finalising his IPA Mr Jeffs wrote under the heading “Key Achievements – Expectations” that “[t]he demonstrated values and ethics of the Department have created an environment in which I cannot work. I cannot be compelled to work under the actual behaviours of the Department”;

•  in the Employment Cessation Form completed by Mr Jeffs he indicated that the reason for the cessation of his employment was “involuntary termination of employment”, adding that he raised with Mr Jeffs that either “resignation” or “retirement” were the options that applied in this case;

•  it was agreed that he would add a comment about this issue at the end of the Form, with him agreeing to Mr Jeffs’ suggestion that it be noted in the comments that Mr Jeffs considered the cessation of his employment to be a constructive dismissal;

•  it came as a surprise to him when Mr Jeffs provided him with the notice of his resignation, adding that he is not aware of any reason for Mr Jeffs’ decision other than the offence that had occurred prior to him transferring into Ms Ahmer’s Branch over a year earlier; and

•  he did not recall Mr Jeffs requesting that he obtain the identity of the People Director who had endorsed the Secretary’s reasons for refusing his request to reduce his hours of worked one day per week, nor had he agreed to obtain this information for Mr Jeffs.

[34] In response to a question from the Commission, Mr Wicks indicated that he was satisfied with Mr Jeffs’ performance and that his immediate reaction to being handed the letter of notice by Mr Jeffs was one of shock. Mr Wicks also stated that but for Mr Jeffs’ resignation his expectation was that Mr Jeffs would have continued to work in his team.

[35] Mr Wong’s witness statement 12 traversed the series of events between January 2014 when Mr Jeffs returned from leave until September 2016 when the decision was made to transfer Mr Jeffs to Ms Ahmer’s Branch. Among other things, Mr Wong deposed that:

•  he did not indicate to Mr Jeffs in January 2014 that a redundancy payment would be made available to him if he wanted to cease working for the Respondent;

•  in early January 2014 no decision had been made to discontinue the production of the Almanac or reallocate the duties associated with its production, though later that year there were discussions about whether and how the tasks associated with the production of the report or a suitable replacement ought to be transferred to the Respondent’s human resources area;

•  he did not recall Mr Jeffs saying to him prior to June 2015 that he was concerned or upset about his workload reducing, adding that as a result he had no reason to think that Mr Jeffs was not fully occupied with the work provided to him by his supervisor;

•  in late June 2015 Mr Jeffs approached him to ask if he could be offered a voluntary redundancy, with Mr Jeffs advised on 2 July 2015 that a voluntary redundancy was not available to him;

•  in February 2016 Mr Perry told him that Mr Jeffs had complained to him that his workload had been gradually reducing over time, that he was not being provided with enough meaningful work to do and that he was upset that he had not been offered a voluntary redundancy in 2015;

•  he was not previously aware of Mr Jeffs’ concerns;

•  a meeting was convened for 2 March 2016 to discuss Mr Jeffs’ concerns, with the meeting ending without any resolution and it being clear to him that Mr Jeffs was not responsive to his attempts to find a way forward;

•  he discussed Mr Jeffs’ subsequent request to reduce his hours of work to one day per week with the CFO and other senior managers in the CFOD, with the request considered in the context of the CFOD’s workload;

•  in mid-September 2016 he met with the CFO and Ms Ahmer where it was determined that due to the breakdown in the relationship between he and Mr Jeffs and the fact that it was being used as a reason by Mr Jeffs not to comply request for him to undertake work that Mr Jeffs should be transferred to Ms Ahmer’s Branch.

[36] Mr Wong’s oral evidence was consistent with his witness statement.

[37] In its submissions the Respondent relied on the decisions in City of Sydney RSL & Community Club Ltd v Mrs Roxana Balgowan 13, Stephen Geoffrey Fitzgerald v Woolworths Limited14, Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (Bupa)15 and Fair Work Ombudsman v Austrend International Pty Ltd and Denzil Godfrey Rao16.

The Applicant’s case regarding the jurisdictional objection

[38] Mr Jeffs contended that he had been dismissed as described in s.386(1)(b) of the Act.

[39] In his written submissions, Mr Jeffs disputed several aspects of the Respondent’s submissions regarding its jurisdictional objection. For instance, Mr Jeffs disputed that he requested a voluntary redundancy in June 2015. More particularly, Mr Jeffs submitted inter alia that:

•  his dismissal was the cumulative effect of the Respondent’s course of conduct which involved unethical practices and a culture which in practice did not match that claimed by the Respondent, later adding that he made every attempt to get his issues addressed over a long period;

•  redundancy was normally accepted to mean the ending of a job as opposed to the Respondent’s concept of a voluntary redundancy which was related to people;

•  he did not initiate the termination of his employment, attributing that to the actions of the Respondent;

•  he maintained that he should not join the unethical and improper behaviours demonstrated in the Respondent’s long course of conduct towards him;

•  in his discussions with Mr Wicks on 7 August 2018 he put a question to Mr Wicks to test the integrity of the Respondent and when Mr Wicks did not supply a response to that query it was the last action in a course of actions compelling the termination, adding that the question was a very simple test set to see if the Respondent would show some sign of taking a more proper attitude towards him and that when the Respondent failed the test his separation ensued;

•  the Respondent’s action in removing the Almanac work and not replacing it was consistent with it forcing him “out” or making his job redundant in the normal meaning of the word;

•  if the Respondent intended to redeploy him as per clause J3.1 of the Agreement it would have declared that intention either through common decency or as a result of the express requirements of the Agreement, adding that this was not done and that the Respondent’s motivation for this behaviour had never been explained; and

•  the Respondent’s behaviour was consistent with it attempting to get him to resign, thereby removing both him and the job at the same time.

[40] In his oral submissions, Mr Jeffs essentially provided an overview of the key events over period 2014 until the cessation of his employment on 28 August 2018. Key points in that regard included that:

•  with regard to the decision not to approve his request to work one day per week, he considered that the Respondent’s behaviour was not consistent with its policies;

•  that issue was his complaint;

•  in circumstances where there was no discussion with him about the request, he considered that what was occurring amounted to a constructive dismissal;

•  he agreed that it was a quantum leap to say the decision to refuse the request was designed to force him out, reiterating that he had been treated with contempt for a couple of years;

•  he was angry and kept asking himself why the Respondent kept refusing to tell him why it was behaving as it was;

•  he was not comfortable with the Respondent’s practiced ethics and culture, describing the Respondent as highly dishonest;

•  while the Respondent’s ethics and culture were not designed to force him out, he did not want to be part of something that behaved as the Respondent had;

•  he agreed that the move to Ms Ahmer’s Branch was not reflective of a desire by the Respondent to push him out the door;

•  he got on reasonably well with Ms Ahmer and Mr Wicks;

•  the test he set Mr Wicks in August 2018 was motivated by his desire for answers, adding that his view was that if the Respondent was not going to provide him with answers that “I’m out”; and

•  he believed the Respondent could easily have treated him in a better way.

[41] In response to a question from the Commission which sought his view on the proposition that his submissions pointed to an employee who was disaffected as opposed to a conspiracy by the Respondent to force him out the door, Mr Jeffs stated that he could not prove a conspiracy but that his concerns could have been resolved throughout if the Respondent had for instance acknowledged that certain things it had done were wrong. Mr Jeffs further stated that it was “bad behaviour” on the part of the Respondent not to answer his questions and that the Respondent had not treated him with respect.

[42] In his witness statement 17 Mr Jeffs deposed inter alia that:

•  Mr Wong’s email of 2 July 2015 advising him that he would not be offered a voluntary redundancy introduced the idea of “additional work”, something not alluded to by Mr Wong in their discussion in January 2014;

•  the change in position regarding voluntary redundancy caused him distress as the given reasons would have been known previously and should have been given long before the issue of a voluntary redundancy was raised with the CFO;

•  his view was that as the Almanac work was ending his job was redundant;

•  in circumstances where one of the reasons cited in approving his October 2015 request for reduced hours of work was “insufficient work”, it is not credible that Mr Wong was unaware of the reduction in his work;

•  he believed that at his July 2015 meeting with the CFO and Mr Wong they had assumed that he would retire/resign if “pressure was kept on him”, adding that his research identified this type of behaviour was constructive dismissal and that he resolved to resist it;

•  on his return to work in early December 2017 he asked what progress had been made in determining why he had been treated as he had been previously and that in the absence of any explanation for the adverse actions that had been taken against him he insisted on the matter being resolved;

•  subsequent correspondence did not provide a proper response;

•  in January 2018 he took leave on medical advice and sought counselling;

•  in February 2018 in the context of discussing his IPA with Mr Wicks he again expressed concerns about his treatment by the Respondent; and

•  in the absence of a response from Mr Wicks on 14 August 2018 to the test he had set for the Respondent as to its integrity, he wrote a letter that it would be wrong for him to be compelled to be a part of the ethics and culture demonstrated and that he would be forced to separate from the Respondent.

[43] Mr Jeff’s oral evidence largely reflected his witness statement. However, with regard to the test he set Mr Wicks in August 2018, Mr Jeffs deposed that by that time he was “fed up” and that Mr Wicks was not aware of the consequences of a non-response, i.e. that he would resign. Mr Jeffs further deposed that his action in resigning was not spontaneous but had been planned. Mr Jeffs also acknowledged that he had never been notified of his dismissal by the Respondent.

The statutory framework

[44] Section 386 of the Act deals with the meaning of dismissed while s.394 sets out who may apply for an unfair dismissal remedy. The sections provide 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.

(2) …

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.”

Consideration of the issues

[45] As previously mentioned, Mr Jeffs maintained that he had been dismissed as described in s.386(1)(b) of the Act. The operation of s.386(1) of the Act was considered by the Full Bench in Bupa which made the following observations:

“[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 probably 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.

[48] It is necessary for an applicant for an unfair dismissal remedy whose employment has terminated because the employer has acted on a communication of resignation on the part of the employee to articulate whether they contend they were dismissed in the first or the second scenario above (although it may be possible for both scenarios to arise in a particular factual situation). Where the applicant is self-represented or inadequately represented, it may be necessary for the member of the Commission hearing the matter to clarify with the applicant the precise basis upon which it is contended that the applicant was dismissed. If this is not done, it may lead to the wrong test being applied to the matter.” 18 (Underlining added)

[46] By way of background, the Agreement deals with part-time employees at clause F5 and with retention, redeployment and redundancy at Part J. The relevant provisions in this context of this matter are set out below:

“F5.5 The Secretary may approve a request from a full time employee for a part time arrangement. Such a request may be made at any stage.

F5.6 Applications from full time employees to work part-time, and applications from part time employees to change their pattern of hours (or number of ordinary hours of duty), will not be unreasonably refused.

F5.7 The Secretary will make all reasonable efforts to accommodate employee requests to access or renew a part time agreement, taking into account:

(a) the employee's needs and preferences; and

(b) the capacity and needs of a team, workplace or business line to meet its internal or external service delivery requirements.

F5.8 Where an employee's written request for part time arrangements is refused, the Secretary will provide the employee with written reasons for the decision, within 21 days of the decision.

J2 DEFINITION OF EXCESS EMPLOYEE

J2.1 An employee is an excess employee if:

(a) the employee is included in a class of employees employed in the department where there are more employees in the class than is needed for the efficient, effective and economical operation of the department;

(b) the employee's services cannot be effectively used because of technological or other changes in work methods of the department, or changes in the nature, extension or organisation of functions of the department; or

(c) the duties usually performed by the employee are required to be performed at a different locality, the employee is not willing to relocate to perform their duties, and the Secretary has determined that clauses J1 to J2 apply to that employee.

J3 PREVENTING EXCESS EMPLOYEE SITUATIONS

J3.1 The department will actively explore redeployment options initially within an employee's current Section, Branch and Division and then through the department-wide job placement scheme with a view to preventing excess employee situations.” 19 (Underlining added)

[47] The Respondent’s information sheet regarding reasonable business grounds in the context of requests for flexible working arrangements provides inter alia that “[m]anagers and employees are encouraged to discuss their working arrangements and, where possible, reach an agreement that balances both the needs of the employee and the business.” 20

[48] Key aspects of the evidence in this case are that:

•  Ms Ahmer and Mr Wicks were surprised/shocked at Mr Jeffs’ resignation, with Ms Ahmer describing Mr Jeffs as a valued member of the team;

•  with the exception of Mr Jeffs’ request to reduce his hours of work to 10 hours/one day per week, the Respondent approved his various requests for changes to his hours of work and for studies assistance;

•  the Agreement, in circumstances where an employee’s request for part-time arrangements is refused, only requires the Secretary to provide written reasons for the decision within 21 days of the decision – i.e. the Agreement does not require the Secretary to discuss the decision to refuse the request with the employee, though the Respondent’s abovementioned information sheet on reasonable business grounds does encourage managers and employees to discuss their working arrangements;

•  Mr Wong’s email of 2 July 2015 set out the reasons why Mr Jeffs was not offered a voluntary redundancy 21, while his emails of 21 March and 11 April 2016 explained the reasons as to why his request to work one day per week had been refused22;

•  Mr Jeffs’ circumstances do not come within the definition of excess employee set out in clause J2 of the Agreement;

•  by August 2018 Mr Jeffs was “fed up”;

•  Mr Wicks was not aware of the consequences of a non-response to the test which Mr Jeffs had set him on 7 August 2018, i.e. that he would resign if Mr Wicks did not respond;

•  Mr Jeffs’ resignation was not spontaneous but had been planned;

•  Mr Jeffs had never been notified of his dismissal by the Respondent; and

•  but for Mr Jeffs’ resignation, Mr Wicks’s expectation was that Mr Jeffs would have continued to work in his team.

[49] Significantly in my view, Mr Jeffs agreed in his submissions thatit was a quantum leap to say the decision to refuse the request to work one day per week was designed to force him out and that the move to Ms Ahmer’s Branch was not reflective of a desire by the Respondent to push him out the door.

[50] Having regard to the observations made by the Full Bench in Bupa, I note firstly Mr Jeffs contention that he was dismissed as discussed in s.386(1)(b) of the Act, i.e. the second scenario described in Bupa. My view that the second scenario applies in this case is reinforced by:

•  Mr Jeffs’ evidence that his resignation was not spontaneous but had been planned; and

•  Mr Wicks’ evidence regarding his conversation with Mr Jeffs on 21 August 2018 in which Mr Jeffs asked him to forward a copy of his letter of notice to the PAC.

[51] As such, it is the Respondent’s conduct which is the “essential element” in this case.

[52] Much, if not most, of Mr Jeffs’ discontent relates to the Respondent’s failure to offer him a voluntary redundancy in June 2015. However, there is no evidence before the Commission which would support a finding that the Respondent’s action in not offering Mr Jeffs a voluntary redundancy was motivated by an intention to bring Mr Jeffs’ employment to an end. Several considerations underpin that conclusion. First, I accept Mr Wong’s evidence that he did not indicate to Mr Jeffs in January 2014 that a redundancy payment would be made available to him if he wanted to cease working for the Respondent. Second, as noted above, Mr Jeffs’ circumstances do not come within the definition of excess employee set out in clause J2 of the Agreement, i.e. there was no basis for the Respondent to offer him a voluntary redundancy. Third, even if Mr Jeffs had been declared excess, the likelihood is that he would have been redeployed elsewhere in the CFOD given that there were vacant positions at the time, Finally, Mr Jeffs continued to work for the Respondent for a further three years after his request for a voluntary redundancy was refused.

[53] Similarly, there is no evidence which would support a finding that the Respondent’s action in giving consideration to the future of the Almanac report or not agreeing to Mr Jeffs’ request to reduce his hours of work to one day per week was engaged in with the intention of bringing his employment to an end. In particular, the fact that the Respondent accommodated all but one of Mr Jeffs’ requests for reduced working hours, that it went to some lengths over an extended period of time to try and respond to his concerns and that it endeavoured to provide him with meaningful work which utilised his skills and experience does not support a finding that Mr Jeffs was dismissed as per s.386(1)(b) of the Act. While it is arguable that the Respondent could have better informed Mr Jeffs of its intentions regarding the future of the Almanac report, discussed with him his request to work one day per week and more actively overseen his workload while he was working in Mr Wong’s Branch, I think its failure to do so was most likely a by-product of the fact that Mr Jeffs’ was separated from actual supervisor and the rest of his team all of who worked on the Gold Coast rather than Canberra.

[54] While I understand that Mr Jeffs is aggrieved by what he considers to be the unfair treatment he received, the Respondent’s actions when viewed objectively and having regard to the terms of the Agreement were not unreasonable. Unfortunately, Mr Jeffs chose not to accept the Respondent’s explanation of the reasons for its decision where it refused his requests and attributed some ulterior motive to the Respondent’s decisions. Even more fundamentally, in respect of his request for a voluntary redundancy, Mr Jeffs refused to take “no” for an answer. That is Mr Jeffs’ right. However, it does not mean that he had no real or effective choice but to resign. Mr Jeffs could have either raised a dispute in accordance with the Agreement or alternatively sought a review under s.33 of the PS Act regarding the decision to not approve his request to work one day per week.

Conclusion

[55] For all the above reasons, I am satisfied that Mr Jeffs was not dismissed by the Respondent and that his resignation was not the result of a course of conduct by the Respondent intended to bring Mr Jeffs’ employment to an end. As Mr Jeffs was not dismissed as per s.386 of the Act, he is not able to make an application under s.394 for an unfair dismissal remedy, i.e. his application is incompetent. Mr Jeffs’ application will therefore be dismissed. An order to that effect will be issued in conjunction with this decision. In these circumstances it is not necessary to consider the merits of Mr Jeffs’ unfair dismissal application.

Appearances:

G. Jeffs on his own behalf.

S. Wright for the Respondent.

Hearing details:

2019.

Canberra.

February 14-15.

Printed by authority of the Commonwealth Government Printer

<PR714894>

 1   Form F2 – Unfair Dismissal Application at 3.2

 2   Ibid

 3   Exhibit 4 at Annexure RW-2

 4   Ibid at Annexure RW-9

 5   Exhibit 2 at Annexure AW-5

 6   Ibid at Annexure AW-7

 7   Ibid at Annexure AW- 5

 8   AE890392

 9   Exhibit 1

 10   Exhibits 2 and 3

 11   Exhibit 2 at Annexure AW-5

 12   Exhibit 4

 13   [2018] FWCFB 5

 14   [2017] FWC 1730

 15   [2017] FWCFB 3941

 16 [2018] FCA 171

 17   Exhibit 5

 18   [2017] FWCFB 3941at [47]-[48]

 19   AE890392

 20   Exhibit 6

 21   Exhibit 4 at Annexure RW-2

 22   Ibid at Annexure RW-9