Hendrik Johannes Liebenberg v IP Australia
[2024] FWC 2933
•22 OCTOBER 2024
| [2024] FWC 2933 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Hendrik Johannes Liebenberg
v
IP Australia
(U2024/6953)
| DEPUTY PRESIDENT DEAN | CANBERRA, 22 OCTOBER 2024 |
Application for an unfair dismissal remedy – whether applicant was dismissed or resigned.
Mr Liebenberg (Applicant) has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with IP Australia (Respondent). The Respondent is an Australian Government agency that is tasked with administering intellectual property rights and related legislation in Australia.
The Applicant had been employed by the Respondent as a Patent Examiner from October 2012. His role primarily entailed examining patent applications to ensure they met relevant requirements and criteria.
It is not in dispute that on 6 February 2024 the Applicant advised the Respondent by email of his resignation, giving one month’s notice. He claims he was constructively dismissed because he could not continue to support “unlawful, unreasonable, unfair, inefficient, and abusive management practices”.
The Respondent objects to the application on the basis that the Applicant was not dismissed within the meaning of s.386 of the Act in that he resigned voluntarily.
A hearing took place on 27 September 2024. At the hearing, the Applicant appeared on his own behalf and Mr I Bennett of Sparke Helmore Lawyers appeared with permission for the Respondent. Evidence was given by the Applicant, Ms A Quinn (Director of People Development) and Ms S Sreevatsa (Director/Supervising Examiner of Patents).
For the reasons set out below, I find that the Applicant was not dismissed within the meaning of the Act and accordingly the application is dismissed.
The background and case for each party
During the course of the Applicant's employment, he had on a number of occasions questioned the processes adopted by the Patents Examination Group (PEG) and its operational guidance materials relevant to the functions of the PEG where he was employed.
He contended that the Respondent engaged in conduct or a course of conduct that included:
a. providing unlawful, unreasonable, unfair, and inefficient decision-making practises and directions in an administrative law sense;
b. being recklessly indifferent about obligations to encourage lawful, reasonable, fair and efficient decision-making practises and directions in an administrative law sense;
c. pressuring, intimidating and coercing the Applicant to participate in those practises and directions causing mental distress, such as distress, shock, humiliation or other analogous hurts; and
d. being recklessly indifferent and grossly negligent about obligations to prevent or alleviate those mental stress, and instead aggravating the mental stress by continuing those practises and directions, or in the pressure to participate in those practises and directions.
The Applicant contended that this conduct was well known to have the probable result of bringing employment relationships to an end.
The Respondent summarised the key issue raised by the Applicant as follows:
“In effect, the main point of discomfort for the Applicant appeared to be the view that if he had reviewed an application but this was then required to be the subject of input by another team member (for example, due to quality and assurance processes) the Applicant felt this was inappropriate or potentially influencing the decision making process to be exercised by a nominated delegate (such as himself and other examiners) (Administrative Law Concerns).”
The Administrative Law Concerns were the subject of extensive discussion between the Applicant and the Respondent particularly from 2021 onwards. Those discussion had included members of the Respondent’s human resources team, the Office of the Legal Counsel, two different Commissioners of Patents, and numerous senior managers and subject matter experts with respect to patent applications.
The evidence shows extensive email exchanges between the Applicant and various persons employed by the Respondent in relation to the Administrative Law Concerns. By way of example, the Applicant sent the following email in July 2022:
“Ola Senior Colleague, so further to our chat Friday, I had a quick look at those two cases and there may will be further adverse reports on them ...
As I have agreed with the commissioner, I will not participate in directions anymore that I perceive is unlawful or unreasonable until those perceptions are resolved. A third report that holds out on its face that the primary decision makers decision was subject to direct supervision is holding out a perception a fettering which I perceive is unlawful … and making a decision trying to predict a supervisor's beliefs, states of mind, opinions, and personal biases so as to avoid adverse performance consequence, is both unlawful and unreasonable.
As I have mentioned before, I am well aware that I am underperforming and possibly guilty of insubordination … and, I may will suffer consequences in due time … in the meantime, as I have said dozens of times now, I will not participate in directions anymore that I perceive is unlawful or unreasonable, until those perceptions are resolved.
So suppose, those cases have to be assigned to someone who does not hold the same concerns and perceptions as I do.
OK, speak later”
The consistent position the Respondent said it conveyed to the Applicant, and I am satisfied was conveyed, was that:
a. The operational guidance materials had been established from extensive consultation and input from numerous stakeholders to balance the various considerations including helping to guide appropriate decision making;
b. the provisions of input and feedback from various stakeholders and personnel within the PEG does not necessarily inappropriately influenced decision making nor change that items may still be a matter for a delegate to determine; and
c. if there is a conflict in views on an application as part of the review or feedback process, there are various steps available to resolve this potential situation and to ensure the most appropriate decision making including:
i.by escalating for the additional or third input of another team member including a more senior examiner; and
ii.by reallocating the application to undergo a further examination and determination process which may be completed by an alternate delegate.
The Applicant made a complaint of bullying in July 2022 which he said had to do with repetitively being told by a supervisor to do something he was not comfortable with and something that he perceived to be unlawful and unreasonable.
The Respondent said that regrettably, even if the Administrative Law Concerns were addressed and seemingly resolved with the Applicant, the same issues would frequently be reagitated by the Applicant, who appeared very fixated in his views and unwilling to find a practical solution or way forward, and that these interactions were often engaged in by the Applicant in a confrontational and obstinate manner.
In early 2024 the Applicant had again conveyed his dissatisfaction and disagreement to the Respondent with various matters relating to his employment and his views on the Administrative Law Concerns. A meeting was held on 6 February 2024 which included the Applicant and various senior managers and subject matter experts. During this meeting in which the Respondent again conveyed its position on the Administrative Law Concerns, the Applicant expressed his dissatisfaction with the information conveyed, left the meeting as well as the workplace, and subsequently tendered his resignation by way of email in the following terms:
“To whom it may concern,
Accept this as my one month notice of resignation. I cannot in good faith support unlawful, unreasonable, unfair, inefficient, and abusive management practices. I will now take this up with the Commonwealth Ombudsman. I will contact HR to get the necessary things done.”
The Respondent did not seek to advance or process the resignation at that time, and instead sought to confirm the Applicant's intentions including reiterating various options available to the Applicant as an alternative to resignation.
The Applicant elected to rescind the resignation and subsequently commenced a period of approved leave spanning from 6 February to 19 May 2024 inclusive.
The Applicant was due to return to work on Monday 20 May 2024, however he did not return to work on that date. There were numerous unsuccessful attempts to contact the Applicant on and following 20 May 2024, however the first contact occurred on 28 May 2024 when the Applicant returned items of the Respondents property in his possession. As a result, the Respondent arranged for Ms Quinn to contact the Applicant to seek clarification around his intentions with respect to his ongoing employment. She also noted the Respondent’s view that the Applicant remained in the employ of the Respondent at that time.
In his evidence, the Applicant said he had decided to resign by way of constructive dismissal on 28 June 2024, being the day on which day he returned all the Respondent’s property in his possession.
Ms Quinn had a conversation with the Applicant on 7 June 2024 seeking clarity on his intentions with the return on its property. The Applicant told her he was not interested in talking to anyone from the Respondent anymore, and he intended to “take it up with the Ombudsman or Fair Work”. In response to Ms Quinn’s comment that the Respondent still considered he was an employee of the Respondent, the Applicant said words to the effect of: “I can’t work for a corrupt agency anymore so there isn’t any point and I don’t want to talk about it anymore. I just need you to send everything to me in writing moving forward and will only engage with you, I will not speak to my line manager”.
She subsequently sent an email to the Applicant asking that he confirm his intentions with respect to his employment. His reply on 10 June 2024 included a suggestion that he had been constructively dismissed, and requested various documents to be provided to him.
Further emails were exchanged between the parties until this application was received by the Respondent on 25 June 2024.
On 8 July 2024, lawyers for the Respondent wrote to the Applicant indicating that the Respondent did not necessarily agree that the employment relationship had come to an end, and amongst other things, invited him to confirm whether he wanted to return to work.
On 31 July 2024, following a Commission conciliation conference on 15 July with respect to this application, the Respondent’s lawyers wrote again to the Applicant:
a.Confirming he had not commenced any other processes such as a PID or FOI request;
b.Inviting him to consult the relevant guidance materials on PID and FOI procesess; and
c.Advising him it had determined to treat the employment relationship as at an end and it would calculate any outstanding leave entitlements due and payable to him up to 25 June 2024, that being the date the Respondent received both this application and written notice from the Applicant that he considered the employment relationship had ended.
The Applicant denied that other options were available to him other than resignation. He said there was no effective option because all those options would require the Applicant to still be employed by the Respondent which he would not do.
He argued that the Respondent had refused to comprehensively address the Administrative Law Concerns and his perception of serious wrongdoing. He contended that there was an obligation on him to report and refrain from participating in serious wrongdoing, which meant he could refuse to carry out a direction that he considered to be unlawful and unreasonable. He said that because the Respondent refused to “provide legal justification for the questionable practices”, it was his right and obligation to not further participate in serious wrongdoing.
The Respondent contends that the Applicant consciously resigned from his employment. It says he had other options available to him, and there is no evidence to indicate that any action or omission of the Respondent caused him to resign. Rather, the evidence shows that it did not immediately accept his resignation in February 2024 and it had made many attempts to resolve the Administrative Law Concerns with him. The Respondent contended that it was apparent from the materials lodged by the Applicant that he had considered his resignation for some time prior to it being accepted on 31 July 2024.
When is a person dismissed?
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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.
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[1] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1) which included the following:
(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.
In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[2] Deputy President Sams noted the following when considering whether the applicant was dismissed:
a.Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as: “the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”
b.This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, ‘… 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.’
c.In Mohazab, the Full Court also said:
‘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.’
d.A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘… to constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].
Finally, it is the case that “considerable caution should be exercised in treating a resignation as other than voluntary where the conduct of the employer is ambiguous and it is necessary to determine whether the employer’s conduct was of such a nature that resignation was the probable result such that the employee had no effective or real choice but to resign”.[3]
Consideration
Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act, in that he was not dismissed at the initiative of the Respondent, nor was he forced to resign because of conduct engaged in by the Respondent.
The Applicant’s dissatisfaction, in the form of the Administrative Law Concerns, had been responded to by the Respondent on multiple occasions. Clearly, the Applicant held the view that the response provided was insufficient to address his concerns, however this is not sufficient to support a finding that the Applicant had no choice but to resign.
I agree with the Respondent’s submissions to the effect that the Applicant had other options available to pursue any grievances or complaints, and he was aware of those options having exercised them in the past.
The Respondent did not immediately accept the Applicant’s resignation, and he was given the opportunity to re-consider his decision. He was then able to rescind his resignation and take an extended period of leave. He did not return to work following his period of leave and it was some 8 days later that he returned the Respondent’s property. The background set out earlier, which I accept, clearly demonstrates that the Respondent did not engage in any conduct with the intention of bringing the employment to an end or with the probable result, such that the Applicant had no real or effective choice but to resign. In fact, the opposite is true. The Respondent provided multiple opportunities to the Applicant to continue in his employment.
While it is not strictly necessary to delve into the Applicant’s assertions of unlawful conduct on the part of the Respondent, I do not consider there to be any basis for such assertions given the evidence before the Commission. The evidence also made clear that the Respondent had been externally audited in 2024 as part of its Quality Management Systems and had been certified in a range of areas including examination of patents, and conduct of hearings and issues of decisions relating to patents.
The Applicant has not discharged his onus to demonstrate that he had no real, effective or meaningful option but to resign in these circumstances. As a result, I am not satisfied that he was dismissed within the meaning of the Act. This application is therefore dismissed.
DEPUTY PRESIDENT
Appearances:
H Liebenberg on his own behalf.
I Bennett of Sparke Helmore Lawyers for IP Australia.
Hearing details:
2024.
By video:
September 27.
[1] [2017] FWCFB 3941.
[2] [2012] FWA 2473.
[3] Sathananthan v BT Financial Group Pty Ltd[2019] FWC 5583.
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