Kee Fook Edmund Chia v Australian Catholic University

[2024] FWC 1416

[2024] FWC 1416

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Kee Fook Edmund Chia
v

Australian Catholic University

(U2024/973)

DEPUTY PRESIDENT O’NEILL MELBOURNE, 12 JULY 2024

Application for an unfair dismissal remedy – jurisdictional objection – no dismissal – resignation – jurisdictional objection upheld – application dismissed.

Introduction

1. Dr Kee Fook Edmund Chia has made an unfair dismissal application alleging that he was unfairly dismissed by the Respondent, Australian Catholic University (ACU). The ACU contends that Dr Chia resigned and was not dismissed. Dr Chia contends that he did not resign, or if he did, it was not voluntary as he was forced to do so.

1. The issue was dealt with at a hearing on 30 April 2024. The Respondent was granted permission to be represented. After considering the views of the parties, I considered that a hearing was the most effective and efficient way to conduct the matter.

1. I have concluded that Dr Chia’s employment ended by his voluntary resignation and not from any conduct of the ACU. As Dr Chia was not dismissed, he is not eligible to make an unfair dismissal application.

Consideration

First Resignation

1. Dr Chia has been a Senior Lecturer in the School of Theology since 2011 with both teaching and research responsibilities.  He was approved to work from a non-campus overseas location for Semester 1 of 2022.

1. In 2022, to deal with a personal situation, Dr Chia had to be in the Philippines where his wife resided. In late May 2022 he sought approval for an indefinite remote working arrangement, which was refused. He then requested long service leave, which was also refused due to the difficulties the ACU faced given the short period of notice. As he “desperately needed to be abroad in Sem. 2 of 2022”, Dr Chia then “voluntarily submitted a notice of resignation to [his] supervisor stating [his] intention to cease employment at the beginning of Sem 2. 2022.”[1]

1. Further discussions then took place between Dr Chia and his manager, Dr Jacobs-Vandegeer.

1. The Respondent’s evidence is that the parties agreed that Dr Chia would be allowed to work remotely for Semester 2 2022, on the basis that he would then take annual leave and long service leave after which his resignation would take effect (in line with his desire to remain overseas).[2]

1. On 17 June 2022, Dr Jacobs-Vandegeer told Dr Chia that he needed him to email his resignation.  Dr Chia’s evidence is that he did not think much about the request and simply did as he was asked.  He says that he was “too surprised to respond as resignation had already been taken off the table … but I trusted that his request was solely for the purpose of securing permission for me to continue teaching from abroad.”[3]

1. On 17 June 2022, shortly after the meeting, Dr Chia sent the requested email:

   “After due reflection and consideration of my personal circumstances, I wish to register my intention to take early retirement. Please accept this email as my official notice signalling my resignation from service at ACU as of 2 January 2023.” (emphasis added)

2. A further email was forwarded a few minutes later, which Dr Chia requested be treated as the operative email:

“After due reflection and consideration of my personal circumstances, I wish to register my intention to take early retirement. Please accept this email as my official notice signalling my intention to resign from service at ACU after exhausting my leave balance that I will begin taking as of 2 January 2023.

Many thanks for your kind support and understanding.” (emphasis added)

1. In cross-examination it was put to Dr Chia, that the reason for the change from resigning as of 2 January 2023 until after exhausting his leave commencing 2 January 2023, was because of the tax advantages of taking leave whilst still employed. Whilst Dr Chia initially denied this, when he was cautioned that he had filed material indicating this, he agreed that this was part of his reasoning to change the date of his intended retirement.[4]

1. Dr Jacobs-Vandegeer forwarded the Applicant’s resignation and remote working request to the relevant delegate, which was then approved by the Vice-Chancellor.[5]

1. The Respondent submits that the email reflects the agreement that had been reached. Dr Chia expressed an intention to resign in May 2022, and confirmed his resignation on 17 June 2022, on the basis that he would be teaching abroad for Semester 2022 and would take annual and long service leave in 2023. The Respondent submits that if Dr Chia had not submitted his resignation in June 2022 and the University had to plan on the basis that he was an ongoing staff member (and the University was not able to take steps to replace him), his leave request would have required significantly more consideration, and it is unlikely that it would have been approved.[6]  In short, the arrangements were only supported because they were transitional arrangements prior to his retirement and which the University approved to accommodate Dr Chia’s personal circumstances.[7]

1. Dr Chia’s evidence is that he agreed to stay on if he was allowed to teach from abroad.[8] Given that the Respondent subsequently approved his request to teach abroad in Semester 2, he considered his resignation of 5 June 2022 was “effectively cancelled and invalidated”.[9]

1. Dr Chia also “knew that any intention to resign had to be eventually formalised through Staff Connect (which only [he could] submit).”[10] This is a common thread in Dr Chia’s evidence and submissions. In short, Dr Chia’s belief is that any ‘informal’ resignation is of no effect, and that a resignation is only ‘formal’ when he personally completes the administrative process of completing an Employee Separation form online in the Staff Connect system.[11]  He believes that the Notice of Separation is the only valid document certifying the end of employment.[12] 

1. Completion of the Employee Separation form is an internal administrative process, which feeds into other internal processes, such as when an employee’s IT systems access ceases.[13] Whilst the ACU’s usual practice is for an employee to complete an Employee Separation form, it is permitted and not unusual for a supervisor to process the form on an employee’s behalf. The ACU’s Notice of Resignation or Retirement Policy[14] requires an employee to provide a written resignation but does not require an employee separation form to be completed before a resignation can be finalised.

1. I find that Dr Chia’s email of 17 June 2022 constituted his resignation with effect from the date his leave balances were exhausted. In the circumstances, I do not find that it was no more than an intention to resign at some indeterminate point in the future, noting the reference to it being ‘official notice’. I also do not accept Dr Chia’s submission that he did not state that he would resign immediately upon the exhaustion of his leave. Dr Chia’s resignation was the basis upon which the ACU was prepared to approve his working remotely for Semester 2 and is the most plausible explanation for Dr Jacobs-Vandegeer’s request for Dr Chia to send the resignation email. It is not at all plausible that the request for Dr Chia’s resignation came ‘out of the blue’ and not as part of an agreement the two men had reached, whereby Dr Chia would be allowed to work remotely, then retire when his leave balances were exhausted. Although Dr Chia did not believe his resignation would be ‘formal’ unless and until he completed an Employee Separation form, that does not alter the effect of his email.

Second Resignation

1. Dr Jacobs-Vandegeer left ACU at the end of 2022 and Associate Professor Michael Buchanan was appointed to that role.

1. On 8 February 2023, Professor Nestor was contacted by an internal human resources employee who advised that Dr Chia’s file indicated he was to resign effective 2 January 2023, but no resignation had been entered into Staff Connect. Professor Nestor was asked to confirm whether Dr Chia had resigned and the effective date, and that either Dr Chia or his supervisor would need to enter the resignation into Staff Connect. The same day, Ms Rainbird (Associate Director, HR Appointments and Services), advised that Dr Jacobs-Vandergeer had accepted Dr Chia’s resignation and asked him to put it in the system. [15]  

1. On 20 February 2023, Professor Nestor emailed Dr Chia, outlining the details of the resignation, that no Employee Separation form appeared in the system, that his applications for long service leave for 31 July 2023 to 3 November 2023 and 27 February 2023 to 16 June 2023 were pending approval, and that the permission to work from a non-campus offshore work location had lapsed on 2 January 2023. Professor Nestor requested a meeting to clarify the situation.[16]

1. On 21 February 2023, Dr Chia forwarded an email to Professor Nestor he had previously sent to Dr Jacobs-Vandegeer around October 2022. Dr Chia indicated that he wished to clear his leave first (taken on half-pay, to extend his service and also pay less on taxes). He indicated that he would put in his retirement request only later, about 3 or 4 months before his leave ended.[17] The email also indicated that he had a “rethink” of his situation and did not want to be pressured into submitting his resignation.

1. On 24 February 2023, Professor Nestor emailed Dr Chia advising that as he had provided notice of his intention to resign on 17 June 2022, the required notice requirement had been met, and gave him instructions on how to complete the Employee Separation Form, explained the next steps including that the form would be sent to his supervisor for approval, and that his existing leave requests would need to be deleted and re-entered, given the change in supervisor, so that Mr Buchanan could approve them.  Dr Chia responded on the same day:

“Thanks for the advice on next steps. I’ve resubmitted my leave requests and will submit the resignation when I get to the Philippines. I leave Melbourne later tonight. Thank you very much for everything.”[18]

1. Dr Chia’s evidence is that his reference to submitting his resignation in the email was a reference to submitting the Employee Separation form, but that he had no intention of doing so and was ‘buying time’ hoping that his leave requests would be approved. Whilst he acknowledged this was a lie, he described it as a “lie in the face of an oppressive situation” and that “according to moral philosophy, you have the duty to tell the truth, but only to those who deserve the truth”. Dr Chia believed that Professor Nestor did not deserve the truth.[19]

1. On 1 March 2023, Professor Nestor forwarded an email to Dr Chia as follows:

Dear Chia,

Sincere greetings to you and I do hope all is well?

Chia, having had an opportunity to consult with HR (here Ms Danielle Kelson) I now write to advise further on the way forward –

1. Please provide an e-mail, addressed to Michael and I, indicating clearly that you wish to resign from your position at ACU following the expiration of current leave entitlements.

In addition, I suggest you liaise directly with Danielle to complete and formally lodge an Employee Separation form. Your full leave calculations and final day of work can be calculated through this process.

2. Current requests for long service requests (with Half-Pay) will then be approved.

Chia, I hope these steps and advice are clear and that you will be in a position to complete the actions outlined under item 1 above in the coming days.

1. Following this on 6 March 2023, Dr Chia emailed Professor Nestor confirming his resignation as follows:

“This email is to inform you of my wish to resign from ACU upon exhausting all the leave that I am entitled to.”

1. Dr Chia’s evidence is that he was being bullied into submitting his resignation, and that he only sent this email because he was being ‘held to ransom to send it and had sent it out of fear that my leave requests will be not be approved.”[20] After waiting for a few days and his leave remaining unapproved, he “left me with no real choice but to acquiesce to the dean’s demand. I desperately needed my leave approved. The leave had already begun by then and remained unapproved despite my applying for them four months earlier.”[21] Accordingly, he submits the email was not voluntarily given and cannot be treated as a resignation.

1. I accept Professor Nestor’s evidence that there was no causal connection in his email of 1 March 2023 between the request that Dr Chia provide an email clearly indicating his resignation and the approval of the long service leave applications.[22]  Professor Nestor does not approve Dr Chia’s leave, and there was only a short delay between the request that Dr Chia resubmit the applications because of the change in supervisor, and their approval.[23]  Professor Nestor rejected the suggestion that he had instructed Mr Buchanan not to approve the leave until Dr Chia sent the resignation email.[24]

1. I find that Dr Chia’s email of 6 March 2023 was a clear and unambiguous resignation from his employment, to take effect at the date his leave entitlements were exhausted. There is simply no basis to conclude that the resignation was not voluntarily given but was the product of coercion and force on the part of the ACU. There is also no suggestion that it was given in the heat of the moment.

1. Almost immediately upon receipt of Dr Chia’s email on 6 March 2023, his leave was approved.  Dr Chia did not then seek to revoke his resignation nor convey that he felt pressured to submit it.  Dr Chia submits that he feared that the ACU would cancel his leave, forcing him to return from abroad if he did so.[25]

1. On 21 March 2023, the ACU advised Dr Chia that it would take the email as his “formal resignation from the Australian Catholic University at the end of [his] currently approved leave period, which will be 10 January 2024”.[26] Dr Chia did not object to, or otherwise respond to this email until approximately a month later.  Dr Chia’s evidence is that he did not do so because he “genuinely feared that he would cancel my leave, forcing me to return from abroad” and that he  “was honestly afraid that the dean would further abuse his power and cancel my leave should I indicate my refusal to obey his dictates.”[27]  There is no basis to make any finding that Dr Chia was coerced to resign from his employment.

1. In any event, Dr Chia did not believe that his resignation could take effect unless he personally lodged the Employee Separation form on Staff Connect.[28]  In essence, Dr Chia thought that he could tell his employer that he resigned, even if he had no intention of meaning it. This is simply not the case.  An employee can resign from their employment at any time. It is a unilateral act, that requires no approval by the employer. The existence of internal administrative processes does not override an employee’s right to choose to end their employment. In other words, the completion of the Employee Separation form does not bring the employment relationship to an end, it is the communication by the employee of their resignation.

1. Further, the question of whether a resignation did or did not occur does not depend on Dr Chia’s subjective intention or understanding. Rather, it depends on what a reasonable person in the position of the parties would have understood was the position, based on what each party had said or done, in light of the surrounding circumstances. It is the conduct of the employer that is the essential element.[29]  The ACU would, in light of the extensive background, have clearly understood this to be confirmation of Dr Chia’s resignation.

1. As Dr Chia had not completed the form despite multiple requests to do so, on 13 April 2023, Mr Buchanan submitted it on his behalf.[30]  Dr Chia immediately queried this action. On 20 April 2023, Dr Chia said that he had a “rethink” of his situation and “respectfully ask[ed] that [his] notice of resignation be revoked for now.”[31] Dr Chia clearly understood that he had given notice of his resignation, otherwise there would be no need for it to be revoked. 

1. On 12 April 2023, the ACU sent out an organisation wide email which set out an expression of interest for voluntary redundancy. Dr Chia’s evidence is that if his employment had not ended, he would not have applied for voluntary redundancy.[32] Whilst I consider it unlikely that the call for expressions of interest had no bearing on Dr Chia’s position, it is not necessary to determine this question.

1. Dr Chia’s employment ended on 10 January 2024, following the exhaustion of his leave entitlements.[33]

1. In making these findings, where there is a conflict in the evidence between Dr Chia and Professor Nestor, I have preferred the evidence of Professor Nestor. His evidence and actions of the ACU are all consistent with an agreement being entered whereby Dr Chia’s resignation would take effect upon exhaustion of his leave.  I did not find Dr Chia a compelling witness. His evidence was almost entirely self-serving, he made few concessions and at times, only when presented with contrary evidence. Further, as noted above, he conceded that he had been dishonest in his communication with the ACU.  Whilst the duty to tell the truth in moral theology may be qualified, there was no reasonable basis for him to lie to Professor Nestor.  He did so because he erroneously believed that it served his interests to do so.

Conclusion

1. Dr Chia voluntarily resigned on 17 June 2022, as part of an agreement to enable him to be approved to work overseas from an off-campus location.  He confirmed on 24 February 2023 that he would submit the Employee Separation Form imminently.  He confirmed his resignation on 6 March 2023 in his email to Professor Nestor.

1. Dr Chia was not forced to do so because of any conduct by the ACU. His resignation was clear and unambiguous, and the ACU merely acted on it.

1. As Dr Chia was not dismissed within the meaning of section 386 of the Act, he is not entitled to make an unfair dismissal application. The application must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

K Chia, the Applicant, appearing on his own behalf.
D Williams of MinterEllison, with permission on behalf of the Respondent.

Hearing details:

2024.
30 April.

[1] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, Digital Hearing Book (“DHB”) p.59

[2] Respondent’s Outline of Submissions (JO), DHB p.143

[3] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.60, Transcript PN416-421.

[4] Transcript PN386-394.

[5] Witness Statement of Professor Nestor, DHB p.177.

[6] Ibid, DHB p.155-156.

[7] Ibid.

[8] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.59.

[9] Ibid.

[10] Ibid, p.60.

[11] See for example, DHB p.11.

[12] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.45.

[13] Witness Statement of Professor Nestor at [50], DHB p.160-161.

[14] Ibid, Exhibit DN-21, DHB p.222.

[15] Ibid, DHB p.156.

[16] Ibid, DHB p.156; Exhibit DN-10, DHB p.183.

[17] Ibid, Exhibit DN-11, DHB p.185

[18] Ibid, Exhibit DN-13, DHB p.192

[19] Transcript PN658-666.

[20] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.49.

[21] Ibid.

[22] Transcript PN1202-1205.

[23] Transcript PN1208-1215.

[24] Transcript PN1216-1217.

[25]Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.55

[26] Witness Statement of Professor Nestor, Exhibit DN-15, DHB p.197.

[27] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.55.

[28] Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.55.

[29] Bupa v Tavassoli[2017] FWCFB 3941 at [47].

[30] F2, DHB p.8.

[31] Witness Statement of Professor Nestor, DHB p.206

[32] Transcript PN828-874.

[33] Witness Statement of Professor Nestor, DHB p.158.

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