Lidong Han v State of Victoria (Department of Education) - [2023] FWC 1374

[2023] FWC 1374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Lidong Han
v

State of Victoria (Department of Education)

(U2022/8424)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 JUNE 2023

Application for an unfair dismissal remedy – allegation that applicant was not dismissed – allegation that applicant did not serve the minimum period of employment – application dismissed.

Mr Lidong Han, the applicant, applies under s 394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy. He alleges, inter alia, that he was dismissed from his teaching position at Araluen Primary School by the respondent, the State of Victoria. The respondent contends that the applicant was not protected from unfair dismissal within the meaning of ss 382(a) and 383(a) of the Act and that he was not dismissed within the meaning of ss 385(a) and 386 of the Act. Section 396 of the Act requires, inter alia, that the Commission must decide whether a person applying for an unfair dismissal remedy is protected from unfair dismissal before considering the merits of an application.

The respondent contends the Commission does not have jurisdiction to deal with the application on two bases. First, that the applicant has not met the minimum employment period of six months required under s 383 of the Act and therefore is not entitled to bring the application. Second, that the applicant was not dismissed within the meaning of s 386 of the Act as he resigned from his employment on 15 July 2022. The applicant contends that he did not resign from his employment and that he was dismissed by the respondent with effect on 31 July 2022.[1] Consequently the applicant contends that he met the minimum employment period of six months at the time when his dismissal took effect and so he is protected from unfair dismissal.

I have determined that the applicant did not resign but was dismissed. However, I have also determined that the date the dismissal took effect was before the applicant completed a period of 6 months’ employment. And so, as the applicant has not completed a period of employment with the respondent which is at least equal to the minimum employment period he is not a person protected from unfair dismissal, and the application must be dismissed. My reasons follow.

The applicant was employed by the respondent under a “fixed term” contract, having been offered fixed term employment in a letter dated 17 December 2021, which he appears to have accepted on the same day.[2] The applicant’s employment commenced under the fixed term contract on 28 January 2022 and would, but for the ending of the employment earlier (the cause and date of which is in dispute), have continued until 27 January 2023.[3] Mr Han was employed as a teacher at the Araluen Primary School to teach science, technology, engineering and mathematics (STEM), and he was also required by the school to teach sustainability, English as another language and Japanese.[4]

Ms Dee Groves is the Principal of Araluen Primary School and was involved in both the recruitment of the applicant into the employment and the ending of the employment. Ms Groves gave evidence that within the first month after Mr Han commenced teaching at the school, she began to receive complaints about Mr Han’s conduct from students, parents and staff.[5] Mr Han disputes that any complaints were made and says that Ms Groves “fabricated facts and fictitious allegations”.[6] For present purposes it is not necessary to resolve this dispute. It is sufficient to note that a meeting between Mr Han, Ms Groves and members of the school’s leadership team was held on 12 May 2022 and that by letter dated 13 May 2022 Ms Groves gave a summary of the issues raised during the meeting and detailed a purported agreement made during the meeting.[7]

Following some further complaints Ms Groves said she received from school staff, students and parents,[8] Ms Groves wrote to Mr Han on 21 June 2022 about these complaints.[9] Again the existence and veracity of the complaints is in dispute but for present purposes, I need not determine this dispute. It is sufficient to note that Mr Han provided a response by letter dated 12 July 2022[10] and Ms Groves issued Mr Han a letter of warning on 13 July 2022 advising Mr Han, inter alia, that repetition of the kind of conduct the subject of the warning may result in further action being taken, including the termination of his employment.[11] Later, on the evening of 13 July 2022, Mr Han sent Ms Groves two text messages.[12] The first, recorded as received by Ms Groves at 7:18 pm stated:

“Hello Princial (sic). I wish to negotiate a thing. If I resign (I mean assume), are you happy to withdraw (cancel) your written warning disciplinary action from the file of Department of Education?”[13]

A further message is recorded as received by Ms Groves at 8:53 pm stating:

“Hello Principal Groves. I accidentally just fell down now. I need a sick day leave for one day tomorrow (14 July 2022).”[14]

Ms Groves responded by text message the following morning at 8:13 am as follows:

“Good Morning Lidong, sorry to hear you are unwell. If you feel better today, we can meet at school to discuss matters further if you wish.”[15]

It is uncontroversial that on 15 July 2022, Mr Han attended the school to meet with Ms Groves. It is also uncontroversial that during that day there were several discussions between Mr Han and Ms Groves. Mr Han has produced, as part of his case, recordings of some but not all the conversations. He did not seek Ms Groves’ consent to record the conversations, nor did he disclose to Ms Groves that he was recording their conversations or parts thereof. Although recording these private conversations to which Mr Han was a party was not unlawful,[16] publication of the recordings in some circumstances might be.[17] Here the publication is arguably exempt[18] but this is not an issue I need to determine.

The respondent objected to the admission of the audio recordings. As to that objection, I accept that the audio recordings are not a complete record of the conversations between Mr Han and Ms Groves, and allowance is made for that fact. I do not accept that the incomplete nature of the recordings is liable to mislead. The recordings were filed and served at an early stage in the proceeding and the respondent has had ample opportunity to listen to the recordings (indeed it prepared a transcript). Ms Groves could have given evidence to correct or contextualise the recordings. I accept that Mr Han’s attempted cross examination of Ms Groves did not involve putting matters on the recordings to Ms Groves but rather involved, it must be said, badgering and berating Ms Groves and making exaggerated and unfounded allegations. Even making allowance for the fact that Mr Han is an unrepresented litigant, his conduct at various times during his cross-examination of Ms Groves (and at other times during the hearing) was, speaking colloquially, “over the top”, and unacceptable.

I do not accept the respondent’s contention that it was not afforded a fair opportunity to put matters to Ms Groves, as the time available to re-examine Ms Groves before the Christmas break was less than 5 minutes. The circumstances in which re-examination of Ms Groves occurred is recorded in the transcript as follows:

THE DEPUTY PRESIDENT: Now, what I’m going to do is this: you’ve had ample opportunity to ask relevant questions. You haven’t used most of the day particularly wisely in focusing your questions so I’m going to stop the examination now (indistinct) - - -
***DEE GROVES XXN MR HAN
MR HAN: Yes, Your Honour – please have a rest, Your Honour.
THE DEPUTY PRESIDENT: It’s not about me resting, Mr Han.
MR HAN: I am concerned (indistinct).
THE DEPUTY PRESIDENT: Don’t worry about my health, Mr Han. Ms Knowles, are you able to finish your re-examination in short compass? I tell you my problem is that because of circumstances beyond my control the whole system of the Commission is going to shut down in - - -
MS KNOWLES: Eight minutes?
THE DEPUTY PRESIDENT: - - - 10 minutes, nine minutes – eight minutes, yes.

MS KNOWLES: Deputy President, I had more detailed cross-examination. I’ll confine it to one topic for despite I think the unfairness that I think that places the respondent in.
RE-EXAMINATION BY MS KNOWLES [6.52 PM]
Ms Groves, you’ve been asked - - -
THE DEPUTY PRESIDENT: I’m happy to recall Ms Groves if that’s - - -
MS KNOWLES: I think, Deputy President, you’re aware the difficulty that we would have in that.
THE DEPUTY PRESIDENT: All right, off you go.[19]

The extract above speaks for itself. The time available was cut short because the hearing (the time of which was approaching 7:00 pm) was conducted by Microsoft Teams and the Commission’s systems where shortly to be shut down. An opportunity to recall Ms Groves on another occasion to complete re-examination was offered, but not taken up. There was no denial of a fair opportunity to re-examine Ms Groves. The respondent made a forensic decision to confine re-examination instead of taking up the opportunity offered by me to recall Ms Groves on another day.

To the extent that the respondent’s admissibility objection relied on the fact that the recordings, made secretly, are or might be inappropriate and corrosive of productive and trusting workplaces - that contention takes the matter of admissibility no further. Whilst the act of recording in the circumstances might provide a valid reason for dismissal and perhaps may be relevant to whether reinstatement is appropriate, those matters do not speak to admissibility. I consider that it is appropriate to admit into evidence the impugned audio recordings despite the circumstances of their making because I consider the recordings have a probative value which outweighs the covert circumstances in which the recordings were obtained.

The respondent prepared a transcript of the audio recordings which it provided to the Commission and Mr Han on 16 December 2022 and on 2 January 2023 Mr Han provided commentary criticising the accuracy of the respondent’s transcript. He also provided a further recording and transcript of a further discussion with Ms Groves on 15 July 2022 (details of which are later discussed). Separately, and after consulting the parties I caused an independent transcript of the recordings to be prepared by the Commission’s transcription services provider, Epiq. A copy of the transcript was provided to the parties. Mr Han proposed some edits. I have reviewed the transcript prepared by Epiq and after listening to the recordings again with the benefit of the transcript, I have made some edits, which are not particularly material, but which more accurately reflect the recordings. Extracts of that version of the transcript marked up with my edits, so far as is relevant, are set out later in this decision.

Ms Groves’ evidence about the discussions with Mr Han on 15 July 2022 was, inter alia, that:

·Mr Han came to school at around 11:00 am on 15 July 2022, asking to meet with Ms Groves;[20]
·Ms Groves met Mr Han, at around 11:15 am with Ms Roslyn Detering, a member of the school’s leadership team;[21]
·During the meeting, Mr Han said that he wanted to resign and that he offered his resignation. He said he did not want to keep working at the school;[22]
·Ms Groves told Mr Han that she was willing to accept his resignation, even though he was welcome to stay at the school where he would be supported with his performance and conduct issues;[23]
·Mr Han said he wanted to resign but he wanted Ms Groves to “make the warning disappear”, in those words or words to that effect;[24]
·Mr Han asked Ms Groves to withdraw the written warning from his Department of Education (Department) file and Ms Groves told Mr Han that she could not do that, but that she would give him a good reference on the phone and try to support him to obtain alternate employment, by being a person he could call for teaching or professional advice.[25]
·In response to Mr Han’s statement that he wanted to resign and would provide his resignation letter, Ms Groves:
o assured Mr Han that he would receive any entitlements owed to him;
o offered to pay Mr Han an additional two weeks’ ex gratia payment to support him in his return to South Australia; and
o noted that, whilst she could not remove the warning letter from his personnel file, she was prepared to support Mr Han to obtain alternate employment by providing him with a good reference on the basis that he had reflected on what constitutes acceptable conduct in Australian schools;[26]
·Mr Groves confirmed with Mr Han that this was what he wanted, and Mr Han said words to the effect that “this was very generous” and that he would prepare his resignation letter that day;[27]
·Later that day Ms Groves sent Mr Han text messages asking him to return his keys, fob pass and say goodbye to his colleagues in person as she had not heard from him and was not sure if he had already gone to South Australia;[28]
·Still later, Mr Han sent Ms Groves a text message advising that before he leaves the school, he wanted Ms Groves to sign his teacher registration evaluation form;[29]
·Ms Groves responded confirming she could meet Mr Han at the school later that day to discuss and would help where she could.[30]
·At around 4:15 pm Ms Groves met with Mr Han again, along with Mr Michael Evers another member of the school’s leadership team, and Ms Detering.[31]

Although Ms Groves’ evidence was that she thought this meeting was approximately three hours in duration,[32] in response to questions from me during her evidence Ms Groves accepted that there was no continuous meeting, and that the meeting was interrupted. During the interruption Mr Han left the room in which the meeting took place to speak to his father, and so the whole period, including interruptions, was approximately 3 hours in duration.[33] Ms Groves’ evidence was that during the meeting:

Mr Han started yelling and was adamant that Ms Groves sign his transfer for registration to a fully qualified teacher.[34]
Ms Groves told Mr Han that she was willing to sign his registration form if he provided evidence from an evaluator that he had demonstrated proficiency in the 7 Australian Professional Standards for Teachers;[35]
She told Mr Han on a number of occasions during the meeting, that he was welcome to continue working at the school and that she would support his professional development if he did.[36]
Mr Han told Ms Groves during the meeting, repeatedly, that he did not want to continue working at the school.[37]
Ms Groves told Mr Han that if he chose to resign, she could not agree to any of the conditions he requested but was willing to pay him two weeks’ ex gratia pay and would sign the registration form if he provided evidence from an evaluator about meeting the requirements.[38]
During the meeting, Mr Han emailed his letter of resignation to Ms Groves[39] which stated:

“Thank you for helping me complete the Evaluation Form of South Australian Teacher’s Registration today. And thank you for promising me that you will exempt me from the warning disciplinary action after my formal resignation. I am also very grateful to you for your kind offer to pay my salary for the two weeks from 18^th July 2022, as well as the payment in lieu of 14 days of sick leave and 30 days of annual leave.
I formally submit this letter of resignation to you today. Thank you very much for your help.” [40]

The resignation letter misrepresented the discussions during the meeting.[41]
Ms Groves had not completed the Evaluation Form of South Australia Teacher’s Registration form for Mr Han. She did not promise to exempt Mr Han from the warning disciplinary process, but she did offer to pay Mr Han’s salary for two further weeks, to assist him in his relocation back to South Australia. Mr Han had no sick leave or annual leave entitlement and Ms Groves did not agree to pay him 14 days sick leave in lieu, nor 30 days annual leave in lieu.[42]
During the meeting, Ms Groves reaffirmed numerous times that she was not asking for Mr Han’s resignation; that Mr Han had offered his resignation; that Mr Han agreed that he offered his resignation and wanted Ms Groves to accept it.[43]
Mr Han aggressively demanded that Ms Groves comply with his additional demands. During this time, Mr Han phoned his father and spent time translating the conversation to seek his father’s advice on how to proceed. Ms Groves and her colleagues spent time trying to explain how they would support him if he chose to continue working at the school and how they would support him in gathering the evidence he needed to transfer to full registration.[44]
Mr Han argued, refused to listen to Ms Groves and her colleagues and spoke over the top of Ms Groves and her colleagues;[45]
Ms Groves reiterated that she would not negotiate with him on any of his demands. She and colleagues left the building at approximately 7:00 pm.

Mr Han disputes much of Ms Groves’ version of events.[46] He relies on the recordings of the conversations. Before dealing with the proper characterisation and legal effect of the conversations on 15 July 2022, it is necessary to say something about Ms Groves’ evidence as summarised above. I make these observations having listened to the recordings, making allowance for the fact that the recordings are not a complete record of the entirety of the conversations held on 15 July 2022 between Ms Groves and Mr Han.

I do not consider that Ms Groves gave candid evidence. It was selective – painting herself as reasonable and Mr Han as unreasonable. Having dealt with and observed Mr Han during two days of hearing, I can accept that he is at times difficult to deal with, has a habit of interrupting, feigns language and comprehension difficulties to buy time and to excuse grossly exaggerated accusations, and is prone to exaggeration. That said I could not discern from any of the recordings (except for the further interaction which is discussed at [21] below) any raised voices by Mr Han as alleged. But Ms Groves can clearly be heard raising her voice on several occasions and yet no mention of this is found in her statement. I also could not discern Mr Han making any threat as alleged, but I could clearly hear Ms Groves threatening Mr Han’s ongoing capacity to work, both in the tone of her delivery and in the substance of the words she uttered. Ms Groves said to Mr Han “[b]ut as I said if you stay – if there’s one more thing there’ll be another letter – if I have to terminate your contract you will never work again”.[47] Ms Groves gave evidence that at the meeting, Mr Han emailed his letter of resignation to her,[48] suggesting that Mr Han had simply done this to confirm his resignation. She did not explain that she had requested to see the resignation letter. At one point late in the conversations, Ms Groves said to Mr Han “I will need to see the letter of resignation first and it needs to be signed by you first”.[49] And later Ms Groves said to Mr Han “[p]rovide me with the letter”.[50]

Although Ms Groves gave evidence that the resignation letter provided by Mr Han misrepresented their discussions, she failed to mention that she rejected the resignation letter and then asked for a “proper resignation letter”. So much is clear from the recording at attachment 7 to the application in which Ms Groves can be heard saying, “[t]hen give me a resignation letter that I am happy to accept”;[51] “I don’t accept that. You were stipulating conditions on there in writing. I am not accepting that”;[52] and “[w]ell, then give me your proper resignation letter”.[53]

For these reasons, I do not accept Ms Groves’ evidence about the conversations on 15 July 2022 with Mr Han unless her evidence is corroborated by the recordings, by some document that is in evidence or is not otherwise controversial. The recordings, though incomplete, are the best evidence of the material discussions between Ms Groves and Mr Han on that day. This is so also because, as earlier indicated, Mr Han has demonstrated himself, during the hearing, to be a person who feigns language and comprehension difficulties to buy time and to excuse grossly exaggerated accusations and is prone to exaggeration. As to the first of these observations, it is to be remembered that Mr Han was required inter alia to teach English at the school and he holds (or at least until 1 March 2023, held) a “Certified Interpreter Mandarin and English” credential by the National Accreditation Authority for Translators and Interpreters – which is the body responsible for setting national standards and the certifying authority for translators and interpreters in Australia.[54] I will return to that which may be concluded from the discussions and the purported resignation. But first it is necessary to complete the chronology.

First, the discussion on 15 July 2022 did not end in the manner described by Ms Groves in her statement. There was a further interaction which included Mr Han’s father and involved a dispute about the return of a security pass. There is a partial audio recording.[55] I have listened to that recording and I should note that both Mr Han and Ms Groves can be heard using raised voices. The substance of the conversation recorded is set out in an unverified transcript provided by Mr Han. No independent corroboration of the English translation of the communications between Mr Han and his father is provided but the transcription of the spoken English attributed to Ms Groves and Mr Han appears to be generally accurate. Ms Groves was asking, then instructing Mr Han to leave the school premises and asking for the return of the school’s fob and keys. Having listened to the recording, the gist of the conversation is summarised below:

· Mr Han asks Ms Groves, so what about Monday?
· Ms Groves responds that she is not in on Monday;
· Mr Han asks, so when will you solve this problem, principal?
· Ms Groves responds that there is no problem, she reiterates that she is not at school on Monday, but that Mr Han can speak with Mr Evers and Ms Detering;
· Ms Groves asks Mr Han: “Can you leave please?”
· Mr Han responds “I am a staff member. I still have right to stand here.”
· Ms Groves says: “No. You need to follow the principal’s direction. I get to say who stays on site and who doesn’t.”
· Mr Han then says: “You know. I just tried to negotiate with you.”
· Ms Groves says: “I need your keys and your fob, because my mind believes you are a risk. I need your keys.” And then she says: “That’s a direction. That is a direct, direct order I am giving you.”
· Mr Han responds with: “I need to consult the Department first, because I am still the…” And then with: “Because, because I think I am bullied.”; “I, I, I am bullied! I am bullied!”; “So I need to consult the Department.”
· Ms Groves says: “No! I need your keys and fob please!”
· Mr Han says: “No! You cannot force me to give you...”
· Ms Groves says: “I am asking.”

The exchanges summarised above are punctuated by various exchanges between Mr Han and his father, whom Mr Han called for advice and assistance. Mr Han was also cross examined about the exchange summarised at [21] above[56] and he approached his answers to questions in the manner described in [18] above, but ultimately gave answers which accord with this summary.

Second, Ms Groves gave evidence that on 13 July 2022 when Mr Han had provided a reply to her letter asking him to address a number of issues, and after the outcome letter was provided, Ms Groves noted that there was still non-acceptance or non-compliance with the directions. Ms Groves said that she had asked the Employee Conduct Branch of the Department how to progress the issue and she was advised to draft a directions letter to assist Mr Han to understand what was required of him. Ms Groves said that she drafted this on 14 July 2022. And after the lengthy discussions on 15 July 2022, during which she said there had been a lot of arguing and disrespect on Mr Han’s behalf toward her and her leadership team, when she arrived home, Ms Groves completed the directions letter while the earlier discussions were fresh in her mind. Ms Groves said that she drafted the letter intending to give it to her leadership team to provide Mr Han on Monday 18 July 2022 as she would not be there, and this is why the draft letter is dated 18 July 2022. However, as Mr Han did not return to the school (and presumably as she later purported to accept Mr Han’s resignation) the letter was not given to Mr Han.[57]

Presumably the draft letter is relied on, inter alia, as a contemporaneous note prepared by Ms Groves about what had occurred during the discussions on 15 July 2022. In that respect it adds little to what was in Ms Groves’ witness statement, save that some of the language used, such as “threatened legal proceeding”, “provided ultimatums”, “threatened . . . to do only one part of [his] job”, are in my view, plainly a self-serving and a subjective interpretation of things said by Mr Han during the discussions. Ms Groves’ evidence about the discussions is to be treated with caution for the reasons already articulated. However, both the content of the draft letter and the fact that it was finalised after her discussions with Mr Han, show that at least on 15 July 2022, despite having received the “resignation letter” Ms Groves did not consider Mr Han’s purported resignation to be effective. She had, after all, earlier rejected the letter as unsatisfactory and she wanted a “proper resignation letter”. This was because the resignation letter contained terms which Ms Groves said were not agreed. One might ask rhetorically, why bother finalising a draft directions letter to Mr Han in the evening of 15 July 2022 with the intention of instructing others to give the letter to Mr Han the following Monday at school, when Mr Han had earlier resigned with effect that day? The answer is of course because he had not done so. More about this shortly.

Third, at approximately 3:46 pm and 3:47 pm on 16 July 2022 Mr Han sent emails to Mr Evers and Ms Detering, the contents of which were the same:
“Please see the two links below. If you do not want to be involved in court case, please stop bullying and threatening me with false accusation. I am suffering a huge mental, health, reputational and financial damages from you for your unfair disciplinary action against me.
<<Dealing with bullying allegations against school principals>>
align="left"><<Teacher awarded six-figure payout after being bullied by school principal>>
gyk761.html”[58]
Fourth, in part because of the above emails, which Ms Groves considered were threats[59] (a view I do not share), Ms Groves contacted the Department’s Employee Conduct Branch on 16 July 2022 and apparently followed advice to provide written confirmation to Mr Han regarding the “acceptance of his resignation letter dated 15 July 2022”.[60] Aspects of this evidence are troubling. First, the resignation letter to which Ms Groves refers is not dated. In fact, no reference to 15 July 2022 is made in the letter. It simply states (after setting out terms which Mr Han believed had been agreed) that “I formally submit this letter of resignation to you today”.[61] It is uncontroversial that the letter was sent by Mr Han to Ms Groves by email in the late afternoon of 15 July 2022,[62] although Mr Han maintains it was a draft and it is not signed. Second, 16 July 2022 was a Saturday, and the emails to Mr Evers and Ms Detering were sent at 3:45/6 pm that day. The emails could not have been brought to Ms Groves attention earlier than the time the recipients received the email. I am troubled by Ms Groves’ evidence that contact was made with the Department’s Employee Conduct Branch late on a Saturday afternoon. The person with whom Ms Groves’ spoke is not identified, nor was any written advice produced. If the advice was given by the Employee Conduct Branch, I find it highly improbable that it was given late in the afternoon on a Saturday.

Nevertheless, Ms Groves said that she was informed by the Employee Conduct Branch that she could accept Mr Han’s resignation in paragraph two of his letter, notwithstanding that she “did not accept the incorrect lies” in the first paragraph of the letter.[63] Putting to one side the tautological flourish in Ms Groves’ evidence, if the person from the Employee Conduct Branch who is said to have given this advice was fully informed of the relevant facts, the advice was erroneous. Apart from anything else, a resignation is self-executing. Unless a contractual term expresses a contrary requirement (which in this case it does not), there is no requirement for a resignation given by an employee to be accepted by an employer. Expressions to the effect that a resignation is tendered and accepted, though used commonly, are no more than linguistic courtesies,^{^[64]} and provided a notice of resignation is valid, because it is usually a unilateral act, a purported refusal to accept it (or its acceptance) does not alter its legal effect.[65] Here however, there was a fixed term contract not capable of termination on notice and so, its unilateral termination by either party was arguably not possible, save for some limited exceptions not presently relevant. Agreement was required to bring the employment contract to an end before the term expired. The resignation letter as an offer to terminate prematurely would need to be accepted. Acceptance would need to accord with the conditions attaching to the offer. Acceptance of part of the offer is not possible and would amount to nothing more than a counteroffer. But there is no evidence of the factual instructions provided by Ms Groves to the Employee Conduct Branch.

It is convenient here to deal with some general principles about notice of resignation and the effect on the contract of employment and the employment relationship. Notice of a resignation operates to end the employment contract when the period specified expires, or is due to expire, unless the contract is properly ended earlier by some other cause, such as summary dismissal of the employee for misconduct, or the notice is withdrawn by agreement. It should be noted that the purported resignation letter does not specify when the resignation is to take effect but simply specifies that the letter is submitted “today”. A valid resignation notice, once given, cannot be withdrawn without the consent of the employer to whom the notice was given. But an employer continuing to refuse to accept the notice may be evidence of consent to any subsequent withdrawal of the notice. A resignation given in a moment of heightened emotional upset may not be valid and may be capable of being withdrawn. If an employer knew, or should have known, that an employee suffering a degree of confusion or pressure at the time of giving notice to resign such that the act was not a considered or voluntary act, it is not open to the employer to resolve to accept the resignation.[66]

Invalid notice (for example, because it is not given in accordance with the requirements in an award, enterprise agreement or employment contract, or because it specifies too short a period), will not operate to end the contract of employment. But it may end the employment relationship if, for example, an employee is given (or gives) short notice and is excluded from the employer’s premises when the period of notice expires.[67]

An invalid or inadequate resignation notice may be made effective by the employer’s acceptance[68] or it may be treated as an offer to terminate capable of acceptance.[69] But whether a particular notice should be treated as an offer to terminate is a matter of construction of the particular notice.[70]

An invalid or inadequate resignation notice may constitute repudiation of the obligation to continue in the employer’s service until the employment contract is properly terminated.[71] Such a notice can be withdrawn unilaterally[72] at any time before repudiation is accepted by the employer because an unaccepted repudiation does not end the contract of employment nor the employment relationship.[73] A repudiatory resignation notice which is accepted by the employer, will bring the employment contract to an end on acceptance[74] rather than from the time of the repudiation constituted by giving invalid notice.[75]

Of course, a fixed term employment contract is characterised by the absence of termination by notice provisions. Such contracts end at the end of the period specified and may be terminated in cases justifying summary dismissal, by the acceptance of a repudiation and by agreement, but not by the unilateral giving of notice of termination by one party to the other. The employment relationship under a fixed term contract may end even though the contract has not been validly terminated, for example by an employer telling the employee that the employee is dismissed before the term expires and not allowing them to attend the workplace. In such a case there is repudiation, and absent its acceptance by the employee, the contract remains on foot because it has not been lawfully terminated, but the employment relationship has plainly ended.

Fifth, on 17 July 2022 at 11:14 am Ms Groves sent an email to Mr Han, by responding to the email Mr Han had sent on 15 July 2022, attaching a resignation letter.[76] The email was in the following terms:
“I accept your resignation as per email on Friday 15^th July 2022, effective from that date.
This will be processed on Monday.
The offer of two weeks (sic) pay still stands.
The offer to complete the registration form still stands after you have shared evidence with an evaluator to demonstrate meeting the proficient level in all of the 7 Australian professional standards for teachers as required. The warning disciplinary action has already occurred as part of the outcome letter you received on 13th July 2022.
Please call the school on Monday to arrange a time with leadership (Mick Evers and Ros Detering) to return your security key and fob, and to collect any personal items still at school.”[77]
Sixth, at about 5:34 pm on 17 July 2022, Mr Han sent an email to Ms Groves (cc’d to Mr Evers and Ms Detering) as follows:

“On the morning on 15^th July 2022, you asked me to go to your office and explicitly promised the following conditions:
1.If I agree to resign, you will exempt me from the warning disciplinary action;
2.Paying me two weeks’ salary from 18^th July 2022 as well as payment in lieu of 14 days of sick leave and 30 days of annual leave.

The draft Resignation Letter I sent to you on the afternoon of the same day further clarified three conditions for resignation:
1.You help me complete the Evaluation Form of Transition to Full Teachers’ Registration of South Australia;
2.If I agree to resign, you will exempt me from the warning disciplinary action:
3.Paying me two weeks’ salary from 18th. July 2022 as well as payment in lieu of 14 days of sick leave and 30 days of annual leave.

But you didn’t fulfil any conditions and went back on your words. You asked me to send you the draft of my resignation letter without my official signature for you to print: you unilaterally deleted the three conditions mentioned in the draft of the resignation letter and forced me to sign it. I refused to sign (I have evidence to proof). So what do you base to say I resigned? Your (sic) such a dishonesty misconduct is a serious infringement and you are subject to legal responsibility; the purpose of your fraud and deception is to force me to resign and you want to break the contract, but you don’t want to bear the consequences of salary loss in the second half of the year and liquidated damages compensation.
You started bullying me at the end of the second term. You violated the teaching scope stipulated in the contract and instructed other employees to use individual unreasonable students who make trouble without reason to interfere with my teaching to cause classroom chaos, and you used these false facts as an excuse to make false accusation against me without any evidence; your false accusation has caused me great mental damage and psychological trauma and caused me serious depression and anxiety. Your misconduct has caused me sleepless all nights and produced suicidal tendencies.
At present I have resumed my union membership. They told me that if you unilaterally forcibly fire me or force me to resign, you must compensate me for the loss of wages and liquidated damages in the second half of the year. And I can also sue you in the federal court for your bullying, deceiving and dishonesty of fabricating facts about me, and for unilaterally giving me disciplinary action without hearing and confrontation and forcing me to resign; your bullying and dishonesty have caused me great mental damage and psychological trauma, and caused me serious depression and anxiety. Your bullying and dishonesty made me sleepless all nights and produced suicidal tendencies. The compensation for mental losses you caused to me will exceed six figures.
Please refer to the links below.
<<Dealing with bullying allegations against school principals>>
https”//russellkennedy.com.au/insights-events/insights /dealing-with-bullying-allegations-against-school-principals
<<Teacher awarded six-figure payout after being bullied by school principal>>
https:/ type="1">
Seventh, at about 5:58 pm on 17 July 2022, Mr Han sent a text message to Ms Groves as follows:
“Your unfair disciplinary action against me has caused me a heavy blow, which has caused me depression and anxiety, and caused me insomnia and severe headache. I need a week’s sick leave from 18th July 2022 to recover.”[79]
Eighth, it appears that a second letter purporting to accept Mr Han’s resignation was sent to Mr Han on 18 July 2022, by another staff member of the school but with Ms Groves’ authorisation, and the staff member was following processes that she believed were correct. So, Mr Han was sent two documents each of which purported to accept the resignation - the first is at Attachment DG-12A of Ms Groves’ witness statement; the second, which is on school letterhead, dated 18 July 2022 is found after the resignation letter attached to Ms Groves’ statement but not dealt with in her statement.[80]
Ninth, at 12:08 pm on 25 July 2022 Ms Detering sent an email to Mr Han as follows:
“In accordance with employee conduct, you have resigned. As previously requested, you need to return your school key, the security fob and the teacher’s desk key that was assigned to you.
We ask that you please make arrangements to sign these in at the school office as soon as possible.”[81]
Mr Han responded at 3:06 pm as follows:
“1. Please cancel the unfair warning disciplinary action decision made in the way of violating legal procedures by Principal Groves on July 13 against me;
2. Please ask Principal Groves to fulfill the resignation conditions she promised in the conversation on the morning of 15th July.
If you completely fulfill the above two conditions as soon as possible, I will immediately return the school key, the security fob and the teacher’s desk key assigned to me. I need to leave this small town. I have appealed the bullying behavior (sic) of Principal Groves who forced me to resign to the Merit Protection Board. Please wait for the result of the appeal.”[82]
Tenth, Mr Han was paid his “final pay” on 28 July 2022 which included the two weeks ex gratia payment.[83] Mr Han was also paid an amount of $1,149.00 purportedly under the Victorian Government Schools Agreement 2022. Ms Groves said that Mr Han was not entitled to the payment, as it was only applicable to employees who were current employees as at 25 July 2022 and because Mr Han’s final pay was processed after this date on 28 July 2022, this additional payment was included in his final payslip in error.[84]
The last part of this explanation cannot be accepted. As the second payslip in Attachment DG-16 makes clear, the amount was paid one month after the final payment. The final payment was made on 28 July 2022, while the additional amount was paid on 25 August 2022 and so plainly was not “included in his final payslip in error” as Ms Groves contended.
Eleventh, Ms Groves said that the Department’s Human Resources team confirmed by email on 9 September 2022 to Ms Susie Cantwell, the School’s Business Manager, that at the time of his resignation, Mr Han had no annual leave accrued and that he was not entitled to be paid personal leave upon termination.[85] The summary attached to the email appears to suggest that the effective date of the termination of Mr Han’s employment was 31 July 2022.[86]

Finally, at some point in July 2022 Mr Han lodged a grievance with the Merit Protection Board[87] about the following matters. First, that Ms Groves had no power under the Education and Training Reform Act 2006 to take disciplinary action against Mr Han. Second, that Ms Groves broke her promise, reached with Mr Han on the morning of the 15 July 2022, concerning the terms of his resignation. Third, the facts cited in the letter of warning from Ms Groves of 13 July 2022 (which constituted the disciplinary action) do not conform to the true state of affairs.[88] On behalf of the Senior Chairperson of the Board, Ms June Weir, then the Board’s Registrar wrote to Mr Han about the grievance on 2 August 2022. Relevantly, as to the second of the matters raised in the grievance, Ms Weir advised Mr Han as follows:

“I make the following comments in relation to your second point listed above (i.e., (that the principal broke her promise, reached with you on the morning of the 15th of July 2022, concerning the terms of your resignation).
a.        The records of the conversations on the 15 July 2022 reveal that the principal made certain promises on the condition that you submit your resignation effective that date.
b.        The same records reveal that you submitted a resignation subject to conditions, and that the principal rejected your resignation and those conditions.
c.        As your resignation was not effective on the 15th of July 2022, it follows that whatever promises the principal may have made, those promises did not come into operation, namely because your resignation did not come into operation on the 15th of July 2022.

. . . [89]

What followed in that correspondence is a not-so-subtle suggestion that in light of the above, Mr Han’s grievance might be refused on the ground that it is vexatious because it is obviously untenable or manifestly groundless. Mr Han is given 14 days to make submissions on whether his grievance on this ground should be refused.[90] There is no evidence about the status of that proceeding and, in any event, that proceeding is not relevant to any issue I need to decide. However, I will make one observation. For the reasons which will shortly become apparent, Ms Weir’s assessment set out in the preceding paragraph was in my view correct.

On the evidence, I do not consider that Mr Han resigned from his employment with the respondent.

An application for an unfair dismissal remedy may only be made by, relevantly, a person who has been dismissed (s 394(1)). Section 386(1) of the Act sets out the meaning of ‘dismissed’ as follows:

(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.

The expression “terminated at the initiative of the employer” is a reference to a termination that is brought about by an employer, and which is not agreed to by the employee.[91] A termination is at the employer’s initiative when the employer’s action “directly and consequentially” results in the termination of the employment and includes circumstances where had the employer not taken particular action, the employee would have remained employed.[92] The expression “employment … has been terminated” in s 386(1)(a) is a reference to a termination of the employment relationship and/or termination of the contract of employment.[93]

A valid resignation freely given does not involve a person’s employment being terminated on the employer’s initiative.

As the factual chronology earlier set out discloses, on 13 July 2022 Mr Han was issued with a formal letter of warning. Later that evening Mr Han sent Ms Groves a text message in which he said, “I wish to negotiate a thing”. That “thing” was a withdrawal of the written warning in consideration for his resignation. Mr Han was absent from the school on sick leave on 14 July 2022. A meeting between Mr Han and Ms Groves (and others) was held during the course of 15 July 2022. And as is evident from the chronology, several discussions between Mr Han and Ms Groves ensued during that day.

I do not accept, as Ms Groves sought in her evidence to characterise events, that during the meeting Mr Han wanted to resign and he offered Ms Groves his resignation. Nor do I accept that during the discussions Mr Han wanted to resign and said he would provide his resignation letter unconditionally. That which Mr Han sought to do during the course of the several discussions on 15 July 2022 was to negotiate the terms on which he would tender his resignation. This was evident from his first text message to Ms Groves on 13 July 2022 and throughout the various discussions Mr Han had with Ms Groves on 15 July 2022.

During the discussions on 15 July 2022 Mr Han sought specific terms to be agreed as a condition of his resignation. Ms Groves agreed to some but not others. She agreed to the two weeks ex gratia payment (which she had herself earlier proposed). She did not ultimately agree to any payment of sick and annual leave in lieu (although she appears early on in the discussions to have done so). She agreed to not forward the warning to the Department and to not mention the warning in any reference inquiries from prospective employers, but she did not agree to remove the warning from Mr Han’s personnel file held by the school. Ms Groves also indicated to Mr Han that she would assist him in completing the evaluation form for Teacher Registration in South Australia, but he first had to share evidence with an evaluator to demonstrate that he met the proficient level in all 7 of the Australian Professional Standards for Teachers as required. The audio recordings record aspects of the conversations about the various conditions which Mr Han sought to negotiate. The first substantive negotiation appears to have occurred during the morning of 15 July 2022. Using the edited Epiq transcript of the recordings I have sought to compartmentalise the discussions by subject matter below.

As to the warning removal, the recordings disclose the following exchanges:

PN3MS GROVES: - - - that is extremely confidential. The meeting about you. Yes? So just to let you know it’s confidential. Now, did you have some thoughts or - - -
PN4MR HAN: Yes. I’m asking you in your text message.
PN5MS GROVES: M’mm. I am – yes – so, you’re not aware that LidDong sent me a message asking if he was able to resign and that the information wouldn’t follow him. So I would be – I will be willing to do that.
PN6MR HAN: You will be willing to do that?
PN7MS GROVES: Yes.
PN8MR HAN: Withdraw. Are you willing to withdraw the warning letter discipline – the disciplinary action from the file of (indistinct).
PN9MS GROVES: Yes. So - - -
PN10MR HAN: But you’re happy to do that?
PN11MS GROVES: What I can do is I will not refer to it.
PN12MR HAN: What do you mean by not refer to it?
PN13MS GROVES: When you go for another position - - -
PN14MR HAN: Yes.
PN15MS GROVES: - - - the principal always rings the other principal.
PN16MR HAN: Yes.
PN17MS GROVES: And I am happy to support you.
PN18MR HAN: Yes.
PN19MS GROVES: In looking for another position. So I will - - -
PN20MR HAN: Oh, you mean you are happy to give me good reference?
PN21MS GROVES: Yes.
PN22MR HAN: Oh – oh - - -
PN23MS GROVES: Yes.
PN24MR HAN: Oh, thank you.
PN25MS GROVES: And then that document should not follow you. But I am happy to support you in looking for work elsewhere - - -
PN26MR HAN: Oh - - -
PN27MS GROVES: I think it probably would be that place – the stage we are at the school - - -
PN28MR HAN: Right.
PN29MS GROVES: - - - I think your offer to do that is probably good for you.
PN30MR HAN: All right.
PN31MS GROVES: As well as the school.
PN32MR HAN: Right.
PN33MS GROVES: And I’d be happy to support you to do that.
PN34MR HAN: Oh, okay. So may I clarify? You’re happy not to file the warning disciplinary action to my personnel file of (indistinct) Department of Education anymore?
PN35MS GROVES: I will not be - - -
PN36MR HAN: Just clarify.
PN37MS GROVES: Yes. I will not be sending that document.
PN38MR HAN: Okay.
PN39MS GROVES: Anywhere.
PN40MR HAN: Okay. Would you please write this for me and - - -
PN41MS GROVES: Yes.
PN42MR HAN: - - - write this for me and I will prepare the resignation email to you. From that.
PN43MS GROVES: Yes. Yes. Yes.
PN44MR HAN: Yes. Yes. Yes.
PN45MS GROVES: That’s fine.

. . .

PN222MR HAN: Yes. And also I need your – sign a letter so you will not file me the warning to Department of Education as well.
PN223MS GROVES: Yes. I will not be – yes, I will not be mentioning it.
PN224MR HAN: Yes.
PN225MS GROVES: Yes. But legally I’m not – legally I’m not allowed to do that.
PN226MR HAN: Oh - - -
PN227MS GROVES: So – but you have my word.
PN228MR HAN: But would – would ~~this be as~~ you please write it down just in case you forget.
PN229MS GROVES: I won’t forget.
PN230MR HAN: Ah - - -
PN231MS GROVES: And, legally, I’m not allowed to. So I’m just – I’m letting you know - - -
PN232MR HAN: Yes.
PN233MS GROVES: - - - that I cannot do that.
PN234MR HAN: Oh – just in case we need ~~that there's something there~~ to submit it to personnel to file ~~something then~~ document to ~~the~~ department. Just in case. If it does have it.
PN235MS GROVES: No. No one has it.
PN236MR HAN: No one has it?
PN237MS GROVES: No.
PN238MR HAN: Have you already filed this to the Department of Education?
PN239MS GROVES: No, I haven’t. Not to HR and no - - -
PN240MR HAN: You have not filed that yet?
PN241MS GROVES: Not to Human Resources.
PN242MR HAN: Oh – okay. So - - -
PN243MS GROVES: It will stay here with me.
PN244MR HAN: Yes. Yes.
PN245MS GROVES: I have not sent it to Human Resources.
PN246MR HAN: So you will promise you do not send to the ~~Human~~ HR Resources ~~then~~ right?
PN247MS GROVES: Yes. I will not send it to Human Resources.
PN248MR HAN: Okay.
. . .

As to the evaluation form for South Australian teacher registration, the recordings disclose the following exchanges:

PN46MR HAN: And also would you please return me the South Australian ~~reservation~~ registration evaluation form back to me?
PN47MS GROVES: Oh, yes. I can do that.
PN48MR HAN: Yes. Yes.
PN49MS GROVES: Yes. I am, as I said, I am willing to support you --
PN50MR HAN: Yes.
PN51MS GROVES: -- Iin another position and I ~~have no doubt~~ know that there are many good things - - -

. . .
PN55MS GROVES: I have no doubt your – you know –that your heart is in the right place.
PN56MR HAN: Yes.
PN57MS GROVES: So I am more than happy to talk about that.
PN58MR HAN: Yes.
PN59MS GROVES: And not about the other things. Now - - -
PN60MR HAN: Okay.
PN61MS GROVES: - - - I actually can’t put that in writing.
PN62MR HAN: Right.
PN63MS GROVES: But you have my word.
PN64MR HAN: Thank you very much.
PN65MS GROVES: You have my word.
PN66MR HAN: So do you mean I can be assured to writing your name in to a reference letter?
PN67MS GROVES: Yes.
PN68MR HAN: Or a reference and they call you and you will help me to getting employed.
PN69MS GROVES: Yes. Yes.
PN70MR HAN: Okay.
PN71MS GROVES: Because I feel that [someone coughing] after this process - - -
PN72MR HAN: Yes.
PN73MS GROVES: I- - - I think you are more aware - - -
PN74MR HAN: Yes.
PN75MS GROVES: - - - of what can be done in the school - - -
PN76MR HAN: Yes.
PN77MS GROVES: - - - ~~and~~ what cannot be done. [Someone coughing].
PN78MR HAN: Yes.
PN79MS GROVES: Do you want some water? Yes. As I said I know that – yes, going forward, I know there’s a lot of things you have learned.
PN80MR HAN: Ah - - -
PN81MS GROVES: And as I said a lot about your knowledge, your enthusiasm for the school, you know the teaching and everything. [Someone coughing].
PN82MR HAN: Mm.
PN83MS GROVES: I think it would be lovely for you to be able develop in your teaching career.
PN84MR HAN: Mm.
PN85MS GROVES: So as I say I’m happy to support you into the next place and I’ll also offer if you are very unsure about something in your new working place you’re more than welcome to ring me and I can let you know what is acceptable or not acceptable.
PN86MR HAN: Oh, that’s great. Thanks.
PN87MS GROVES: And I will extend my offer of assistance after you’ve gone - - -
PN88MR HAN: Oh, I appreciate that very much.
PN89MS GROVES: - - - that’s okay. Yes.
PN90MR HAN: Yes. Yes.

. . .

As to the resignation letter, the recordings disclose the following exchanges:

PN5MS GROVES: M’mm. I am – yes – so, you’re not aware that LidDong sent me a message asking if he was able to resign and that the information wouldn’t follow him. So I would be – I will be willing to do that.

. . .
PN91MS GROVES: Yes. Now you can – when were you thinking of doing the letter?
PN92MR HAN: Because I didn’t – because my back is hurt then I didn’t bring many things - - -
PN93MS GROVES: That’s okay.
PN94MR HAN: - - - (indistinct) I didn’t bring any yet.
PN95MS GROVES: No.
PN96MR HAN: I will after I go home - - -
PN97MS GROVES: Mm.
PN98MR HAN: - - - after we’ve finished meeting I’ll go home and I prepare in meeting then - - -
PN99MS GROVES: Mm.
PN100MR HAN: - - - and I’ll do thate ~~outline~~ as soon as possible.
PN101MS GROVES: Mm.

. . .
PN131MS GROVES: So are you wanting to resign effective of - effectively from today or - - -
PN132MR HAN: If I resign from today that today’s salary will be deducted. Right?
PN133MS GROVES: No. No, salary will be paid in full.
PN134MR HAN: I need to prepare the email and please watch my email.
PN135MS GROVES: Yes. I will.
PN136MR HAN: Yes. Yes. Let me – let me - - -
PN137MS GROVES: Yes.
PN138MR HAN: - - - give you email and tell you what is exact date (indistinct) take effect.
PN139MS GROVES: Yes.
PN140MR HAN: Yes.
PN141MS GROVES: Okay. Yes.
PN142MR HAN: Mm.
PN143MS GROVES: So if you need to – as I said you can resign as of today.
PN144MR HAN: Oh - - -
PN145MS GROVES: Or next week or two weeks.
PN146MR HAN: Yes.
PN147MS GROVES: In HR it is possible.
PN148MR HAN: Mm.
PN149MS GROVES: So if you gave me a resignation letter today - - -
PN150MR HAN: Yes.
PN151MS GROVES: - - - then that’s all – there would be no more obligation. Okay?
PN152MR HAN: What do you mean by no more obligation?
PN153MS GROVES: So you would have no obligation to come to school - - -
PN154MR HAN: Uh-huh.
PN155MS GROVES: - - - and we have no obligation to pay you.
PN156MR HAN: I see. I see. I try to give you by Monday is that okay?
PN157MS GROVES: By Monday?
PN158MR HAN: Yes.
PN159MS GROVES: Well, what I am going to offer you - - -
PN160MR HAN: Yes.
PN161MS GROVES: - - - because I do want you to know that - - -
PN162MR HAN: Yes.
PN163MS GROVES: - - - I would ~~like~~ love to support you - - -
PN164MR HAN: Okay.
PN165MS GROVES: - - - in ~~the application~~ your profession.
PN166MR HAN: Mm.
PN167MS GROVES: If you wanted to have the resignation - - -
PN168MR HAN: Yes.
PN169MS GROVES: - - - from next Friday? For example – so if the resignation is next Friday.
PN170MR HAN: Yes.
PN171MS GROVES: If you go home today - - -
PN172MR HAN: Mm.
PN173MS GROVES: - - - and you write me the letter - - -
PN174MR HAN: Ah - - -
PN175MS GROVES: - - - that you’re resigning - - -
PN176MR HAN: Yes.
PN177MS GROVES: I’m to assist you in moving back to South Australia.
PN178MR HAN: Oh - - -
PN179MS GROVES: To find another position.
PN180MR HAN: Mm.
PN181MS GROVES: I am happy to give you another two weeks’ pay.
PN182MR HAN: What’s that mean?
PN183MS GROVES: So if you resign today - - -
PN184MR HAN: Yes.
PN185MS GROVES: - - - then you get paid - - -
PN186MR HAN: Yes.
PN187MS GROVES: - - - up till today.
PN188MR HAN: Yes.
PN189MS GROVES: And then no more.
PN190MR HAN: Oh, yes.
PN191MS GROVES: Yes.
PN192MR HAN: Yes.
PN193MS GROVES: So what I am offering you - - -
PN194MR HAN: Yes.
PN195MS GROVES: - - - is if you want to resign today - - -
PN196MR HAN: Yes.

. . .
PN249MS GROVES: But if you want to do - - -
PN250MR HAN: Okay.
PN251MS GROVES: - - - a resignation from today - - -
PN252MR HAN: Yes.
PN253MS GROVES: - - - I will then give you the two weeks’ pay - - -
. . .

As to the additional payments (2 weeks ex gratia, annual and sick leave), the recordings disclose the following exchanges:

PN102MR HAN: By the way may I ask you a question about – I used the one day sick leave. I have another ~~personal day~~ 13 days’ sick leave and I haven’t used the 30 days’ annual leave yet so will they be paid in lieu of ~~my (indistinct)~~money? Okay.
PN103MS GROVES: Yes. So they will pay all of that out.
PN104MR HAN: Oh, thank you.
PN105MS GROVES: ~~This time~~ Which is fine. The day that you had yesterday – the sick day - - -
PN106MR HAN: Yes. Yes. Yes.
PN107MS GROVES: - - - I am going to let you keep that.
PN108MR HAN: What do you mean by keep that?
PN109MS GROVES: Because when you get – when you use up a sick day - - -
PN110MR HAN: Yes.
PN111MS GROVES: - - - so for example you’re away sick but you still get paid for that day.
PN112MR HAN: Oh, really? Do you mean you still need to – you don’t come back as sick leave?
PN113MS GROVES: No. I won’t count that as sick leave - - -
PN114MR HAN: Oh - - -
PN115MS GROVES: - - - because I know that it was – I mean you’ve hurt your back but it’s also then upsetting.
PN116MR HAN: Oh - - -
PN117MS GROVES: So for your mental health as well.
PN118MR HAN: Mm.
PN119MS GROVES: So I’m happy to pay you for that day as well - - -
PN120MR HAN: Oh, yes.
PN121MS GROVES: - - - and we’ll pay – pay you an extra day for cover.
PN122MR HAN: Oh, yes. Thank you very much.
PN123MS GROVES: So that’s fine.
PN124MR HAN: Mm.
PN125MS GROVES: So, yes – so you’re welcome if you want to go home now or somewhere and create – write the letter – you can.
PN126MR HAN: Do you mean – if you (indistinct) today I leave as well if I go home now. Right?
PN127MS GROVES: Pardon?
PN128MR HAN: If I go home now it does not affect my salary today. Right?
PN129MS GROVES: No. No. No.
PN130MR HAN: Okay.

. . .
PN197MS GROVES: - - - I will still pay you.
PN198MR HAN: Mm.
PN199MS GROVES: For two weeks.
PN200MR HAN: For two weeks?
PN201MS GROVES: Yes.
PN202MR HAN: Plus the annual leave?
PN203MS GROVES: Yes.
PN204MR HAN: And the ~~personal~~ 13 days’ sick leave ~~for this~~?
PN205MS GROVES: Yes.
PN206MR HAN: Okay.
PN207MS GROVES: Yes – too – and I don’t have to.
PN208MR HAN: Oh - - -
PN209MS GROVES: This is just my private call.
PN210MR HAN: Oh, yes.
PN211MS GROVES: As my way to let you know - - -
PN212MR HAN: Oh - - -
PN213MS GROVES: - - - that we have appreciated what you’ve done.
PN214MR HAN: Yes.
PN215MS GROVES: And I would like to help you transition into another job as well.
PN216MR HAN: Oh - - -
PN217MS GROVES: Just so you know – I don’t have any money.
PN218MR HAN: Yes. Yes.

PN219MS GROVES: To give you that buffer.
PN220MR HAN: Thank you for that ~~- yes~~ generous.
PN221MS GROVES: Yes. That’s okay.
. . .
PN249MS GROVES: But if you want to do - - -
PN250MR HAN: Okay.
PN251MS GROVES: - - - a resignation from today - - -
PN252MR HAN: Yes.
PN253MS GROVES: - - - I will then give you the two weeks’ pay - - -

PN254MR HAN: Yes.
PN255MS GROVES: - - - and that will give you some money - - -
PN256MR HAN: Ah - - -
PN257MS GROVES: - - - to help you make claim.
PN258MR HAN: Oh - - -
PN259MS GROVES: And when looking for another job and I will support you in looking for another job.
PN260MR HAN: With that some money.
PN261MS GROVES: Two weeks’ pay - - -
PN262MR HAN: Oh, no I was meaning that - - -
PN263MS GROVES: Yes. Plus the sick leave, plus the annual leave. So you will get all of the money you’re entitled to - - -
PN264MR HAN: Yes.
PN265MS GROVES: And I am happy to cover two weeks.
PN266MR HAN: Thank you.
PN267MS GROVES: Which I don’t have to - - -
PN268MR HAN: Yes. Thank you very much.
PN269MS GROVES: And I’d like to help and let you know that you are supported in that way.
PN270MR HAN: Yes. If I look for job in South Australia for the evaluation form - - -
PN271MS GROVES: Mm.
PN272MR HAN: - - - please return~~ing~~ back to me.
PN273MS GROVES: Yes. I will give that back to you.
PN274MR HAN: Yes. Yes.
PN275MS GROVES: So I will give that to you. Like when you’ve come back with the letter - - -
PN276MR HAN: Yes. Yes.
PN277MS GROVES: - - - I will dig it out and offer that back to you.
PN278MR HAN: Yes. Yes.
PN279MS GROVES: If that’s okay?
PN280MR HAN: Yes, sure. Sure and then (indistinct).
PN281MS GROVES: Yes. Yes. Are you happy with that?
PN282MR HAN: Oh, yes. Yes.
PN283MS GROVES: Yes?
PN284MR HAN: Mm – thank you for this generous - - -
PN285MS GROVES: Oh, it’s all good. Yes.
PN286MR HAN: Yes. Yes.
PN287MS GROVES: As I said I’m happy to support you.
PN288MR HAN: Yes. Yes.
PN289MS GROVES: And you have my word with that.
PN290MR HAN: Yes. Yes. Sure. Sure. So thank you very much.
PN291MS GROVES: Okay. You’re welcome.
PN292MR HAN: Thanks. Yes. See you. Bye bye.
PN293MS GROVES: See you. Bye.

At this point there appears to be some agreement “in principle”. It appears that on condition that Mr Han submitted his resignation “today” (15 July 2022), Ms Groves would be his referee, not refer to the warning letter, assist with the South Australian teacher registration evaluation, pay him without recourse to sick leave credits for 14 June 2022 and for 15 June 2022, pay him an ex gratia payment of 2 weeks’ pay, and pay “13 days (14 if the credit for 14 June is included) sick leave and 30 days annual leave”. As to the leave payments, Mr Han appeared to be asserting a particular level of leave accrual, which Ms Groves was not disputing during the discussions. But it is not clear whether she was agreeing only to the payment of such leave as was accrued and to which Mr Han would become entitled on termination of employment or whether she was agreeing to pay out accrued sick leave even though accrued sick leave is not (absent an express provision in a contract or enterprise agreement) usually paid out on termination. It may be the case that Ms Groves was simply trying to wrap things up by securing Mr Han’s resignation and paid insufficient attention to Mr Han’s condition to be paid out any accrued sick leave. In the end nothing turns on this since, for the reasons shortly explained, no agreement was made.

Discussions resumed in the afternoon of 15 July 2022. At some point a disagreement appears to have developed about what had earlier been agreed and the following exchange occurred:
PN294MS GROVES: I am happy to honour our agreement this morning. I gave you my word. I said if you were wanting to give me that letter I will not send that to HR. One, by not sending that letter. Two, by giving you two weeks’ extra pay which I am not meant to. Three, offering to give you a good reference to help you get a job.
PN295MR HAN: If you really - - -
PN296MS GROVES: And for helping you to do this.
PN297MR HAN: If you - - -
PN298MS GROVES: And if that means nothing then you’re welcome to stay. But as I said if you stay – if there’s one more thing there’ll be another letter – if I have to terminate your contract you will never work again. So - - -

When Mr Han provided a letter of resignation in the afternoon of 15 July 2022, it contained the terms he thought or hoped were agreed, or at least the terms on which he would resign. It was sent in response to a request. Ms Groves said to Mr Han: “I will need to see the letter of resignation first and it needs to be signed by you first”.[94] Mr Han sent the letter. It was not signed, and Ms Groves rejected it because it did not reflect the terms to which she was prepared to agree. On receiving the letter Ms Groves variously said to Mr Han “[t]hen give me a resignation letter that I am happy to accept”;[95] “I don’t accept that. You were stipulating conditions on there in writing. I am not accepting that”;[96] and “[w]ell, then give me your proper resignation letter”.[97] Plainly Ms Groves knew that the resignation letter was not final. She knew that Mr Han was “stipulating conditions”, and she did not accept the conditions (although at least some of the conditions appear to have been earlier agreed in principle). Nonetheless, by the end of 15 July 2022, there was no agreement on the terms on which Mr Han would resign. Ms Groves knew this, which explains why, later that evening she completed the draft directions letter to Mr Han which she had earlier started on the advice of the Department. That she knew this is also evident from her comment to Mr Han shortly before he called his farther to which reference is made at [21] above. Ms Groves is recorded as saying:
PN383MS GROVES: Either give me a resignation letter that I will accept, otherwise don’t give me one at all. I am not going to stay here for another three hours Lidong arguing about this.

It was not open to Ms Groves, two days later (nor to her staff some three days later) to purport to accept the resignation. The deal being negotiated was yet to be consummated, and the purported acceptance of the resignation without the terms attached was inefficacious to effect a resignation by Mr Han. For these reasons the respondent’s contention that Mr Han resigned from his employment and therefore was not dismissed within the meaning of s 386(1) of the Act is rejected.

On 17 June 2022 and again on 18 June 2022, the respondent (through Ms Groves and her staff) purported to accept the resignation and treated the employment relationship as at an end. The acceptance of the resignation was ineffective to terminate the contract of employment because no resignation was given, and the conditions attached to the proposed resignation were not accepted. Thus, the contract of employment was not validly terminated by resignation (a unilateral act) nor by agreement (acceptance of the conditions attached to the resignation), nor by lawful termination by the respondent since no conduct warranting summary termination was alleged, nor repudiatory conduct capable of acceptance is alleged, and the contract did not provide for termination on notice before the expiration of its term. Although an employment contract not lawfully terminated continues, the employment relationship which it regulated does not necessarily do so. A simple example will suffice. Wrongful summary termination of an employee’s employment for serious misconduct when the employee has not engaged in the misconduct will not lawfully end the employment contract because notice of termination was not given. But the summary termination will be effective to end the employment relationship.

Here by reason of the respondent’s conduct taken together, Mr Han was dismissed. First, the respondent purported to accept a resignation not given and not capable of acceptance without also accepting the conditions which attached. Second, the purported acceptance of the resignation made clear that final pay would be made and that the two-week ex gratia payment would be included. Third, the purported acceptance of the resignation also made clear that Mr Han would be excluded from the workplace because arrangements were to be made for the return of Mr Han’s security key and fob. Fourth, by 25 July 2022, Ms Groves was on annual leave and a school staff member wrote to Mr Han requesting that he return his school keys, security fob and teacher’s desk key.[98] This simply confirmed that which Ms Groves communicated on 17 June 2022 – that the employment relationship was at an end and that Mr Han would be excluded from the workplace, hence the security devices in Mr Han’s possession were sought to be recovered.

Consequently, Mr Han was dismissed on 17 July 2022.

I do not accept that the employment relationship continued until 28 July 2022 when final payment was made, nor until 30 July 2022 when the pay period ended, nor for a further two weeks after 15 July 2022 by reason of the ex gratia payment, nor until 31 July 2022 being the effective date of termination set out in the attachment to the 9 September 2022 email from Ms Cantwell to Ms Groves. The ex gratia payment has no bearing on the date the employment ended. It was a payment made (for which there was no obligation) by the respondent to Mr Han. It did not constitute an agreement to continue the employment for a further two weeks. The date on which final pay is made may indicate the date employment ended, but it does not always do so. Here, the day on which payment was made coincided with the normal pay day. For the reasons given above, the employment relationship ended at an earlier point in time and did not coincide with the date final pay was made. For the same reasons, neither does the date recorded as the end of the pay period nor the date given as the effective date of termination in the 9 September 2022 email attachment, constitute the date the employment relationship ended. These amount to no more than “book entries” in a payroll system.

Consequently, as Mr Han’s dismissal took effect before he had completed a period of 6 months’ employment with the respondent he is not a person protected from unfair dismissal.

I should add for completeness, even if I accepted one of Mr Han’s case theories that the ex gratia payment meant continuing employment for the period, this would not assist because on that theory, notice of termination must have been given on 17 July 2022 (when Ms Groves purported to accept the resignation and indicated the payment would be made) and the relevant minimum employment period is “6 months ending at the earlier of the following times:
i.The time when the person is given notice of the dismissal; or
ii.Immediately before the dismissal. (s 382(a))…”
To similar effect, to the extent that Mr Han contended that he had been dismissed because he was forced to resign by reason of the warning, because the allegations underpinning the warning are said to be fabricated, that contention must proceed on the basis that he resigned with effect on 15 July 2022, or on 17 July 2022 when Ms Groves purported to accept his resignation. Even if I were to accept that case theory (which I do not), this would also not assist Mr Han’s case. The ending of his employment on either of those dates still means that he had not completed a period of employment at least equal to the minimum employment period at the time of his dismissal.

Finally, I should add that any suggestion that Mr Han’s nonattendance at work from 18 July 2022 is consistent with a theory that he resigned is rejected. As earlier noted, on 17 July 2022, Mr Han sent a text message to Ms Groves in which he contended that the disciplinary action had caused him a heavy blow, depression, anxiety, insomnia, and a severe headache and that he needed a week’s sick leave from 18 July 2022 to recover. That is not consistent with a resignation. To the extent that it was put to Mr Han that the absence of sick leave was not authorised,[99] being absent without authorisation (if it be needed), is also not consistent with a resignation. If there had been a resignation, the absence need not be authorised since there is no ongoing employment relationship. If, as the respondent suggested to Mr Han, that Mr Han was absent without authorisation on 18 July 2022 and following, that absence may have been grounds for dismissal, but it does not confirm a resignation. For the reasons earlier given Mr Han did not resign, he was, as set out above, dismissed from his employment by the respondent.

For the reasons stated, Mr Han has not completed a period of employment with the respondent of at least the minimum employment period. He is therefore not protected from unfair dismissal (s 382). Mr Han’s application for an unfair dismissal remedy must be dismissed.

Order

The application in U2022/8424 is dismissed.

DEPUTY PRESIDENT

Appearances:

L Han for himself

P Knowles of counsel, for the State of Victoria

Hearing details:

Friday 16 December 2022 and Monday 23 January 2023
Microsoft Teams

Final written submissions:

Mr Lidong Han: 23 February 2023

State of Victoria: 3 March 2023

[1] For this latter contention the Applicant relies on Attachment DG-17 to exhibit 1 (see Applicant’s outline of submissions 2 December 2022)

[2] Exhibit 1 at [12]-[15]; Attachment DG-1

[3] Exhibit 1 at [7]; Attachment DG-1

[4] Exhibit 1 at [14]; Applicant’s outline of submissions 2 December 2022

[5] Exhibit 1 at [18]

[6] Exhibit 3 at [5a]

[7] Exhibit 1 at [21]-[26]; Attachment DG-6

[8] Exhibit 1 at [29], [31]

[9] Exhibit 1 at [32]; Attachment DG-7

[10] Exhibit 1 at [33]; Attachment DG-8

[11] Exhibit 1 at [34]; Attachment DG-9

[12] Exhibit 1 at [36]-[37]

[13] Exhibit 1; Attachment DG-10

[14] Ibid

[15] Exhibit 1 at [38]; Attachment DG-10

[16] Surveillance Devices Act 1999 (Vic), s 6(1)

[17] Ibid, s 11(1)

[18] Ibid, s 11(2)

[19] Transcript (16 December 2022) at PN1733-1744

[20] Exhibit 1 at [39]; Transcript (16 December 2022) at PN92

[21] Exhibit 1 at [21], [40]

[22] Ibid at [41]

[23] Ibid at [42]

[24] Ibid at [44]

[25] Ibid

[26] Ibid at [46]

[27] Ibid at [47]

[28] Ibid at [48]; Noting that the text messages were not produced. Mr Han appears to suggest that he received such a text message on 15 July 2023 (see Transcript (16 December 2022) at PN739), and it seems clear that a text message was sent but not in the terms suggested by Mr Han (calling police) (see Transcript (16 December 2022) at PN739-PN784)

[29] Exhibit 1 at [49]; See also Exhibit 3, Attachment 10

[30] Exhibit 1 at [50]; See also Exhibit 3, Attachment 10

[31] Exhibit 1 at [51]

[32] Ibid

[33] Transcript (16 December 2022) at PN973-PN977

[34] Exhibit 1 at [52]

[35] Ibid at [53]

[36] Ibid at [54]

[37] Ibid

[38] Ibid at [55]

[39] Ibid at [56]

[40] Ibid at [56]; Attachment DG-11

[41] Exhibit 1 at [57]

[42] Ibid at [58]-[60]

[43] Ibid at [61]

[44] Ibid

[45] Ibid

[46] Exhibit 3

[47] Transcript (15 July 2022), (recording of conversations at attachment 5 to the application) PN298

[48] Exhibit 1 at [56]

[49] Transcript (15 July 2022), (recording of conversations at attachment 6 to the application) at PN300

[50] Ibid, at PN348

[51] Ibid, (recording of conversations at attachment 7 to the application) at PN358

[52] Ibid, at PN360

[53] Ibid, at PN368

[54] See Applicant’s outline of submissions 2 December 2022 and the attachments thereto

[55] Transcript (23 January 2023) at PN14-PN41

[56] Ibid at PN165, PN179, PN192-PN221

[57] Transcript (16 December 2022) at PN533; Exhibit 1, Attachment DG-11A

[58] Exhibit 1, Attachments DG-13 and DG-14; Exhibit 3, Attachments 7 and 8

[59] Exhibit 1 at [62]

[60] Ibid

[61] Exhibit 1, Attachment DG-11

[62] Exhibit 1, Attachment DG-12A

[63] Exhibit 1 at [62]

[64] See Marks v Commonwealth (1964) 111 CLR 549 at 571 Per Windeyer J

[65] See for example, Riordan v War Office [1959] 1 WLR 1046 at 1054

[66] Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 166

[67] See Automatic Fire Sprinklers Pty Ltd v Watson (1946) 72 CLR 435 at 451, 461, 466, 469, 476; Hill v CA Parsons & Co Ltd [1972] Ch 305 at 313 per Lord Denning MR.

[68] See Hill v CA Parsons & Co Ltd [1972] Ch 305 at 313; Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 164-165.

[69] Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 165

[70] Ibid

[71] Gunnedah Shire Council v Grout (1995) 134 ALR 156 at 166

[72] See Heyman v Darwins Ltd [1942] AC 356 at 361; Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR 361 at 382

[73] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427-428; Visscher v Giudice (2009) 239 CLR 361 at [53]-[55]; See also Forsyth, “Automatic v Elective Termination Theory Revisited” (1994) 7 AJLL 246.

[74] Heyman v Darwins Ltd [1942] AC 356 at 361; Gunton v Richmond-upon-Thames LBC [1981] Ch 448 at 467-468; Norwest Holst Group Administration Ltd v Harrison [1985] ICR 668 at 683.

[75] Thomas Marshall (Exports) Ltd v Guinle [1979] 1 Ch 227 at 240.

[76] Exhibit 1 at [63]; Attachment DG-12A

[77] Exhibit 1, Attachment DG-12A

[78] Exhibit 3, Attachment 9

[79] Exhibit 3, Attachment 10

[80] Exhibit 1, Attachment next to DG-11 to; Transcript (16 December 2022) at PN494-PN529

[81] Exhibit 1, Attachment DG-15

[82] Ibid

[83] Exhibit 1 at [68], Attachment DG-16

[84] Exhibit 1 at [69], Attachment DG-16

[85] Exhibit 1 at [70], Attachment DG-17

[86] Exhibit 1, Attachment DG-17

[87] The Merit Protection Board is a statutory body established under the Education and Training Reform Act 2006 (Vic) to, inter alia, hear and determine reviews and appeals against certain decisions

[88] Applicant’s email response to Form F4 dated 19 October 2022 (Exhibit 4b page 1)

[89] Ibid, (Exhibit 4b page 2)

[90] Ibid, (Exhibit 4b pages 2-3)

[91] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; Khayam v Navitas English Pty Ltd[2017] FWCFB 5162 at [75]

[92] Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645

[93] NSW Trains v James[2022] FWCFB 55 at [45]

[94] Transcript (15 July 2022), (recording of conversations at attachment6 to the application) at PN300

[95] Ibid, (recording of conversations at attachment 7 to the application) at PN358

[96] Ibid, at PN360

[97] Ibid, at PN368

[98] Exhibit 1 at [65]

[99] Transcript (23 January 2023) at PN144-PN150

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