[2020] FWC 6842

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 – Unfair dismissal

Ming Gao
v
Department of Home Affairs)

(U2019/10470)

COMMISSIONER JOHNS

SYDNEY, 16 DECEMBER 2020

Application for relief from unfair dismissal – jurisdictional objection– jurisdiction objection upheld – application dismissed.

[1] Mr Ming Gao (Applicant) lodged an application under s.394 of the Fair Work Act 2009 (FW Act) which was received by the Fair Work Commission (Commission) on 18 September 2019 alleging that he had been unfairly dismissed by the Commonwealth of Australia (as represented by the Department of Home Affairs) (Department/Respondent) on 30 August 2019.

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

[3] It is not disputed that on 16 August 2019 Mr Gao received a show-cause letter giving him two weeks to respond (i.e. by 30 August 2019). In his application the Applicant contended that the show-cause letter was, in effect, 2 weeks’ notice of termination 1. On 26 August 2019 the Applicant resigned. He ceased employment on 30 August 2019. However, in his application Mr Gao further contended that he was left with no real choice but to resign in circumstances where the Department had notified him of an intention to terminate his employment.

[4] Mr Gao complains about the performance management that led to the show-cause letter. In his application he highlighted five major unfair aspects with the intention to terminate his employment. He contends that, as a result of the Department’s course of conduct (culminating in the show-cause letter), he was forced to resign and that he was therefore dismissed in accordance with s.386(1)(b) of the FW Act.

[5] The matter was heard in Canberra before his Honour Deputy President Kovacic on 7 February 2020. The hearing dealt with the Respondent’s jurisdictional objection. At the hearing Ms I Sekler appeared for the Respondent and Mr Gao represented himself. Mr Gao gave evidence on his own behalf and evidence for the Applicant was also given by Ms Lisa Haritz a current employee of the Department.

[6] Evidence for the Respondent was given by:

a) Ms Abigail Whiting, Assistant Secretary, People Services Branch, People and Culture Division, Corporate and Enabling Group (Ms Whiting was in this role from 28 September 2018);

b) Ms Belinda Rae Conn, Director, Health and Digital Correspondence Section, ICT Division, Technology and Major Capability Group and Mr Gao’s supervisor from 20 March 2019 until the Applicant’s employment ceased; and

[7] Following the hearing the Deputy President issued clarifying directions on 7 April 2020 in respect of Ms Whiting’s evidence.

[8] On 1 May 2020, on receipt of the material from the parties the Deputy President advised the parties that a further hearing was not required.

[9] On 7 August 2020 the matter was reallocated to me after the untimely death of the Deputy President. In coming to this decision, I have had regard to all of the material that was before the Deputy President. Because of the volume of material and the need to reconsider it in its entirety this decision is regrettably being delivered outside the Commission’s benchmarks.

Facts

[10] This matter has a long history. As I have indicated above there are voluminous materials. Therefore, below I have summarised the essential background in this matter. Having considered all of the evidence I am satisfied that there is an evidentiary basis for each of the following findings of fact.

[11] The Applicant commenced employment with the Department on 6 February 2006. He commenced with the Department as an IT Graduate (APS4). At the time his employment ceased Mr Gao was an Executive Level 1 employee. He was a “Java Developer” or software developer. He was responsible for the technical support of an information technology system called the Health Assessment Portal (HAP).

[12] The Department manages performance under its Managing Underperformance Policy 1 July 2015 (UP Policy) and Part 6 of the Department of Home Affairs Workplace Determination 2019 (WD).

[13] Broadly speaking the UP Policy and WD provides that underperformance is addressed in three stages:

a) Step 1 – initial discussions with employee for a period of four weeks;

b) Step 2 – an Assessment Period for eight weeks where an assessor outside of the work area monitors the employees’ performance. Step 2 occurs where Step 1 has not resulted in an employee’s performance returning to the expected performance standard;

c) Step 3 – if an employee’s performance remains unsatisfactory at the end of the Assessment Period the Secretary (or their delegate) will make a decision as to the action to be taken and advise the employee in writing.

[14] The Applicant was advised of issues relating to his performance from 1 May 2017.

[15] On 30 August 2017 the Department commenced Step 1 of a Performance Improvement Process (PIP). The PIP was overseen by Mr John Ramsay, the Applicant’s Director at the time. While Step 1 is only intended to run for a period of four weeks, this process was delayed in the Applicant’s case and ran for a considerable period longer than the above prescribed time. This was due to a number of factors including the Applicant taking leave, delays in the Applicant finalising his Performance Development Agreement (PDA) and changes in the Applicant’s supervisor.

[16] On 26 June 2018, Ms Conn (the Applicant’s then Director) wrote to Mr Ian Arthur (Acting Director of Case Management Services). Ms Conn recommended that Step 2 of the PIP be initiated for the Applicant.

[17] On 11 July 2018, Mr Ian Arthur wrote to the Applicant to advise of his preliminary decision to initiate the Step 2 Assessment Period.

[18] On 29 June 2018, the Department received a report from Dr Scott Chambers that “a continuation with the performance improvement process is likely to exacerbate… [the Applicant’s] anxiety”.The Department on 12 February 2019 then sent the Applicant for an independent assessment with Dr Luke Murphy, a forensic psychiatrist, to assess his fitness to participate in the performance management process. Dr Murphy found the Applicant fit to perform all duties inherent to his role, including performance management and attending work regularly. Dr Murphy also indicated that the Applicant should be given substantial advance warning of the Step 2 Assessment Period to enable the Applicant to organise additional support.

[19] Following this, the Applicant ceased reporting to Ms Loh and started reporting to Ms Conn.

[20] After consultation with the Applicant, the Department commenced the Step 2 Assessment Period on 28 May 2019. Step 2 concluded on 26 July 2019.

[21] An Independent Assessor was appointed for this process, Mr Austin, who assessed that the Applicant had failed to attain the appropriate standards for some tasks assigned to each goal and that the Applicant “had not demonstrated consistent performance against the goals within your PIP at the EL 1 classification level, against the following capabilities.” Accordingly, Mr Austin concluded that the Applicant had not attained or sustained the required standard of work performance at the EL 1 classification level.

[22] The Applicant filed an Application for an Order to Stop Bullying on 30 July 2019 and the matter was subsequently listed for conference at the Fair Work Commission on 22 August 2019.

[23] On 16 August 2019 the Applicant received a letter (Show-cause Letter) from Ms Rebecca Taylor (Director of Case Management Services), who was delegated by the Secretary to make a decision and advise what, if any, action to be taken. The letter advised the Applicant of the preliminary decision to terminate the Applicant’s employment. This letter provided the Applicant until 30 August 2019 to provide any reasons as to why his employment should not be terminated.

[24] On 19 August 2019 at 8.57am, the Applicant sent an email to the Department. Attached to the Applicant’s email was a medical certificate and correspondence from two psychologists. He wrote he would delay his response. The Department treated the email as a request for an extension of time.

[25] On 21 August 2019 the Department declined an extension of time

[26] On 22 August 2019:

a) the Commission conducted a conference in relation the Applicant’s application for a Stop Bullying Order.

b) the Applicant requested a voluntary redundancy.

[27] On 23 August 2019 the Department advised the Applicant that his request for a voluntary redundancy had been declined.

[28] On 26 August 2019, the Applicant resigned. He nominated 30 August 2019 as the “separation date.”

[29] Later that afternoon the Department accepted the resignation.

[30] The employment ended on 30 August 2019.

[31] On 18 September 2019 the Applicant commenced the present unfair dismissal application.

Protection from Unfair Dismissal

[32] An order for reinstatement or compensation may only be issued where the Commission is satisfied the Applicant was protected from unfair dismissal at the time of the dismissal.

[33] Section 382 sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

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

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

(b) one or more of the following apply:

(i) a modern award covers the person;

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

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

[34] There is no dispute, and I am satisfied, the Applicant was protected from unfair dismissal.

[35] I will now consider if the cessation of employment was unfair within the meaning of the FW Act.

Was the dismissal unfair?

[36] A dismissal is unfair if the Commission is satisfied, on the evidence before it, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

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

(a) the person has been dismissed; and

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

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

[37] In the present matter ss.385(c) and (d) are not relevant.

[38] However, before I can determine if the dismissal was harsh, unjust or unreasonable I must first be satisfied that Mr Gao was dismissed by the Department.

Meaning of dismissed

[39] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides that:

“386 Meaning of dismissed

(1) A person has been dismissed if:

(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”

[40] It is common ground that s.386(1)(a) does not apply in the present matter.

[41] The Applicant contends that he was forced to resign from employment with the Department because of conduct, or a course of conduct, engaged in by Departmental officers.

Bupa’s case and other authorities

[42] As previously mentioned, Mr Gao maintained that he had been dismissed as described in s.386(1)(b) of the FW Act.

[43] In Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli 2, a Full Bench of the Commission referred to a number of authorities dealing with “dismissal” under s . In relation to the operation of s.386(1)(b) the Full Bench held that,

“[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd , that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq); Ryan v ISS Integrated Facility Services Pty Ltd; Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust.

….

[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:

….

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”

….

[49] We do not consider it is particularly helpful in applying s.386(1) to refer to the concept of “constructive dismissal” - an expression nowhere used in the FW Act. In saying this, we acknowledge that the expression has been used in a number of the authorities and also in the passage from the explanatory memorandum earlier quoted. However, as explained by Greg McCarry in his 1994 article “Constructive Dismissal of Employment in Australia”, the concept of “constructive dismissal” in UK law was not a development of the common law, but rather a description of a statutory extension to the ordinary meaning of dismissal to encompass a situation where “the employee terminates the contract, with or without notice, in circumstances such that he is entitled to terminate it without notice by reason of the employer’s conduct”. That is a much wider concept than just “forced” dismissal and is conducive of confusion, as McCarry warned:

“If the forced resignation is now to be regarded as a dismissal, at least under some statutes, then so be it. But it is not and should not be called a “constructive dismissal”, nor should that term come to be regarded as a separate concept in its own right, as may be happening. To regard “dismissal” as including constructive dismissal without the aid of a definition of extension is reading a lot into a statute by English and Australian standards of statutory interpretation, although as we shall see American courts have had no trouble doing just that. Moreover, unnecessary or loose use of the phrase “constructive dismissal” brings with it the inevitable, and erroneous, tendency to draw on English judicial pronouncements and examples which arise in the quite different situation adverted to earlier. Given the way the extended definition in England is to be interpreted, all kinds of breaches of contract and repudiatory conduct, as determined by the common law rules, can legitimately come within the statutory extension. There are good reasons for arguing that similar definitions should be inserted into our statutes, but at the moment they are not there. So care is needed that decisions on the English regime are not misunderstood or misapplied.”

[50] In the different statutory context of the NSW unfair dismissal scheme in the Industrial Relations Act 1991, a Full Bench of the Industrial Relations Commission similarly warned in Allison v Bega Valley Council, in relation to forced dismissal, that the term “constructive dismissal” could “deflect attention from the real inquiry ... Did the employer behave in such a way so as to render the employer’s conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?” In the current statutory context of s.386(1), the breadth of the concept of “constructive dismissal” may cause confusion and deflect attention away from whether a dismissal within the meaning of paragraph (a) or paragraph (b) is being considered. That occurred in this case.”

[44] I adopt the reasoning of the Full Bench. Consequently, it is necessary for me to focus on whether the Applicant was “forced to [resign] because of conduct, or a course of conduct, engaged in by [the Department]” rather than exploring notions of “constructive dismissal”.

[45] The onus is on the Applicant to establish that he was forced to resign: Banda v Mrs Australia Pty Ltd (t/a 7-Eleven). 3

The Applicant’s case

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

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

a) He had refused three offers for voluntary redundancy from the Department before he received the letter of 16 August 2019.

b) On receipt of the Show-cause Letter, the only real option open to him was termination of his employment.

c) Despite the delegate offering the Applicant an opportunity to provide reasons as to why he should not be dismissed, the Applicant believed that as he had already provided a response and that his response was the same – this would not result in the delegate changing her decision. This was in circumstances where:

i. The Applicant was in complete disagreement about his under-performance.

ii. All his previous responses with evidence had been dismissed.

iii. Unwarranted accusations had been made during stage 2 of the report which were not comprehensive and thorough.

iv. The Applicant had already provided these responses to the delegate and they “had been completely dismissed”.

d) He denied posing a “risk to the well-being of others in the workplace”. This assessment was based on a number of allegations that the Applicant stated did not occur or were taken out of context. Further, the Applicant did not consider this an issue related to performance.

e) The intention to terminate letter was based on a false statement made by Ms Conn that the Applicant had raised issues with, but they had not been passed on by the relevant Community and Public Sector Union (CPSU) delegate.

f) Procedural fairness had not been afforded to the Applicant during the performance process contrary to departmental policy.

i. Stage 2 only occurred over a period of 3 weeks instead of the required 8 weeks. As the Applicant had become unwell at the end of three weeks, the Applicant considered that exceptional circumstances should have been exercised to extend the eight-week period.

ii. In total, the Applicant had less than seven weeks for stages 1 and 2 and during stage 1 the Applicant was on reduced working hours due to medical reasons.

iii. This was explained by the Applicant in his response to the stage 2 report, however the Applicant stated his response was ignored by the delegate.

g) The process had been conducted without consideration to the Applicant’s health and wellbeing. This only hardened the Applicant’s conclusion that the Department was determined to dismiss him.

h) He was intending on not resigning but being terminated and lodging an unfair dismissal application, however his union representatives had convinced him to avoid dismissal as it might affect his future employment options.

The Respondent’s case

[48] The Respondent in its written submissions canvassed the legislative framework, contending that:

a) in relation to s.386(1)(b) of the FW Act the onus is on the employee to prove that they did not resign voluntarily and that the employer forced their resignation; and

b) the test to be applied is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether termination of employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.

[49] The Respondent relied on several authorities in support of it submissions, including Mohazab v Dick Smith Electronics Pty Ltd (No 2) 4, Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin Tavassoli (Bupa)5, Rheinberger v Huxley Marketing Pty Ltd6 and P. O’Meara v Stanley Works Pty Ltd7.

[50] The Respondent further submitted that its conduct in this case was far removed from circumstances where forced resignation had been found to have occurred, adding that the circumstances had a substantial similarity to cases where an employee resigns before the employer had come to a decision regarding a disciplinary investigation 8 or resigns because they have been subjected to performance management.9 The Respondent also contended that when viewed objectively at the time Mr Gao resigned its previous conduct in issuing the show-cause letter and deciding not to offer a voluntary redundancy to Mr Gao was not such that he had no effective or real choice but to resign, adding that Mr Gao could have:

a) responded to the show-cause letter;

b) if he considered that he was not fit to participate in the show-cause process, he could have provided medical evidence to that effect; or

c) sought an order form the Commission that the show-cause process not proceed until his application for an order to stop bullying had been determined.

[51] The Respondent stated that despite the abovementioned possible actions, Mr Gao chose to resign voluntarily and that his application should therefore be dismissed.

[52] In its reply submissions, drawing on Mr Gao’s witness statement and the statement of Ms Hauritz, the Respondent submitted that Mr Gao made a considered choice after receiving advice from the CPSU to resign rather than to seek to convince the decision maker that his employment should not be terminated. The Respondent posited that Mr Gao made this choice to reflect his own interests and that he had an opportunity to seek to convince the Respondent to retain him. The Respondent cited several additional authorities which it contended indicated that these circumstances did not amount to a forced resignation. Those authorities were Pacific National (NSW) Ltd v Bell (Bell) 10, Hardwick v National Australia Bank Ltd11, Phillip Knight v Wattyl, Australia Pty Limited12 and Mr David Hamann v Thiess Pty Ltd13.

Evidence of the Applicant

[53] Before the Deputy President, the Applicant gave evidence and was cross-examined. His evidence was consistent with the Witness Statements and submissions he had previously filed. In essence, he considered that the allegations made by the Department in the Show-cause Letter left him with no choice to resign. Under cross-examination the Applicant made the following concessions:

a) Concerns had been raised by the Applicant’s supervisors regarding his performance as early as 2017.

b) Step 1 of the Applicant’s PIP commenced on 30 August 2017.

c) The Step 1 PIP would ordinarily run over four weeks. However, in the Applicant’s case it did not conclude until 29 May 2019.

d) Step 1 was delayed by the Applicant taking several periods of leave during this time.

e) At the end of the Step 1 process a decision by the Department was made to start the Step 2 process.

f) There was a delay in starting Step 2 of the process due to questions surrounding his fitness for duty. As such the process did not commence until 28 May 2019.

g) Step 2 went for 8 weeks and Mr Austin was the independent assessor.

h) The Applicant received a copy of the Step 2 report on 7 August 2019.

i) He responded to this report on 14 August 2019.

j) On 16 August the Applicant received the show-cause letter.

k) The letter was signed and written by Ms Rebecca Taylor but sent by Ms Gwen Smith (as Ms Taylor had resigned two days prior). This letter advised of a preliminary decision.

l) He felt that even though Ms Taylor gave him an opportunity to respond in the show-cause letter she had a predetermined outcome in mind.

m) He had two weeks to respond to the letter from 16 August to 30 August 2019, even though the Managing Underperformance policy generally required one-week response.

n) He was unwell for the period of 16 August to 30 August 2019, however attended work on the 14 through to the 16 of August 2019.

o) He attended work because he had used up his sick leave. He felt that if he did not attend work from 10 to 3pm for those days other Ms Conn would raise a misconduct again him.

p) On 19 August 2019 he requested an extension of time.

q) As at 19 August 2019 Dr Flynn’s medical report was the most recent medical evidence the Department had received. This report said:

a. “His illness is having widespread detrimental ramifications at home and potentially impacting his ability to cope at work.”

r) The report did not say the Applicant was not coping at work because this was the first time the Applicant had seen the psychiatrist. He agreed that Dr Flynn’s report of 19 August 2019 was the most recent medical material he had provided to the Department.

s) He agreed he had never received any formal correspondence from the Department offering him a voluntary redundancy.

t) He thought Ms Taylor was only on leave and did not realise that Ms Whiting was the final decision maker. He did not pay attention to the part in the email (from Ms Whiting) which said:

If you do not provide a response by close of business on 30 August 2019 I'm intending to make my final decision, based on the information before me. This includes your responses to the process to date and, most recently, to the independent assessor's report.

u) He agreed that the delegate was no longer Ms Taylor and was Ms Whiting.

v) It was his belief that he could not convince Ms Whiting, as the delegate to move away from Ms Taylor’s intended course of action

w) He was aware Mr Austin’s report raised some serious allegations against him.

x) The meeting of 20 August 2019 was the first time he heard about aggression and he was so shocked the pencil fell out of his hand.

y) He disagreed with Ms Conn’s account about what happened during the meeting.

z) He knew there had been lengthy performance concerns about him since 2017. However, in his mind these concerns were unlawful.

aa) After he received the Show-cause Letter he knew that termination was a possible option at stage 2.

bb) He agreed that he was given an opportunity to respond to show-cause letter and he did not take advantage of the opportunity.

cc) He did not ask for an extension of time to get more evidence because he was not well enough.

dd) Even though he participated in a conference at the FWC regarding his stop bullying application he was not well enough to attend but he had to as this would be the only thing to stop his termination from happening. He regarded that the stop bullying process was his last hope.

ee) He did not ask for assistance from the Deputy President (in his stop bullying matter) to stop the show-cause process because he did not realise that was an option. This was even though he thought this was last chance to stop the process.

ff) His recollection of the meeting with the FWC was that he was offered a voluntary redundancy by the Department. However, as he was quite unwell his recollection might be incorrect.

gg) He thought that this had been offered to ‘run down’ his time before the formal hearing for the stop bullying application as he had thought that a formal hearing would be scheduled before the 30 August and that as a result of the Department refusing to offer him a VR he would have to request another conference with the FWC for a formal hearing to be scheduled.

hh) He admitted that the above situation was speculation on his part.

ii) It took one day for the Department to respond to his request.

jj) He was the only source of income for his family and had been told to move on for the sake of his family by his family members.

kk) He made the decision to resign with his wife. 14

ll) If he was terminated he thought he would have a good unfair dismissal case. However, he could not trust his decision-making power which is why he sought advice from his family.

mm) He did not talk to his doctor of psychiatrist about his mental condition.

nn) He did not provide anything around this time that suggests that he could not continue on the process.

oo) While Ms Hauritz had advised him that “[i]f you let them terminate you and go to FW you will have no chance” – he took this advice on merit, if someone advised him of something he would not just accept it.

pp) At this point he was talking about exploring the possibility of unfair dismissal and getting legal advice. However, he could not do it because of his mental health.

qq) At the point at which he choice to resign he could have continued with the show-cause process. His belief was that if he continued with the show-cause process and provided reasons the next second after sending reason he would receive a termination letter. However, this was speculation and he could not say that this would be the outcome for certain.

rr) The advice from the CPSU was that he should resign and that he would not have a chance if he went to the Commission.

ss) The CPSU had told him he stood no chance in the show-cause process and had been told it does not matter what he said they would terminate him. However he had not provided a record of that.

tt) Then he had to make a chose between resigning or being terminated and being able to say that in the future to prospective employers. The thinking behind that was that if you go to a prospective employer it is always better to say you resigned rather than you were terminated.

uu) There was nothing in his witness statement that he was not well enough to participate in the process, it only said that he was unwell.

Consideration

[54] Although the Applicant relies upon a course of conduct, it is important, in particular, to reflect upon the immediate events leading up to the resignation.

[55] On 16 August 2019 the Applicant received the Show-cause Letter. It is useful to set out the full terms of the Show-cause Letter (attachments omitted):

“Notice of Intention to Terminate Your Employment - section 29(3)(c) Public Service Act 1999 (Cth) - underperformance of duties - Step 3 Proposed Outcome

1. I refer to the Step 2 Assessment Period of the Performance Improvement Process initiated on 17 May 2019, by me, acting in accordance with clause 6.10 of the Department of Home Affairs Workplace Determination 2019 (DoHA WD) and the Department's Managing Underperformance Policy.

2. On 6 August 2019, Mr Jonathan Austin, Independent Assessor, completed the Assessment Report of your performance. Among other things, Mr Austin concluded that you did not attain and sustain the work level performance at the EL1 classification level, as outlined in the Department of Home Affairs Capability Development Framework.

3. I am delegated by the Secretary to make a decision and advise what, if any, action will be taken following Mr Austin determining that you have not attained and sustained a satisfactory level of work performance at the EL1 classification during the Step 2 Assessment Period.

4. The purpose of this letter is to advise you that my preliminary decision is the appropriate action for me to take is to terminate your employment under section 29(3)(c) of the Public Service Act 1999 for unsatisfactory performance of duty, and to provide you with an opportunity to comment before I make my final decision.

Background

5. I have briefly set out what I understand to be the relevant background in this matter. Further details are included in the attachments to this letter.

6. You were first advised of issues relating to your performance on 1 May 2017.

7. Step 1 of the Performance Improvement Process ('Initial Discussions') in the DoHA WD and the Department's Managing Underperformance Policy provides for discussions between you and your manager in an attempt to address performance issues. It requires those discussions to be documented and to occur over a 4 week period.

8. These discussions, as required by Step 1, initially commenced on 30 August 2017 when Mr John Ramsay, who was your Director at the time, sent you an email to discuss commencement of Step 1 of the Managing Underperformance Process.

9. You completed the first 3 weeks of Step 1 before commencing personal leave for the period of 4 October 2017 and 5 January 2018.

10. On 8 January 2018, you commenced a combined period of annual and personal leave prior to returning to work on 5 February 2018.

11. On 12 February 2018, you were advised by your Director at that time, Mr Ramsay, that Step 1 would recommence on 19 February 2018.

12. You sought to take annual leave on 19 and 20 February 2018. However, as you were due to commence the above process your leave was not approved. Subsequently, you indicated to another staff member that you would take personal leave on those days and you subsequently took personal leave and were absent from the workplace.

13. As you did not have a Performance Development Agreement (PDA) in place, Step 1 was not able to proceed as soon as planned. You were subsequently directed on a number of occasions to finalise your PDA but did not do so until 21 March 2018.

14. On 19 April 2018, you were informed by Ms Belinda Conn, Director of the Health and Digital Correspondence section that Step 1 would recommence.

15. Subsequently, Step 1 recommenced on 27 April 2018 and concluded on 29 May 2018.

16. Ms Kathleen Loh, who was your supervisor at the time, undertook the process and reported no discernible improvement in your performance.

17. On 26 June 2018, as a result, Ms Conn wrote to the Acting Director of Case Management Services, Mr Ian Arthur, and recommended that the Step 2 Assessment Period be initiated.

18. On 29 June 2018, a report from Dr Scott Chambers stated "a continuation with the performance improvement process is likely to exacerbate your anxiety" .

19. On 11 July 2018, Mr Arthur wrote to you advising of his preliminary decision to initiate the Step 2 Assessment Period and before making a final decision offered you an opportunity to respond.

20. After requesting an extension, on 27 July 2018, you responded indicating Mr Arthur should not initiate the Step 2 Assessment Period.

21. On 17 September 2018, the Department sought further advice on your fitness to participate in a performance management process. On 17 September 2018, a supplementary report was prepared by Dr Chambers. However, in the Department's view, Dr Chamber's report did not provide clear guidance about your fitness for duty to engage in a performance management. In the absence of clear evidence, Mr Arthur did not finalise his decision.

22. On 15 February 2019, to obtain clarity around your medical situation, the Department sent you for an independent assessment with Dr Luke Murphy around your fitness to participate in the performance management process. Dr Murphy found you were fit to perform all duties inherent to your role, including performance management and attending work regularly. He indicated that you should be given substantial warning of the Step 2 Assessment Period to enable you to organise additional support.

23. Subsequently, you ceased reporting to Ms Loh and started reporting to Ms Conn.

24. On 11 April 2019, I wrote to you indicating I intended to initiate the Step 2 Assessment Period and offered you an opportunity to respond as to why I should not initiate this part of the process.

25. On 2 May 2019, you sent me an email setting out why you considered the Step 2 Assessment Period should not be initiated.

26. On 17 May 2019, after considering your response and as set out above, I initiated the Step 2 Assessment Period and I issued you with a formal warning letter regarding the commencement of the Step 2 Assessment Period managing underperformance process.

27. In my letter, I advised I intended to appoint Mr Austin, as the Independent Assessor. I advised Mr Austin's role as Independent Assessor was to:

• establish a Performance Improvement Plan (PIP) in consultation with you and your managers;

• have oversight of your work performance during the Step 2 Assessment Period;

• attend regular, weekly performance review and feedback meetings with you and your manager ;

• view samples of your work; and

• provide to a delegate of the Secretary a written report at the end of the Step 2 Assessment Period, indicating whether you have attained and sustained an acceptable standard of work performance at the EL1 classification level.

28. In my letter I also provided you the opportunity to comment on the appointment of Mr Austin. You raised no objection to Mr Austin being the Independent Assessor .

29. I advised the eight week Step 2 Assessment Period would commence on 28 May 2019, and conclude on 23 July 2019. There was a delay in completing the Performance Improvement Plan with the eight week assessment period commencing on 3 June 2019. The Assessment Period was consequently extended to conclude on 26 July 2019.

30. On 26 July 2019, the Step 2 Assessment Period concluded. Consistent with clause 6.11 of the DoHA WO, Mr Austin prepared a comprehensive report articulating his assessment of your work performance during the Step 2 Assessment Period. This assessment report was submitted to me on 6 August 2019, to inform my decision, as Delegate pursuant to clause 6.14 of the DoHA WD.

31. In his report, Mr Austin concluded against the three goals set out in your PIP that you did not attain and sustain the required standard against the three goals. While you attained the appropriate standards for some tasks assigned to each goal, you did not attain the appropriate standard for each goal overall. Mr Austin was of the view you failed to:

• Provide support and perform functions relating to the maintenance and enhancement (BAU of Health systems) - with the four spec ific tasks assigned to you, you did not attain the required standard with two of those tasks;

• Provide high level service delivery for Health Business clients - with the four specific tasks assigned to you, you did not attain the required standard with two of those tasks; and

• Support others in Health and Digital Correspondence Section (HDCS) to undertake their roles effectively - with the four specific tasks assigned to you, you did not attain the required standard for any of those tasks.

32. Mr Austin's overall finding was you had not demonstrated consistent performance against the goals within your PIP at the EL1 classification level, against the following capabilities:

• contribute to strategic thinking;

• achieve results;

• communicate with influence;

• display personal drive and integrity;

• demonstrate professional or technical proficiency; and

• support productive working relationships.

33. Accordingly, Mr Austin concluded you had not attained or sustained the required standard of work performance at the EL1 classification level.

34. On 7 August 2019, I wrote to you and provided you a copy of Mr Austin's report. I invited you to consider the report and provide comments for consideration by 5.00pm, Wednesday 14 August 2019, before a decision was made on what action would be taken.

35. On 14 August 2019, your response was received.

Issues for consideration

36. It is an inherent requirement of employment that employees perform the duties for which they are engaged to a satisfactory standard. The managing underperformance process is a collaborative process designed to address the management of employees who are not meeting their performance expectations and accountabilities outlined in their Performance Development Agreement (PDA) including giving employees an opportunity to improve their performance.

37. Your performance remains unsatisfactory at the end of the Step 2 Assessment Period, and it is my delegated responsibility to decide which of the following actions should be taken:

• continue your employment in your current job at your current APS classification level;

• move you to a new job elsewhere in the Department at the same level;

• reduce your classification; or

• terminate your employment.

Documents considered

38. In considering what action to take, I have considered the following documents, including your responses:

• Referral - Step 2 Assessment Period Underperformance referral, dated 26 June 2018, provided by Ms Belinda Conn, Director Health & Digital Correspondence (Attachment A);

• Request for comments regarding proposed decision to initiate a Step 2 Assessment Period, dated 11 April 2019, provided to you by me (Attachment B);

• Your response on the proposed decision to initiate a Step 2 Assessment Period, dated 2 May 2019 (Attachment C);

• Formal Warning - Step 2 Assessment Period, dated 17 May 2019, provided to you by me

(Attachment D);

• Step 2 Assessment report, dated 6 August 2019, provided to me by Mr Jonathan Austin, Step 2 Independent Assessor (Attachment E);

• Step 3 - Request for comments regarding the Independent Assessor's report, dated 7 August 2019, provided to you by me (Attachment F);

• Your comments regarding the Independent Assessor's report, not dated, received 14 August 2019 (Attachment G);

• Additional attachments provided by you in your response to the Independent Assessor's report, received 14 August 2019 (Attachment H, H1, H2 & H3);

• DIBP Managing Underperformance Policy, 1 July 2015 (Attachment I);

• Part 6 - Performance Management of the DoHA WO 2019 (Attachment J).

Preliminary decision

39. Clause 6.14 of the DoHA WO provides:

If at the end of the Assessment Period the Employee has not attained and sustained the expected standard of work performance, the Secretary will determine what, if any, action should appropriately be taken . The appropriate action may include terminating the Employee's employment.

40. I have read your response to the Independent Assessor's report and carefully considered your comments. You have raised a number of matters in response to Mr Austin's conclusion you did not attain and sustain a satisfactory work standard during the assessment period. I have grouped your statements under a number of headings below:

Ignoring and devaluing your achievements

41. I note your allegation your achievements were ignored or devalued. I have seen no evidence to support this allegation. The evidence suggests you were provided constructive and comprehensive feedback about your work performance and your supervisor and the Independent Assessor were both encouraging in their communication.

42. Further, as noted above, with respect to some of the tasks that were assigned to you the independent assessor acknowledged that these were performed to the required standard. Specifically, the assessor considered that 4 out of the 12 tasks allocated to you were performed to the required standard. This is evidence that where you met the required standards, your achievements in doing so were acknowledge by the independent assessor.

Subjecting you to negative and unwarranted criticism

43. I note your allegation you were either ridiculed, overruled, dismissed or ignored. I have seen no evidence to support this allegation. The evidence suggests you were provided balance, fair and reasonable feedback.

44. I note that during your PDA meeting on 20 June 2019, your supervisor attempted on several occasions to provide you positive feedback and you stated she was not telling the truth and was lying. I am advised both you and your CPSU representative, Dave Mitchell, were provided a copy of your manager's file note in relation to this PDA meeting. I am further advised neither Dave Mitchell nor yourself disputed the content of the meeting summary note. In relation to the document you provided titled, "My recollection of the PDA meeting", I am advised your supervisor, Belinda Conn was not provided a copy of said document to review or provide comment on.

45. I note your allegation you were belittled, degraded, demeaned, ridiculed, patronised and subjected to disparaging and negative remarks in a very disrespectful manner. There is no evidence you were subjected to any such inappropriate behaviours. During the performance review meetings and your PDA review your CPSU representative was in attendance and at no stage did he raise concerns about the behaviour directed toward you. The meeting notes for each meeting also provide no evidence you were subjected to any such behaviours. The content of Mr Austin's report including meeting notes indicate all discussions were conducted in a professional, respectful and courteous manner toward you.

False and unsubstantiated allegations

46. I note your statement that false and unsubstantiated allegations were made against you without any evidence. In your response, you state that during your PDA meeting Belinda accused you of threatening to stub (sic) her with your pencil. You also state she alleged you threatened to stub (sic) other people in the office. Ms Conn's file note reflects she felt threatened by your behaviour and told you how she felt. There is no evidence she made an allegation you threatened to stab other people.

47. Subsequent to your PDA meeting a number of staff reported concerns about your behaviour to Ms Conn. Staff reported to Ms Conn you were pacing aggressively along the corridor and loudly making disparaging comments. Staff reported feeling uncomfortable about your behaviour. This was raised with you in the weekly meeting the following day, 21 June 2019. As noted, Ms Conn raised that staff were concerned about your demeanour, anger and the yelling they heard from the meeting.

Health concerns

48. I note you have raised the underperformance process, including Step 2 have impacted your health and you have provided letters from a psychologist and psychiatrist. In particular:

• on 23 July 2018 you provided a letter from Dr Manuela H Habicht, a Forensic and Clinical Psychologist, recommending pharmacological intervention, and diagnosing you with an Adjustment Disorder with depressed and anxious mood and stating your condition had recently worsened. The letter recommended you transfer to another area;

• on 13 August 2019, you presented a medical certificate from Dr Caroline Flynn diagnosing you as prospectively unfit for work from 19 August to 1 September 2019. In particular, she indicated that your medical condition required further treatment and stabilisation; and

• on 13 August 2019, Dr Flynn provided a medical report outlining her medical intervention. Dr Flynn also recommended you transfer to another area and suggests recommendations were made for this to occur by Dr Habicht in July 2018 and Dr Chambers in June 2018 and your rehabilitation case manager in June 2018.

49. As set out above, prior to the commencement of the Step 2 Assessment Period your psychological health was independently assessed by Dr Luke Murphy. Dr Murphy advised there were no medication side-effects or psychiatric symptoms that prevent you from performing all duties inherent to you role including performance management and attending regularly.

50. In his report, Dr Murphy advised you would benefit by being provided substantial advance warning of the performance management process. I am advised you have been actively encouraged to engage with your treatment providers along with support services available to staff to assist and support you through the Step 2 Assessment Period.

51. Further, despite this evidence and your medical certificate of 13 August 2019, you attended for work on 14 - 16 August 2019. I am informed by your supervisor you only attended for part of the day, being 5 hours and 30 minutes on 14 August 2019 and 5 hours and 45 minutes on 15 August 2019.

52. Also, on both days you left early without advising anyone you were leaving the office. In addition, you did not submit leave for the hours you did not work. Further, you recorded your time as having worked in the Health Assessment Portal (costing your time to that system). However, the person responsible for allocating you work indicated that you were not allocated any work in this system and did not have any tickets open.

53. I acknowledge performance management processes can be stressful, however I am satisfied you have been provided support (and access to support) and reasonable guidance about the performance management process, including outcomes.

54. Further, with respect to the recommendation for you to transfer to another work area, I am not satisfied that this is a viable option.

55. Firstly, the Performance Improvement Process has concluded and already found your performance to be unsatisfactory.

56. Secondly, prior to Ms Conn, you had other supervisors who identified issues with your performance. Also, -your performance has been reviewed by an independent assessor, Mr Austin, who has also documented issues with your performance and found your performance to be unsatisfactory.

57. Thirdly, the independent assessor (and others as outlined in the documents considered) indicates you were unwilling to accept any personal responsibility for your underperformance and behaved aggressively during the process in a way that made others feel threatened and your behaviour posed a risk to the well-being of others in the workplace.

58. Therefore, for these reasons, I do not consider transferring you to a new supervisor would lead to an improvement in your performance or be in the interests of the Department and other staff within the Department.

Changing guidelines and standards

59. In his report, Mr Austin made his assessment against the goals set out in your PIP. These goals are consistent with the performance expectations within your PDA and did not change, prior to, or during the Step 2 Assessment period.

60. In your response you raised concerns about the development of the PIP. I note in the meeting of 28 May 2019 you were encouraged to provide specific feedback on what could be included in the PIP. I further note in the meeting of 31 May 2019 you expressed you had been very busy and did not provide feedback on the PIP but were happy to proceed with the current PIP.

61. My preliminary view is the goals and subsequent tasks set out in your PIP, as agreed by you, your supervisor and Mr Austin, required you to perform work tasks which are normally undertaken as part of your EL1 Java Developer role.

62. After carefully considering Mr Austin's report, your work performance during Steps 1 and 2 of the underperformance management process, and your responses at all stages of this process, my preliminary view is:

• the Managing Underperformance Process was conducted in accordance with the DoHA WO and the Managing Underperformance Policy;

• Mr Austin's report is comprehensive and thorough, and he has taken into consideration all factors in arriving at his overall assessment of your work performance;

• Mr Austin's assessment of your work is fair and reasonable; and

• you did not attain and sustain the required standard of work performance at the EL1 classification level during the Step 2 Assessment Period.

63. I note that under clause 6.14 of the DoHA WD, if at the end of the Assessment Period the employee has not attained and sustained the expected standard of work performance, the Secretary will determine what, if any, action should appropriately be taken. The Appropriate action may include terminating the Employee's employment. The possible actions which can be taken under paragraph 29.1 of the Managing Underperformance Policy if, at the end of the Step 2 Assessment Period, an employee's performance remains unsatisfactory are to:

• continue in employment in your current job at your current classification level;

• move you to a new job elsewhere in the department at the same classification level;

• reduce your classification; or

• terminate your employment.

64. I have carefully considered all of the evidence before me in respect to this matter and in summary , my preliminary decision is;

• in relation to Step 1, initial discussions with you attempted to address your performance issues . These discussions included an assessment as to whether there were any mitigating factors impacting your performance; and

• the initial discussion process, aimed at improving your performance, did not result in a return to the expected performance standards; and

• in relation to Step 2, at the end of the Assessment Period, the Independent Assessor concluded your performance remained unsatisfactory;

• the evidence tends to demonstrate you are not competent to perform the duties assigned to you at your substantive EL1 classification; and

• the appropriate action for me to take is to terminate your employment under section 29(3)(c) of the Public Service Act 1999 for unsatisfactory performance of duty. Given the history of your underperformance over a period of time with a number of supervisors and your inability to accept any responsibility for your performance issues as well as the independent assessor's findings that your behaviour through the process was aggressive and risk to the well-being of other staff in the workplace, I do not consider that reduction in classification is a viable option.

65. Before I finalise my decision in respect to this matter, I am giving you the opportunity to respond to my proposed decision and put to me any reasons as to why your employment should not be terminated. Any response you wish to make should be provided to me in writing (email is acceptable) by the close of business on 30 August 2019 after which time I will make my final decision based on the material before me.

Available support

66. Finally, I understand these matters may be difficult for you. Accordingly, please consider the Department's Employee Assistance Program (EAP) provides free, confidential, professional and independent advice and support for all staff and members of their immediate family in certain circumstances. The EAP offers short-term, solution focused counselling to help clarify a problem, identify options and develop plans to approach difficult issues in a constructive manner. Benestar Group provides the Department's EAP services and can be contacted directly for advice on appropriate services, office locations and to make appointments by free telephone at 1300 360 364. Additional information about the EAP service is also available online at On 19 August 2019 at 8.57am, the Applicant sent an email to the Department’s workplace relations and behaviours email address, Ms Taylor and others. Attached to the Applicant’s email were a medical certificate and correspondence from two psychologists. The Applicant wrote,

“I will provide my comment [i.e. to the Show-cause Letter] when my health condition improved (sic) and stablised (sic).”

[57] The 19 August 2019 email was forwarded to Ms Whiting (who was the then current Delegate of the Secretary in Ms Taylor’s absence).

[58] On 21 August, at 3.03 pm Ms Whiting responded as follows,

“…. Having regard to the medical assessment of Dr Luke Murphy, and your recent work attendance, I see no compelling reason to grant you an extension to the time provided to the Notice of intention to Terminate Your Employment letter. I acknowledge that the process is difficult that is why I provided you a two week timeframe with which to submit a response. This is also consistent with Dr Murphy’s report that you should receive advance notice so that you can put in place appropriate support. If you do not provide a response by the close of business on 30 August 2019, I am intending to make a final decision based on information before me this includes your responses to the process today and, most recently, the Independent Assessor’ report.”

[59] For the reasons given by the Delegate I am satisfied that the refusal of an extension of time was not unreasonable. There was no medical evidence to the effect that the Applicant could not participate in the show-cause process.

[60] During the later course of events Mr Gao was supported by CPSU Delegate, Lisa Hauritz. On 20 August 2019 Ms Hauritz sent an email to the Applicant in the following terms,

“….

The best anyone can advise you, is that you are best to resign asap.

….”

[61] On 22 August 2019 the Commission conducted a conference in relation the Applicant’s application for a Stop Bullying Order. At 4.39 pm on the day the Applicant requested a voluntary redundancy. At 3.13 pm on 23 August 2019 the Department advised the Applicant that his request for a voluntary redundancy had been declined.

[62] On Sunday, 25 August 2019 the following text message exchange occurred between Ms Hauritz and the Applicant,

Ms Hauritz (25/8 at 7.37 pm): “Ok. Long discussion with Glenn. VR decision, we can’t do anything about it. If you let them terminate view and go to FW you will have no chance. It will get uglier and more horrible than what you have experienced so far. And there is no job you can earn from. And it will go from long time which means you won’t be able to start recovering while you are fighting against them. Glenn’s [advice] and my [advice] is strongly, that you resign…..”

Mr Gao (25/8 at 8.48 pm): “I still want to explore the possibility of unfair dismissal. I will contact some no win no paid law firm tomorrow.”

Ms Hauritz (25/8 at 8.52 pm): “ok.”

[63] At 11:44 pm on 25 August 2019 the Applicant wrote to Ms Hauritz advising that “The attached document has some information about the unfair dismissal. And I am interested in representing myself…”

[64] At 8.47 am on Monday, 26 August 2019 Ms Hauritz responded as follows,

“I strongly disagree with your decision to take this approach. I really think you should resign, to ensure you don’t get a “termination” on your career record and start looking for a job.

Given how sick you are and how much this process so far has impacted on your health and family life, I don’t think it is wise to keep fighting. If you take the termination and logic claim for unfair dismissal, you will lose and you’ll be out of pocket and even more mentally, physically and financially scar. I don’t know how you can find a new job fighting. I don’t know how you can start to hear when fighting. So please talk to your wife again and consider what might be best for your family….”

[65] At 8.53 am on Monday, 26 August 2019 the Applicant responded to Ms Hauritz by text message as follows,

“After some research and discussed with my wife, we decided to take your advice and resigned to move on. Please advise on what to do next.”

[66] At 3.30 pm on 26 August 2019, the Applicant:

a) sent an email to the Department (including Ms Conn);

b) wrote, “Please find attached Employee Separation Declaration” (ESD); and

c) placed a tick in the “resignation” box on the attached ESD.

d) nominated 30 August 2019 as the “separation date.”

[67] At 1.54 pm on 27 August 2019 Ms Conn acknowledged receipt of the ESD.

[68] Under the Border Force Act 2015 the Applicant was required to give 14 days’ notice of resignation. Ms Conn has delegated authority to accept a shorter notice period.

[69] At 4.21 pm on 27 August 2019 Ms Conn wrote,

“As delegate of the Secretary under s.29(2)(a) of the Australian Border Force Act 2015, I accept that Ming’s resignation effective from 30 August 2019.”

[70] The conduct of an employer must be assessed objectively: Ahadizad v ACT Optical. 15 It is not a question of what the Applicant perceived to be the conduct of the Department or his perceptions of its motivations. “Where … the bearing [that the conduct of the employer] has on the decision to resign is based largely on the perceptions and subjective response of the employer made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary”: ABB Engineering Construction Pty Ltd v Doumit.16

[71] Having carefully considered the evidence concerning the events that occurred in the lead up to the Applicant deciding to resign, I have reached the conclusion that the conduct of the Department did not give rise to circumstances that amounted to a dismissal within the meaning of s.386(1)(b).

[72] I am satisfied that, viewed objectively and considered in its entirety, the Department’s processes were balanced, fair and reasonable. If there was any procedural misstep, it was minor. Further, I am satisfied that, on the whole, the officers of the Department behaved professionally. That is not say that the conduct of the Department and its officers was perfect. However, we do not expect perfection. In all the circumstances of this matter the conduct of the Department and its officers was what could be reasonably expected of it and them. The process leading to the Show-cause Letter was not unfair.

[73] The Show-cause Letter then provided another opportunity for procedural fairness.

[74] It is very clear from the evidence that, as at 16 August 2020 no definite decision had been made to terminate the Applicant’s employment. The Show-cause Letter was a genuine opportunity for the Applicant to show why his employment should not be terminated. The fact that the Delegate had discounted alternatives to dismissal, but left open the question of dismissal, supports a finding that no definite decision had yet been made. The Show-cause Letter does not evidence a closed mind on behalf of the Delegate.

[75] Consequently, the Applicant was not placed in a position where he had no other choice but to resign. He could have actively engaged with the Show-cause Letter. That was the opportunity presented to him. He chose to pass up on that opportunity. He did so after receiving advice from the CPSU that his best option was to resign. He consulted with his wife. He carefully considered his options. He then decided to resign. To his CPSU representative he wrote,

“After some research and discussed with my wife, we decided to take your advice and resigned to move on. Please advise on what to do next.”

[76] In his submissions the Applicant wrote “… I was persuaded by [my] union representative and decided to resign to avoid termination…”

[77] I am satisfied that Mr Gao’s resignation was voluntary. He decided it was in his best self-interest to do so. The Applicant bears the sole responsibility for that decision. This finding is consistent with the authorities in Pacific National (NSW) Limited v Bell, 17 Hardwick v National Australia Bank Ltd,18 and Knight v Wattly Australia Pty Ltd.19

[78] It is also important to bear in mind that the Applicant did not resign with immediate effect. This was not a case of him resigning in haste. He resigned on Monday, 26 August 2019 with effect on Friday, 30 August 2019. At no time during the intervening period did the Applicant seek to withdraw his resignation. At no time on the four business days after he resigned did the Applicant assert to the Department that he thought he had made a mistake or regretted the decision and wanted to retrack the resignation.

[79] The Department did not engage in conduct or a course of conduct that forced the Applicant to resign. There was no absence of effective or real choice. Having been served with the Show-cause Letter on 16 August 2019 the Applicant had other choices other than to resign. Consequently, in deciding to resign the Applicant exercised his free will to end the employment. He thought resignation would look better. There was no compulsion or inevitability in the resignation.

[80] Consequently, I find that the Applicant was not forced to resign from his employment because of conduct, or course of conduct, engaged in his employer.

[81] I find that the Applicant was not dismissed from his employment with the Department within the meaning of s.386 of the FW Act.

Conclusion

[82] The Commission, as presently constituted, is satisfied that the Applicant was protected from unfair dismissal, but that there was no dismissal. Consequently, the application for an unfair dismissal remedy is dismissed.

[83] An order will be issued with this decision.

COMMISSIONER

Appearances:

Mr Gao, the Applicant for himself.
Mr I Sekler for the Respondent.

Hearing details:

Canberra,
February,7.
2020.

Printed by authority of the Commonwealth Government Printer

1 Answer to question 1.2 in Form F2.

2 [2017] FWCFB 3941

3 [2017] FWC 5522

4 (1995) 62 IR 200

5 [2017] FWCFB 3941

6 (1996) 67 IR 154

7 PR973462

8 Pacific National (NSW) Limited v Bell (2008) 175 IR 208

9 Neil Ashton v Consumer Action Law Centre[2010] FWA 9356

10 (2008) 175 IR 208

11 [2017] FWC 354

12 PR974876

13 [2012] FWA 9473

14 Transcript PN528.

15 [2015] FWC 1647, [7].

16 Print N6999 (9 December 1996) AIRC (per Munro J, Duncan DP and Merriman C), p2.

17 [2008] AIRCFB 555

18 [2017] FWC 354

19 [2006] AIRC 788

Ming Gao v Department of Home Affairs)