Morgan Conroy v Optus Administration Pty Ltd
[2023] FWC 2341
•18 SEPTEMBER 2023
| [2023] FWC 2341 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Morgan Conroy
v
Optus Administration Pty Ltd
(U2023/3972)
| DEPUTY PRESIDENT DEAN | CANBERRA, 18 SEPTEMBER 2023 |
Application for an unfair dismissal remedy – whether applicant was dismissed.
Mr Morgan Conroy (Applicant) has made an application for a remedy pursuant to s.394 of the Fair Work Act 2009 alleging that he was unfairly dismissed from his employment with Optus Administration Pty Ltd (Respondent).
It is not in dispute that on 21 April 2023 the Applicant gave the Respondent four weeks’ written notice of his resignation.
The Applicant claims he was dismissed on 4 May 2023, approximately two weeks into his notice period.
The Respondent raised a jurisdictional objection to the application, being that the Applicant has not been dismissed within the meaning of s.386 of the Act because he resigned voluntarily and therefore his employment was not terminated at the employer’s initiative, and further that he was not forced to resign because of conduct engaged in by the Respondent.
A hearing took place on 13 September 2023. At the hearing, the Applicant appeared on his own behalf and Mr M Foran of Counsel appeared with permission for the Respondent.
For the reasons set out below, I find that the Applicant was not dismissed within the meaning of the Act and accordingly I will dismiss the application.
Background
The Applicant had been employed as a Network Engineer when resigned on 21 April 2023, giving four weeks’ notice in writing to his manager, Mr McLaughlin.
On 3 May 2023 the Applicant was asked to arrange a handover of his work by Mr McLaughlin. The Applicant agreed in cross examination that he refused to provide a handover to the person nominated by the Respondent.
On 4 May 2023 the Applicant met with two managers, Mr Cardinez and Mr Khan. The Applicant says that during this meeting he was dismissed and told to leave the premises immediately. The Respondent says the object of the meeting was to understand why the Applicant had resigned and understand why he was not prepared to provide the handover that had been requested of him. At the meeting, the Respondent says the Applicant became angry and told Mr Khan to ‘fuck off’. In response, Mr Khan told the Applicant to ‘take your belongings and leave now’. Mr Khan says he told the Applicant he would be paid the balance of his notice period as he was leaving the building.
When is a person dismissed?
The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli[1] (Bupa), a Full Bench of the Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1) which included the following:
(1)There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2)A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.
In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park[2] Deputy President Sams noted the following when considering whether the applicant was dismissed:
a.Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford Dictionary as: “the action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”
b.This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab) where a Full Court of the Industrial Relations Court of Australia said, ‘… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.’
c.In Mohazab, the Full Court also said:
‘In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.’
d.A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘… to constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect ...’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].
Consideration
Having considered the evidence and submissions, I find that the Applicant was not dismissed within the meaning set out in s386(1) of the Act, in that he was not dismissed at the initiative of the Respondent, nor was he forced to resign because of conduct engaged in by the Respondent.
To the extent the Applicant suggested he was forced to resign, I reject this argument. There is simply no compelling evidence to support such a finding, including any suggestion that the resignation was given ‘in the heat of the moment’.
In the hearing, the Applicant focussed on his contention that he was dismissed on 4 May 2023. His application form and materials filed in support of his application record 4 May as his dismissal date. The Applicant submitted that “I only initiated that termination by tendering my resignation with the appropriate notice period of 4 weeks, it was ultimately my employer who choose to terminate this relationship by dismissing me effective immediately after learning the reasons I was leaving the company on May 4th 2023 which was 13 days after I had originally submitted my resignation by email”.
The Applicant gave evidence that Mr Khan told him during the meeting on 4 May that he was ‘dismissed’. The evidence of the Respondent’s witnesses is that the Applicant was told to ‘leave now’ but the word ‘dismissed’ was not used. I am satisfied on the evidence that the Respondent did not dismiss the Applicant, but instead made a lawful and reasonable decision to not require the Applicant to work the remainder of his notice period. This was reasonable in circumstances where the Applicant refused to provide a handover of his work to another employee. It was lawful in that payment in lieu of notice was an option available to the Respondent under the terms of the Applicant’s employment contract. In other words, he was not dismissed on 4 May 2023.
The Applicant initially disputed he was paid the balance of his notice period, but in cross examination he conceded the payment he received was ‘close to’ what he thought he should have received in his final pay. I am satisfied, based on the payslips in evidence, that the Applicant was paid out the balance of his notice period.
In summary, there is absolutely no doubt the Applicant resigned of his own accord. He worked two weeks of his four-week notice period and was paid the balance of his notice period. This was not a termination at the initiative of the Respondent.
For completeness, if I am wrong and the Applicant was unfairly dismissed on 4 May, the undisputed fact of the Applicant’s resignation means that his employment would have ceased at the end of the notice period, being 22 May 2023. In circumstances where the Applicant did not seek reinstatement, the maximum amount of compensation that could have been awarded is the pay he would have received between 4 May and 22 May 2023[3]. Given the Respondent has already paid the Applicant for this period, he has suffered no compensable loss.
This application is dismissed.
DEPUTY PRESIDENT
Appearances:
M Conroy on his own behalf.
M Foran of Counsel with K Kossian of Maddocks for Optus Administration.
Hearing details:
2023.
By video:
September 13.
[1] [2017] FWCFB 3941.
[2] [2012] FWA 2473.
[3] This is because the first step in the formula for calculating compensation, as set out in Sprigg v Paul’s Licenced Festival Supermarket (1998) 88 IR 21, is to estimate the remuneration the employee would have earned had they not been dismissed.
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