Mr James Willis v Be Imaging Pty Ltd T/A Iris Imaging

[2021] FWC 4603

[2021] FWC 4306

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr James Willis
v
BE Imaging Pty Ltd T/A IRIS Imaging
(U2020/12418)

DEPUTY PRESIDENT LAKE BRISBANE, 29 JULY 2021

Application for an unfair dismissal remedy – whether the applicant resigned – the Applicant did not resign – jurisdictional objection dismissed

[1] Mr James Willis (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with BE Imaging Pty Ltd T/A IRIS Imaging (the Respondent) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] The Applicant commenced employment with the Respondent on 5 June 2019. His employment came to an end on around 28 August 2020. The Respondent raised a jurisdictional objection to the application on the basis that the Applicant was not dismissed, submitting that he voluntarily resigned on 28 August 2020.

[3] On 12 January 2021, the Commission issued a Decision, 1 dismissing the application on its own initiative pursuant to s.587 of the Act, as it appeared that the Applicant had failed to respond to Chambers’ correspondence directing him to comply with directions. Following this, an investigation by the Commission’s information technology team revealed that several pieces of correspondence from the Applicant had been “blacklisted” and therefore, had not been received. As a result, this Decision was revoked on 12 January 2021,2 and the matter was reallocated to me on 15 March 2021.

[4] On 12 April 2021, the Applicant sent correspondence to my Chambers which expressed that he wanted me to recuse myself, alleging that the language used and emails from my Chambers gave rise to his impression of apprehended bias. I determined to hear the recusal application and the jurisdictional objection together. Directions for the filing of materials regarding both these matters were issued and both were dealt with by way of hearing on 1 June 2021.

RECUSAL EVIDENCE AND SUBMISSIONS

Applicant’s Material on Recusal

[5] The Applicant submitted that in my Decision dated 12 January 2021, I was particularly “vehement and scathing” of the Applicant. The Applicant provided an example quoting that "Despite the delay, the conference proceeded." He stated that he had already provided verbally, the reason as to why he was not available, stating that he did not received notification. Additionally, he stated that at this time, he was on the phone to the staff of the Wesley Mission's STARH Project regarding his urgent temporary emergency accommodation when my Associate rang.

[6] The Applicant also submitted that paragraph [3] of the Decision provided "despite numerous phone calls" and that this inferred that there were many phone calls. The Applicant stated that there were two at the most, to which he said that he responded after listening to the Associate's “domineering and offensive voicemail.”

[7] At the hearing, the Applicant referred to paragraph [4] of the Decision which said, “Shortly after the applicant attended.” The Applicant’s evidence was that the word 'shortly' indicated that there were not numerous phone calls. The Applicant further stated that:

“Clearly, directed the applicant. Okay? So this indicates a certain bias to me. And in the following quote, 'And notes your previous tardiness in attending the scheduled conference of 30 November 2020.' There was no tardiness at all. I did attend when I immediately responded to the voice mail from the Associate. After not having received the notice of listings supposedly sent on 17 November 2020 and Mr Simon or my representative at the time said nothing about it either. So it was obvious he did not receive it either. You know there was evidence that it wasn't even sent in the first place.”

[8] It was further stated by the Applicant that I advised nothing about the Respondent's lack of submissions which were due before and after the Applicant’s and that there was nothing advised about the “Respondent's absolute dishonesty in their in their Form F3 response to The Commission, which can be disproved by the surveillance video and my [the Applicant’s] submitted audio files.”

[9] The Applicant further stated that I advised by email that once his matter had been dismissed, it could not be reopened, and this gave the Applicant the impression that there was no avenue of Appeal.

Respondent’s Material on Recusal

[10] The Respondent submitted that I should not rescue myself. The Respondent stated that the communications from myself and the Commission in no way suggested anything that requires a recusal. The Respondent stated that the Applicant was provided adequate opportunity to back his application with supporting information. The Respondent further stated that the Applicant had shown by his conduct and actions during the process, his disregard for people and process.

[11] In the hearing, Mrs Emechete of the Respondent stated that she believed I should hear the case because I had all the documents and that there was no need to recuse myself. Mrs Emechete stated that this was her belief because they all had that email and the Applicant had contradicted himself that he had been receiving emails from the Commission. The Respondent stated that the Applicant was blacklisted, and that was not the fault of the Commission.

The test for recusal

[12] The test I must apply when considering whether I should recuse myself was set out in the High Court’s decision of Ebner v Offical Trustee in Bankruptcy (2000) 205 CLR 337 at 344, namely, whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question or questions that fall for determination in this matter.

[13] The application of this test requires two things. As stated in Theiss Pty Ltd v Sheehan:

“The application of that test requires two things. First, there must be identified the matter or matters upon which arises or arise the relevant apprehension that a decision-maker might decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between that matter or those matters (on the one hand) and the feared deviation from the course of deciding the matter on its merits (on the other).” 3

[14] It is important to note that the authorities have indicated that a decision-maker ought not to disqualify himself lightly. While it is important to avoid apprehended bias, “it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour”. 4

Consideration

[15] I have received and considered consideration to the submissions of both parties in combination with the relevant case law regarding recusal.

[16] Firstly, it is worth noting that the technical difficulties that have plagued this matter were set out in my earlier decision and I do not intend to recount them in detail here. However, it is important to note that the Commission’s information technology team revealed that several pieces of correspondence from the Applicant had been “blacklisted” and therefore did not make it to my Chambers.

[17] This issue took some time to be identified and then resolved. At the hearing of the recusal application, the Applicant stated that the period it took for these issues to be identified and resolved suggested to him that there was “something fishy”.

[18] The Applicant further alleges that the language used in emails from my Chambers gave rise to his impression that there existed apprehended bias. For example, he referred to the parts of that correspondence which included phrases like “despite the delay”, his having been “clearly directed” with “reasonable directions”, a reference to his “tardiness” and his failure to comply “being both disrespectful and unconstructive”. These words were not indicative of any pre-judgment or bias in respect of the merits of the Applicant’s application on my part. Rather, they were directed at what was then perceived as the Applicant lack of engagement with the application he had made. That perception was based upon the seeming lack of responsiveness of the Applicant. However, as has been set out in my decision on 10 March 2021, that was in part due to the technical difficulties being experienced by the Commission of which I was not then aware.

[19] The Applicant took issue with the fact that when he called my Chambers, he was unable to speak with my Associate and instead spoke to a registry staff member. This is common practice when the Associate is unavailable to take the call. He says that he never received a follow up call.

[20] Overall, I do not consider that, when taken in context, these accounts of lack of communication between parties meets the test as outlined by the High Court in Ebner. The examples provided by the Applicant demonstrate that both parties became frustrated with the progress of the matter, which was largely due to the technical difficulties experienced by both the Applicant and the Fair Work Commission which were only subsequently identified.

[21] The Applicant’s submissions demonstrate that both parties, and indeed, my Chambers, became frustrated with the progress of the matter, which was largely due to technical difficulties experienced by both the Applicant and the Commission. The communication difficulties are understood in that context and have been remedied, as is demonstrated with the various communications and submissions that both parties were able to file in respect of the jurisdictional matter with my Chambers.

[22] On that basis, I am satisfied that the situation does not meet the test for apprehended bias and decline to recuse myself.

[23] I will now consider the jurisdictional aspect of this matter.

JURISDICTIONAL EVIDENCE AND SUBMISSIONS

Applicant’s material

[24] The Applicant submitted that he was engaged by the Respondent to perform the duties and functions of a Radiographer at the Respondent's operations at Tamborine Mountain. He commenced employment with the Respondent on 5 June 2019 and was engaged on a permanent, full time basis. He stated that at all material times the Health Professionals and Support Services Award 2020 applied to the employment relationship.

[25] The Applicant submitted that during the week commencing 24 August 2020, various discussions occurred with the Respondent relating to payroll issues. His concerns escalated on 27 August 2020 when he was not paid by the Respondent his ordinary fortnightly pay.

[26] On 28 August 2020, the Applicant says that he was approached without notice and verbally abused by the Oby Emechete, the Practice Manager and Director of the Respondent and wife of Dr Benedict Emechete. The Applicant submitted that when confronted with the verbal abuse, he left the workplace to de-escalate the situation. He stated that at no point did he evince any intention to terminate the employment contract.

[27] On 31 August 2020, the Applicant stated that he returned to the workplace to commence an ordinarily rostered shift and was verbally and physically abused by Dr Emechete. The Applicant asserted that he left the workplace as he harboured reasonable concerns for his health and wellbeing.

[28] The Applicant stated that most staff at IRIS Imaging know that they improve their image with the bosses if they start around 15 minutes earlier than their rostered start time. They are not paid for this. The Applicant stated that he always started on the dot of whatever he was rostered for, usually 0800, 0900, 0830, or whatever had been arranged. He said he was always paid from that start time, and the Respondent’s therefore accepted that he started at that time.

[29] On 1 September 2020, the Applicant said he emailed the Respondent seeking clarification on his employment status. This provided that:

“Dear Oby Emechete and Jane Flick,

Could you urgently confirm my employment status please. In other words, has my employment been terminated?

In the interim, I will not be attending work while I am being verbally and physically abused in the workplace.

If my employment has been terminated, I urgently require a separation certificate for Centrelink, and the payment of entitlements as well as for the hours I have worked this pay period.

You have also not responded to my email requesting that you pay me for the previous pay period. The legal opinion from my union's lawyers is that in this, you are acting illegally under the Fair Work Act 2009 (Cth). I would advise you to immediately pay me or action will commence.

Regards James WILLIS”

[30] On 4 September 2020, the Respondent replied to the Applicant’s email of 1 September 2020. The Applicant submitted that the Respondent alleged that the Applicant had resigned from his employment. The email reads as follows:

“Hello James

Further to our meeting last Friday, we wish to acknowledge the following:

1. Your decision to walk out of the job is accepted as your resignation with your final date being last Friday 28th August 2020.

2. We understand that you attended the clinic twice on Saturday and once on Sunday to clear and collect all of your personal items.

3. We note that you still have a loan which needs to be repaid to BE Imaging as soon as possible - the balance of this loan is currently $6,297. Please make arrangements to repay this amount as soon as possible.

4. Please advise what you are needing for Centrelink so I can arrange for Jane to complete for you.

All the best

Regards

Oby”

[31] Regarding the removal of his belongings from the employer’s premises, the Applicant stated that:

“I removed my stuff, my belongings, as a precaution, as the text messages I've submitted into evidence show.  And I could easily move them back if I was not terminated, because when people lose their job with Iris Imaging they are unceremoniously just thrown out, and you have no time to gather your belongings.  So, you know, most people don't keep much at work.  The special chair they talk about that I removed, it's easily removed in two parts.  It comes apart in two easily carriable parts.  It's not a special chair, it's just an office chair you can buy online, because they did not buy me one.  I was just supposed to sit on the floor or something, so I bought one for myself.  They bought plenty of chairs for the reception area, for Dr Emechete to sit on in his ultrasound room, and as a reporting room, but nothing for me, which shows the regard that they had for me in the first place.”

Visit to the doctor – 4 September 2021

[32] The Applicant sent correspondence to my Chambers on 31 May 2021, attaching amongst other things, a letter from his doctor dated 5 January 2021 regarding symptoms the Applicant presented with on 4 September 2020 after the incident with the Respondent on 31 August 2021. That letter provided that:

“This is to confirm that James Willis attended my practice on the 4/9/2020 complaining of symptoms of dizziness, vertigo and severe nausea. I diagnosed him with BPPV - a Condition called Benign Positional Paroxysmal Vertigo.

I treated these symptoms expeditiously and he improved a little bit and was discharged from my practice that day but did require further visits and follow up after this, along with a hospitalisation.

James explained to me that the symptoms started on the 1/9/2020 and that he woke up with these symptoms. The day prior to this I understand he was physically and verbally assaulted by his employer and when he explained this to me he was very distressed. He described feeling very emotional following this incident and also mentioned that his physical symptoms of dizziness, nausea and vertigo developed the morning after the assault on the 1/9/2020. His symptoms progressed and hence to the visit to me on the 4/9/2020.

I can medically verify that there is a link between Benign Positional Paroxysmal Vertigo and stress. In my medical opinion I believe that the physical and verbal assault on 31/8/2020 by his employer created much stress and anxiety in James and has attributed to this condition of BPPV.

I understand he has never suffered this condition before.”

Workcover

[33] The Applicant also tendered various documents and submissions regarding a WorkCover Claim and Decision. Given these are the subject of an appeal, I have not given considered them in this decision.

Recordings and CCTV from 31 August 2021

[34] Audio and CCTV footage was submitted regarding the incident between the Applicant and the Respondent on 31 August 2021.

[35] The Applicant made the audio recordings covertly but denied having a premeditated plan to obtain money from the Respondent by making the recording. The Applicant stated his phone was set on record to catch any further abuse of Mrs Emechete, who he says has a history of this behaviour. He was not trying to cause mischief but wanted to record any further “tirade” of Ms Emechete. He says Ms Emechete’s conduct has been noted in submitted patient reviews, as well as records kept by the Applicant’s Union. As it turned out, the Applicant happened to record Dr Emechete instead.

[36] The Applicant’s evidence was that the Respondent had a history of being an oppressive employer, which created the Stockholm Syndrome effect, where employees do things for them out of some misguided sense of loyalty or even fear.

[37] The Applicant stated there was missing internal CCTV footage which the Respondent do not want to show as it shows what happened behind the external door. The Applicant stated that his evidence is consistent, but the Respondent’s is not.

No resignation occurred

[38] In the hearing, the Applicant reiterated that when he turned up to work on the Monday he was verbally and physically assaulted and left within a short period of time. As a result of that interaction, the Applicant understood that he could not go back to work.

[39] The Applicant stated that he did not resign from his employment and did not provide clear, unequivocal intention of a desire to terminate the employment relationship. The Applicant submitted that at no time did his actions demonstrate a desire to terminate the employment relationship. Rather, he was unable to return to work because of the Respondent’s conduct. That is, there was no positive and unequivocal communication on his part which could be interpreted as a resignation, and therefore, he submits he was clearly terminated at the initiative of the employer.

Respondent’s material

[40] The Respondent submitted that the Applicant was not, at the time alleged, and has not at any time since, been dismissed. The Respondent’s evidence was that the Applicant voluntarily resigned from his employment on 28 August 2020. Further, the Respondent submitted that at no time did the Respondent terminate or initiate the termination of the Applicant's employment. Nor, the Respondent says, was the Applicant forced to resign because of any conduct of the employer. The Respondent submitted that s.386 of the Act does not apply in the case of the Applicant within the meaning of dismissal, as the Applicant deliberately and voluntarily resigned.

[41] The Respondent submitted that the Applicant deliberately by his conduct and words – which were unequivocal, clear, and intentional – terminated his own contract of employment. This view, the Respondent says, is supported by his actions and conduct following his resignation. The Respondent stated that their actions have not, “directly and consequently” resulted in the termination of the Applicant’s employment, and the Applicant voluntarily chose to resign without any action on behalf of the Respondent taken with the intent of bringing the employment relationship to an end.

[42] The Respondent stated that the Applicant had been working for the Respondent for a year and two months and would have known full well the impact that his actions would have on the Respondent's operations.

Background to meeting of 28 August 2020

[43] The Respondent submitted that it was important to provide the background to what led to the meeting of 28 August 2020 between the Applicant and Ms Emechete. The Respondent stated that the initial communication started between Ms Jane Flick (the Bookkeeper) and the Applicant regarding the reinstatement of the suspended repayment of a loan that was provided to the Applicant at the start of his employment. The loan repayment was suspended for six months due to COVID-19, as a form of support to the Applicant during the COVID-19 peak and lockdowns last year. Ms Flick had asked when the Applicant would recommence re-paying of the loan after the six months period had ended. Thereafter, the communication between Ms Flick and the Applicant became hard, with the Applicant becoming difficult and abusive in his communications. The Respondent says that Ms Emechete asked to see the Applicant on Friday 28 August 2020, with the intention of clarifying Ms Flick's request.

Termination

[44] The Respondent submitted that Ms Emechete had a discussion with the Applicant on the morning of Friday 28 August 2020 in relation to repayment of a loan made to him by the Respondent and his communication with the Respondent’s bookkeeper by email in relation to same. During that discussion, the Respondent said the Applicant acted in a manner that was intimidating, derogatory and rude to Ms Emechete (including making racial references) and then got up and stated, “I am out of here”. The Respondent submitted that the Applicant went into the X-ray room, switched off the machine, then collected his bag and said, “I am leaving this job”, before leaving the premises. He did not return despite having patients booked in.

[45] The Respondent stated that the non-payment of the Applicant’s wages was a payroll system issue due to similarities between the names of the Applicant and another service provider. This was identified and rectified. The Respondent says the Applicant had escalated matters prior to this issue.

[46] The Respondent stated that the Applicant was provided adequate notice of the meeting, and that his only complaint at the time was that he wanted to more time to inform the Union.

[47] The Respondent submitted that the Applicant, when approached, went on to abuse the staff.

[48] The Respondent said the Applicant announced that he was, “leaving the job” and that he “quits”. The Respondent further stated that the Applicant then subsequently attended the Respondent’s premises twice on Saturday 29 August 2020 and once on Sunday 30 August 2020 and removed his personal belongings, including a special chair that he used. The Respondent stated that his actions and abusive comments did not support his claims that he was trying to de-escalate the situation and that was why he left.

[49] The Respondent further submitted that the Applicant announced he was quitting and confirmed those words by removing his things. The Respondent asserts the Applicant clearly did not come to work on 31 August 2020 with the intention to work. That is because he came late and had his mobile phone recording his interactions with staff, which they say was not an action someone coming to resume work will do but someone with some mischief.

[50] The Respondent submitted that they did not terminate or ask the Applicant to resign or leave the office. Rather, the Applicant voluntarily left the office. The Respondent denied taking any action that demonstrated that it no longer intended to be bound by the employment contract. On that basis, the Respondent submitted that is did not and could not have repudiated the employment contract.

[51] The Respondent submitted that it was the Applicant’s own actions that ended the employment relationship. As such, the Applicant was not ‘dismissed’ for the purposes of the Act and is not entitled to the benefit of the jurisdiction.

[52] The Respondent submitted the CCTV footage does not support the audio files the Applicant relies on. The Respondent further noted that it is important to note that the CCTV camera and the audio files were seen and listened to by the Queensland Police and after the police reviewed it, dismissed the Applicant's report of an alleged verbal and physical abuse.

[53] The Respondent stated that the audio files were presented in the Applicant’s report to the Queensland Work and Health & Safety about an alleged “work related violence” made by the Applicant. The Respondent submitted after reviewing the audio files and the CCTV, they too dismissed the report.

[54] The Respondent submitted that the Applicant's resignation and the Respondent's acceptance was verbally communicated on 28 August 2021 and further confirmed in communication of 4 September 2020.

[55] The Respondent stated that the Applicant’s resignation was very deliberate and his actions before and after decision supported this. The Respondent further submitted that the audio recording is evidence that clearly supports the Respondent’s position that the Applicant was not unfairly terminated but he resigned his appointment and walked out of his job.

[56] The Respondent stated that the external CCTV footage clearly shows that Applicant was not physically assaulted. They say he has continued to peddle all his disjointed stories and lies and made false reports to the police, despite having been shown the CCTV footage. The Respondent stated that the Applicant had managed to twist every story in an attempt to extort money from the Respondent by reporting a false physical assault and a false work cover injury, stating unrelated, unsubstantiated, distorted accounts of what actually happened.

Statement by Ms Emechete

[57] Ms Emechete stated that on the 28 August 2020, she called IRIS Imaging Mt Tambourine to inform the Applicant that she would be coming in to see him and discuss some business-related matters. The Applicant was not there. Ms Lisa Foon, the receptionist, stated that the Applicant was late but would let him know that Ms Emechete had called.

[58] Mrs Emechete stated that she left Helensvale and arrived at Mt Tambourine later that day between 11:00am and 11:30am. On arrival, she saw the Applicant in the room with his legs on the desk. After speaking with Ms Foon for a while, the Applicant came out to join them and they exchanged pleasantries for about a few minutes. Mrs Emechete said she then asked the Applicant if they could go to the doctor's office to talk privately. She says he refused to speak with her, shouted her down and insisted that she need to go through the Union before seeing him. At this point, she asked him why she needed to go through the Union when he had not heard what she came to discuss. She said he kept shouting and talking over her.

[59] Ms Emechete said she told the Applicant that the usual process is that internal matters are initially discussed internally, and efforts are made to resolve the matters, and if they fail then parties can approach third parties or the next stage of the process to address the matter. Nevertheless, she claimed that she told the Applicant that he could have the Union join by telephone. She waited for him to decide if he wanted call the union, which he chose not to.

[60] Mrs Emechete further stated that she asked him if he had spoken to the Union before writing the rude email he sent to her. At this point, she said the Applicant kept shouting her down and refused to allow her to speak, and to let him know why she came. He kept on and then said rudely, “Oby what is that you want to discuss?” Mrs Emechete stated that she had come to discuss the email that Jane the Bookkeeper had sent to him asking when he would resume paying the loan the company had been given to him.

[61] Mrs Emechete stated that the Applicant went on to make racially and otherwise derogatory comments to her and then got up and said “I am out of here.” She said he went into the X-ray room, switched off the machine, collected his bag, and said “I am leaving the job” and that he “quits.” Mrs Emechete stated that if he was walking off the job, he should kindly inform the Union that he walked out.

[62] Mrs Emechete said he responded, “Yeah yeah Oby” and laughed whilst walking towards the door. She said the Applicant did not return to work on Friday to finish the remaining patients but came twice on Saturday and once on Sunday, to collect his personal belongings.

Statement of Dr Benedict Emechete

[63] Dr Emechete, stated that on the 31 August 2020, himself, the receptionist, and a radiographer were at work before 8am. The Applicant arrived after 8am. Dr Emechete said if he was coming to work, he was meant to be in the office prior to 8am. Dr Emechete asked the Applicant to step outside. Dr Emechete reminded the Applicant that he previously walked out of the job and did not return, despite having patients booked. Additionally, the Applicant removed his belongings from the practice over the weekend, and for that reason an alternative arrangement had been made to cover the Monday bookings.

[64] Dr Emechete stated the Applicant replied that he had not received a termination letter. Dr Emechete stated because the Applicant had walked out on Friday, had not attended the clients, and had collected his personal belongings, he terminated his own contract.

Statement of Lisa Foon

[65] Ms Foon stated that on 28 August 2020, Ms Emechete rang for the Applicant, but he had not arrived. Ms Emechete said she would visit the business that day and Ms Foon should inform the Applicant, which she did when he arrived. The Applicant instantly became agitated and started quoting Union rules and regulations. She stated that she was under the impression he thought Ms Emechete wanted to see him about the complaint lodged with Australian Health Practitioner Regulation Agency (APRHA) against him.

[66] Ms Foon stated that when Ms Emechete arrived, they all chatted for a while and then Ms Emechete asked if she could talk to the Applicant alone. Mr Foon stated that he instantly started quoting that he needed 24 hours' notice to invite the Union. Ms Emechete was quite taken aback and repeated she would like to talk to him. Before she could explain why, the Applicant continued quoting the union regulations. Ms Foon stated that at this stage she excused herself and went to an adjoining room, which was a few feet away.

[67] Ms Foon stated that the verbal exchange got a little heated and she could not make out all that was said. She heard the Applicant keep repeating “you're not in Nigeria anymore Oby we have rules here." Ms Emechete continued to ask for the meeting, and was getting very frustrated at not being able to finish a sentence without the Applicant talking over her.

[68] Ms Foon stated that the Applicant proceeded into the X-ray Room turned off the X-ray machine and two computers. He then gathered his backpack and left the building laughing.

CCTV Footage from Monday

[69] I have reviewed each of the CCTV footage recordings that were provided, both from the internal and external camera angles.

[70] The footage depicts the Applicant walking towards the premises, doing something on his phone and then entering the building carrying a backpack. Very shortly after he enters it looks like Dr Emechete asks the Applicant to follow him outside. After they exit the premises, Dr Emechete appears to be talking to the Applicant. He half steps towards the door, but stops and raises his hands and claps them. His gestures become larger and more direct. He raises his hands and claps again, moving slightly towards the Applicant. Shortly thereafter Dr Emechete takes half a step back and points forcefully towards the Applicant, before walking back inside. The Applicant looks at his phone and a moment later Dr Emechete opens the glass door again with some speed and force. The door obscures the view of events from the external CCTV footage. However, the internal camera shows that Dr Emechete’s hand remains on the door handle but the rest of his body cannot be seen. Another staff member walks towards the doorway to see what is going on and an onlooker in the waiting room is also prompted to stand and watch the events. Dr Emechete returns inside and closes the door. The Applicant leaves.

Audio recording

[71] I have listened to the audio recordings made and submitted by the Applicant. In the first recording, Dr Emechete tells the Applicant, “you know you walked away, so please just go”. He repeats that a couple of times. The Applicant says that he has not received an email saying that he was terminated.

[72] The following exchange occurs:

Dr Emechete: No, you don’t need an email. You walked away. You walked away. You walked away

The Applicant: You’re supposed to terminate me by email.

Dr Emechete: No no no, you go away please. So, just, let’s not make a scene. You walked away.

The Applicant: Well, you should have notified me.

[73] Dr Emechete then claps loudly and yells, following which the Applicant says, “Don’t hit me”. Dr Emechete says something else in a loud voice which I cannot make out and the Applicant repeats, “Don’t hit me”. Dr Emechete then says, “don’t come in here” and the Applicant repeats “Don’t hit me” a couple of times. The door shuts and that the recording ends.

[74] The second recording begins abruptly. The Applicant says, “Don’t grab me.” Dr Emechete responds, “I will beat the hell out of you.” The Applicant responds, “I am ex-armed forces. Don’t grab me.” Dr Emechete responds, “ I will kill you.” The Applicant says, “Don’t kick me.” Dr Emechete says, “Idiot, get out.” The door closes and the recording ends.

Legislative Framework

[75] Section 386 of the Act relevantly provides:

“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.”

[76] Section 386 of the Act has created two clear grounds on which a claim could potentially proceed. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941, the Full Bench expanded on the content of the two limbs:

“[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:

(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 probable (sic) 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.”

[77] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is a foundational case in determining what is classified as a ‘forced resignation’. There it was stated:

“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.”

[78] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli[2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab in the following terms:

“[31] The approach taken in Mohazab that a termination of employment at the initiative of the employer could be constituted by a “forced” resignation was followed in numerous decisions made in respect of the various iterations of the termination of employment scheme in the Workplace Relations Act 1996. These decisions most notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J) referred to Mohazab and said:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from 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. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[32] In the latter decision a Full Bench of the Australian Industrial Relations Commission said:

“[23] ... It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:

“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

•  where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

•  where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

Consideration

[79] I have had regard to the submissions and evidence given by both parties. I am not satisfied based on the evidence before me that the Applicant resigned on the Friday, when he and Ms Emechete had their argument. While walking out of work and not returning for patients who had been booked in, might in some circumstances suggest that a person did not intend to continue their employment relationship, I accept that in these circumstances there was at least some ambiguity about the Applicant’s employment status. Further, the text messages sent by the Applicant indicated that he was taking the measures of collecting his belongings over the weekend as a precautionary measure and the email he sent asking for confirmation of his employment status over the weekend demonstrates that his conduct was not an unequivocal demonstration that he no longer wished to be bound by the employment contract.

[80] I have turned my mind to whether the Applicant’s conduct and correspondence over the weekend and his arrival at the workplace on Monday morning was carefully constructed. That is particularly so given that the Applicant repeats in his conversation with Dr Emechete, “Don’t hit me”, without any visible signs to distance between him and Dr Emechete. One would think that if a person genuinely feared that another person was about to strike them, that they would seek to put some distance between them. The Applicant does not do so.

[81] However, the audio recording is quite damning. Dr Emechete becomes angry and says, “I will beat you” and “I will kill you”. Following particularly those comments, I am prepared to accept that the Applicant had no effective or real choice but to resign. In other words, the termination was brought about by the conduct of the Respondent.

[82] Accordingly, I order that the jurisdictional objection be dismissed. I will issue directions with respect to the merits of this application in due course.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR732279>

 1   [2021] FWC 133.

 2   [2021] FWC 763

 3 [2020] FCAFC 198 at [59]. See also the High Court’s decision in in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344.

 4   Re JRL; ex parte CJL (1986) 161 CLR 342, 253.