[2021] FWC 1765

FAIR WORK COMMISSION

DECISION

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

Mr Paul Martin
v
Department of Home Affairs T/A Australian Border Force
(U2020/11097)

COMMISSIONER HUNT

BRISBANE, 31 MARCH 2021

Application for an unfair dismissal remedy – whether applicant was forced to resign because of conduct or a course of conduct engaged in by the respondent – jurisdictional objection upheld - application dismissed.

[1] On 17 August 2020, Mr Paul Martin made an application for unfair dismissal remedy under s.394 of the Fair Work Act2009 (the Act) to the Fair Work Commission (the Commission) alleging he had been dismissed from employment with the Department of Home Affairs (the Respondent/the Department) and that the dismissal was harsh, unjust or unreasonable.

[2] The Department raised a jurisdictional objection; it says he voluntarily resigned his employment and was not dismissed. The Respondent contends, therefore that the Commission cannot be satisfied under s.385(a) of the Act that Mr Martin was dismissed within the meaning of either s.386(1)(a) or s.386(1)(b) of the Act.

Background

[3] Mr Martin commenced employment with the Department on 10 December 2007 as a Regional IT Manager for Queensland and the Northern Territory. His position was Executive Level 1 (EL1), and the employment was covered by the Department of Home Affairs Workplace Determination 2019 (the Workplace Determination).

[4] It is uncontested Mr Martin resigned his employment on 6 August 2020. His last day of employment was 14 August 2020. His salary at the time was $116,582.00 per annum. 1

[5] Mr Martin accepts that he resigned from his employment with the Department, however he alleges that he was forced to resign from his employment because of conduct, or a course of conduct, engaged in by the Department. He alleges that the Department, by engaging in unilateral variation to his employment conditions diminished and thereby repudiated the contract of employment, thereby leaving him with “no reasonable choice other than to undertake a forced resignation.”

When has a person been unfairly dismissed?

[6] Section 385 of the Act provides that a person has been unfairly dismissed if the Commission 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.

Has Mr Martin been dismissed?

[7] As set out above in s.385 of the Act, only employees who have been dismissed are able to make an application for an unfair remedy application under the Act.

[8] Section 386(1) of the Act provides that a person has been dismissed if:

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

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

[9] A threshold jurisdiction issue for determination is whether Mr Martin has been dismissed from his employment.

Hearing

[10] This matter was heard before me by telephone on 6 November 2020. Mr Martin appeared for himself, giving evidence in support of his application. Mr Clayton Merriman, a current Department employee made a witness statement for Mr Martin in these proceedings. He was not required for cross-exanimation by the Department, or to otherwise give evidence at the hearing.

[11] Mr Cameron Spence, Senior Associate of McInnes Wilson Lawyers was granted leave pursuant to s.596(2)(a) of the Act to appear for the Department. The below persons appeared at the hearing giving evidence for the Department:

• Mr Simon Moore, Director of Data Centre Service Section of the Department; and

• Ms Shannon McCauley, Senior Legal Officer, Employment Law and Litigation, Civil, Commercial and Employment Law Branch of the Department.

Applicant’s evidence

Evidence of Mr Martin

[12] Mr Martin made a witness statement and appeared and gave evidence at the hearing. Mr Martin commenced employment with the Respondent on 10 December 2007 in the position at what was then “Customs” in a Customs Level 4, Executive Level 1(EL1) Regional IT Service Delivery Manager role. He managed a team of four IT Field Service Officers (FSO’s), two in Brisbane, and two in Darwin.

[13] Mr Martin stated he has consistently been a high performing employee. He has represented ICT Division in the Leadership and Peoples Advisory Council, met and exceeded expectations in performance reviews, and trained, mentored and managed teams from Brisbane who were based in Darwin, Sydney, Perth and Canberra. He has never received a negative performance review comment. After the NSW Acting Regional IT Manager took a voluntary redundancy, Mr Martin took over management of the Sydney Field Services team of two additional FSO’s and recruited a third FSO for the team from the operational business area. At that time, he had seven FSO’s reporting to him. The following year he received an ‘exceeds expectations’ performance review rating and a financial reward in line with the performance review policy.

[14] By 2014, Australian Customs Service had become Australian Customs & Border Protection Service (ACBPS). A Machinery of Government (MoG) change merging ACBPS and Department of Immigration and Citizenship (DIAC) started in 2014. This led to a period of ongoing organisational change commencing in the second quarter of 2015. For the Information Services Branch this was known as the “ICT Sourcing Programme.”

[15] Mr Martin referred to the transition plan which states:

“In March 2015 the Departments ICT Sourcing Programme undertook a review of the sourcing arrangements of both ACBPS and DIBP to determine where there are efficiencies that can be made in the merger of the two Departments into a single entity.”

[16] The Field Services Transition Plan states the following:

“The insourced services will be provided by Departmental uniformed staff delivering services to frontline or Australian Border Force facilities such as:

• Airports

• Sea Ports

• Container Examination facilities, and

• Customs Vessels

As a rule of thumb if there is a requirement for additional physical security access to a site to access the equipment such as an Airport Security Identification Card (ASIC) or Maritime Security Identification Card (MSIC) this will work will be carried out by uniformed Departmental offices as opposed to an ESP.

Departmental or uniformed staff will provide field services support to all the classified systems in use in the Department as they will hold the appropriate clearances and have undergone Organisational Suitability Assessment.”

[17] Mr Martin stated that his team came under the category of uniformed Departmental officers, and he was originally advised that his team would continue to provide the same IT support services to the former Customs or Border Protection sites, and Unisys, the ESP would continue to provide IT support services to the former Immigration sites.

[18] In early May 2015, Mr Martin says the Unisys technicians arrived at the Customs site and advised him that they had been instructed to commence supporting Customs sites. Mr Martin’s Brisbane team, including himself, Mr Chris Wehlau and Mr Merriman were completely taken by surprise. He stated that his manager, Ms Barbara Wooderson, informed him that Unisys were not supposed to engage them until she had discussed this new arrangement.

[19] In July 2015, Mr Martin says he raised the issue of potential new job descriptions or voluntary redundancies with Ms Wooderson. Ms Wooderson stated that voluntary redundancies were not being considered. Regional staff were excluded from the redeployment discussions, offers and due diligence consultation processes that all other ICT Service Provider Groups based in Canberra had. The FSO role was deemed to continue in a shared, rebranded manner with technology support for front line operations remaining with the internal team.

[20] On 1 July 2015, the Department of Immigration and Border Protection was established, meaning further changes. During October 2015, Mr Martin authored a document titled “Technology Support Services Engagement.” The Community and Public Section Union (the CPSU) was also involved in discussions regarding the changes in the supply of ICT support within the Department, wiring a letter to the Department on 12 October 2015.

[21] Mr Martin’s evidence is that throughout this period of change, he optimistically, persistently, and diligently assisted management and the regional teams to redefine and restructure regional ICT roles. He collaborated with staff and management authoring the “Technology Support Services Engagement” document. This document was authored with the intention that it steer the evolution of the former Customs Field Services roles rebranding them as “Technology Support” and redefining IT service management processes.

[22] He stated that in May 2016, Ms Wooderson discussed the plans to move the Technology Support teams under the Storage and Facilities Services section. Mr Martin’s team continued to perform transition support services, upskilling Unisys Field Services, while continuing to manage Technology Support tasks at sites and on equipment still unsupported by Unisys.

[23] Mr Martin set out in his evidence that in August 2016, Mr David Creagh and Mr Paul Hampton travelled to meet regional teams to discuss the new structure. He stated that he and his team were not informed of any change to their roles, just a change in structure.

[24] Mr Martin stated that in October 2016, he wrote new position descriptions for his EL1 role based on the “Technology Support Services Engagement” document. This role strongly depicts IT Service Delivery and Management functions.

[25] On 21 November 2016, Mr Hampton left, and Mr Nathan McGlynn took over as Mr Martin’s manager.

[26] During 2017, Mr Martin says the Department further extended outsourcing to include frontline work areas to Unisys without informing internal staff or following the Department workplace determination. The role for Mr Martin and his team was changing from an operational role managing and supporting end-user computer equipment and other technology to an administrative role, supporting vendors and project teams to access and undertake work in data centre facilities. He stated that outsourcing continued gradually eroding and stripping all end-user technology support operational and management responsibilities from his EL1 role and from the regional ICT field services teams in all operational areas. IT administrative privileges allowing them to manually install software and modify settings on end-user computer equipment was removed and the access to the mobile device management (MDM) system for smartphones was revoked when a new MDM was implemented.

[27] Mr Martin set out that in mid-2017, Mr Creagh left, and Mr Moore took over. Mr Martin says this change in leadership signified a break of management continuity around the sourcing programme and added to delays in effectively managing staff transition.

[28] Mr Martin explained that in November 2017, redeployment was proposed to the Border Systems Support. It is his evidence that the Department recognised that the loss of technology support functions from the role was a significant issue, and between October 2017 and November 2018, redeployment opportunities within the Border Systems Support Section was discussed. He said that he and others considered this to be an exciting opportunity.

[29] In April 2018, Mr Mark DeStefano and the NSW team were advised that they would change reporting lines from Mr Martin to Mr Nathanwi Hart, creating more changes to tasks. Mr Martin noted that Mr DeStefano protested the change, sending an email asking questions, including, “I don’t want to spend the rest of my working life escorting people removing rubbish …”.

[30] Mr Martin noted that in answering Mr DeStefano’s questions about the role, Mr Nathan McGlynn replied, “Your role description will not change as part of this minor re-alignment. I have again attached the latest version of the tech support role description for you to read. You are correct, your previous role prior to the merger between Immigration and Customs does not exist any longer. Your current role within DCIS will require you to assist our external service providers to access their equipment to meet service level agreements. You will also be required to ensure all patch, communications and server rooms within your jurisdiction (all of NSW) is clean, tidy and does not pose any WHS risks to yourself or contractors working in the space. At times this will require you to remove rubbish, or any other object/device that may pose a risk to personnel safety. This is expected of all the tech support/DCIS team members in each state.” 2

[31] In June 2018, the regional team attended a training session in Canberra, which Mr Martin says caused him to feel very much outside the management circle as some meetings were cancelled at this event.

[32] In October 2018, Mr Martin’s “APS6 resource” in Brisbane, Mr Wehlau moved from the Brisbane team to Canberra due to family issues. Mr Martin continued to task Mr Wehlau with Data Centre administration work related to Queensland Data Centra Infrastructure for a “while” until he was told that he would lose that resource. Mr Martin was informed that no other resource would be provided, and he would have to absorb all of Mr Wehlau’s staff management, administrative and technical responsibilities. Mr Martin described this as “another diminishing situation.”

[33] In November 2018, the regional team attended a training session in Canberra. During this meeting Mr Martin was advised that the redeployment proposal to Border Systems Support was withdrawn without explanation one year after it was first proposed. Mr Martin says this was very disappointing. This redeployment proposal had been a “carrot dangling from the stick” keeping many of the Technology Support team positive. Mr Martin stated he continued to seek secondments and redeployment opportunities in IT Service Delivery Management.

[34] Mr Martin’s evidence is that in early 2019, Mr Wehlau informed him that he was initially approved to move back to Brisbane, however he was subsequently called into a management meeting in which he was advised that he would not be permitted to move temporarily or permanently back to Brisbane unless either Mr Martin or Mr Merriman left. Mr Martin described this as “again another diminishing situation” with only one resource in Brisbane and none in Darwin.

[35] On 1 February 2019, Mr Merriman commenced long service leave. Mr Martin stated he was now left as the only resource in Brisbane, required to absorb all the workload in Brisbane and “diminished” to complete infrastructure tasks at the APS level. He stated that while he maintained a positive front, he was by then deeply impacted by the lack of management engagement with him. He continued to seek redeployment opportunities and roles in IT Service Delivery Management.

[36] In February 2019, Mr Martin and other employees were instructed to change their email signature, removing the word “Technology” to be replaced with the work “Infrastructure.”

[37] Mr Martin stated that on 1 May 2019:

“Management emailed some details of new advertised positions that Technology Support staff would need to apply for. attached and named “R0” is a copy of that email. A number of the regional Technology Support employees at the Australian Public Service (APS) Work Level were incumbents acting in these higher duty IT Field Service positions for a number of years. The incumbents had substantive positions at a lower APS level. It was against policy to continue long-term acting, and as a remedy to this the department sought to recruit the incumbents permanently into the new positions. New job descriptions were written for these roles and the incumbents invited to apply. The department recruited the incumbent former Field Services Officers into these new Data Centre Infrastructure job descriptions. I did not see a copy of the position description until it was provided to Clay Merriman in paragraph 30. I had assumed that the positions were the Technology Support role descriptions that I had authored and had approved by Work Level Standards. A subset of my position attached and named “A2”.” 3

[38] In July 2019, another training session occurred. Mr Martin says this meeting was “disappointing and demeaning.” It was the third time Mr Moore and Mr McGlynn had all been in the same room as the Technology Support staff and no strategic management discussion around delegating responsibility and authority for anything happened.

[39] Also, in July 2019, Mr Merriman returned from long service leave and asked for voluntary redundancy, as set out in Mr Merriman’s evidence below. Mr McGlynn asked Mr Martin what the impact would be if Mr Merriman was granted a voluntary redundancy. He responded with a list of tasks. Mr Moore denied Mr Merriman’s request for voluntary redundancy.

[40] Mr Martin stated that by August 2019 the APS employees in his team and the broader Technology Support team now had a new “Infrastructure Support” job description. The new position descriptions supplied clarify that he no longer provided any significant IT support functions and his role had changed in name and in function unilaterally. Mr Martin was not consulted as to the contents of the position descriptions in any way.

[41] Mr Martin provided an account of how in September 2019, he had been required to spend an entire day escorting sub-contractors into server rooms where those sub-contractors had relevant clearance levels which did not required them to be escorted. Mr Martin considered it to be demeaning, contradicted access control policy and he considered that it usurped his management discretion and control.

[42] On 13 September 2019, Mr Merriman sent an email to Mr Moore describing the change and the impact to his mental health. Mr Martin assisted Mr Merriman to prepare the email. Mr Moore responded to Mr Merriman refusing his request for a voluntary redundancy.

[43] In an email exchange dated 30 September 2019, Mr Martin expressed his opinion to Mr Moore that the changes were more than enough to signify the due diligence and consultation requirements in the Workplace Determination. Mr Moore was of the view that staff duties had not fundamentally changed. Mr Martin stated Mr Moore’s view “is contradicting all assertions to the contrary.”

[44] Mr Martin’s evidence set out emails between himself, Mr Moore and the Industrial Relations Department at the Department about the above-described issue. On this point Mr Martin gave the below evidence: 4

“By the engagement evidenced throughout these emails I have clearly reported to HR, Industrial relations and management of the untenable changes to roles. HR have not undertaken an independent assessment of any reported matters and did not communicate after Simon Moore concluded the email exchange.

It was clear to me at this point that the department is both accepting that job roles have been outsourced and job roles have been changed, however in the same breath maintaining that “the duties have not fundamentally changed”. All of the IT Service Delivery Management aspects of my role had gone, and no other Executive Level One responsibilities had replaced them. Data Centre Infrastructure Facilities management functions are undertaken by the Canberra and Sydney based EL1 and EL2 cohort. Storage & Facilities Services strategic section management is centralised, project management is centralised, and any minor regional team project resourcing is secured by project managers and central management directly engaging staff without liaising with myself in the EL1 regional role. I lost an APS6 level resource Chris Wehlau from my Brisbane team, and the department will not recruit a replacement or allow Chris Wehlau as the willing experienced previous incumbent to move back into the role permanently, as discussed in paragraph 20.

The original APS job description had one line relating to Infrastructure Support and 19 lines of other support responsibilities. The Job description that was used in 2019 to recruit into has 5 lines of responsibility, all of which relate to Infrastructure. It is unfair to change the job descriptions of some staff and not others when the role has changed equally for all regional ICT staff. Less than 10% of the original role description now remains the responsibility of my team to complete. The role has had all end user technology support operational and management functions outsourced which comprised over 90% of role descriptions. Server room infrastructure support administration functions have expanded from under 10% to over 90% of the role. The Department has gradually and persistently changed the field of expertise and changed the level of technical complexity and the level of decision making in the roles of all regional IT Division staff based outside of Canberra. Technology Support duties were over 90% of the role in 2015, with under 10% being server room Infrastructure support. The department has contracted the end user technology support and service delivery management APS and EL1 position descriptions to Unisys, Optus, and Mobile Assets and has centralised most remaining management functions.” 5

[45] Mr Martin’s evidence is that he stayed in the role as it changed and diminished due to persistent optimism that there would be positive change and that he could help drive that change for the team and the department. He considered that there was no visible path forward and staying in his untenable role where an extensive series of management actions and inaction showed a complete disregard for the probable end of the employment relationship. His evidence is that he needed to maintain the necessary skills and experience should an IT Service Delivery opportunity arise within the Department. He continued to look for opportunities to maintain and increase his skills and experience.

[46] Mr Martin was aware that he could take six months long service leave at half pay to undertake professional development or, subject to approval, he could take unpaid leave of up to 12 months. He actively sought internal and external redeployment opportunities, applying for numerous IT Service Delivery Management positions. He discussed his career plan with Mr Moore and Mr McGlynn, and they expressed their verbal support. Mr Martin required a reference for two or three job applications through the year and Mr Moore and Mr McGlynn were more than happy to oblige. They agreed that he could take leave to develop skills that he could bring back and use in the Department. Mr Martin considered this to be re-assuring and a positive sign. His evidence is that he had always intended on treating any secondment as an educational development opportunity that would also advantage the Department.

[47] Commencing 6 January 2020, Mr Martin obtained a position at Brisbane City Council (BCC) as End User Devices and Technical Services Manager. He considered this a temporary secondment. He stated that despite this being in an endorsed career plan, Mr Moore would not approve unpaid leave to take a secondment in IT Service Delivery Management, stating that they did not require IT Service Delivery Management skills or experience in the Department.

[48] Mr Martin considered that Mr Moore and his manager made it very difficult and told him in an email, “I will not be signing off on this. I am afraid that if you want to take the role with the Brisbane City council you will have to resign from your current role.” 6 Mr Martin found this statement to be incompatible with the contention that only the balance or tasks had changed in his role. He considered that this was a direct statement that the Department has no use for the IT component, which constitutes 90% of his role.

[49] After having the Department’s Professional Standards section approve that there was no conflict of interest, Mr Martin advised his managers that they did not have the right to refuse him taking long service leave, or alternatively, if he took the role for professional development while on long service leave. He stated that long service leave was subsequently approved for the time period he requested. He commenced in the BCC role in January 2021 while on approved long service lave. His salary in the role is $112,859.76 per annum. 7

[50] Mr Martin considered that the Department had demonstrated that it does not support his career progression, professional development, or support consulting on and transitioning role descriptions. He considered that these actions and inactions clearly demonstrated an intent to bring the employment relationship to an end.

[51] Mr Martin stated that as an EL1, and an ICT Service Delivery Manager most of his functions should be at the EL1 work level standard and relate to the technical functions and complexities of the role. He considered that by January 2020 his role had diminished in seniority, responsibility, accountability, status and technical complexity over a protracted period culminating in the loss of staff from his Brisbane team that the Department would not replace.

[52] While Mr Martin was on long service leave the Department allowed Mr Wehlau to return to Brisbane to cover the APS6 infrastructure tasks. Mr Martin noted how when Mr Merriman had been on long service leave, the same request was not met, leaving Mr Martin to have worked alone. Mr Martin says this was unfair and showed an ambivalent attitude and a negative intent towards him. He stated that no one acted in his role when he went on long service leave, and the EL1 level component of his role was so small by this time that it had been absorbed and managed by the Sydney and Canberra based EL1 and EL2 cohort.

[53] Mr Martin gave evidence that the below described further showed intent to bring his employment relationship to an end: 8

“There is an expectation that my EL1 role will perform the APS5 and APS6 WLS operational work in Infrastructure Support administration for over 90% of the time. Management of ICT Service Delivery has been outsourced or centralised. Data Centre Infrastructure Facilities management functions are undertaken by the Canberra and Sydney based EL1 and EL2 cohort. Storage & Facilities Services strategic section management is centralised, project management is centralised and any minor regional team project resourcing is secured by project managers or centralised management directly, engaging staff to fill resource gaps at low level without liaising with me at Executive Level 1 layer. Clay Merriman was promoted to acting APS6 without my involvement as a manager. I was not even granted the dignity of managing my own team member and promoting him while delivering role expectations. These actions further showed intent to bring my employment relationship to an end.”

[54] With respect to Mr Martin’s return from long service leave, he gave the following evidence: 9

“On 13th July 2020 I had a return to work telephone interview with Nathan McGlynn and Brandt Robinson (acting in Simon Moore’s position). During this interview I was advised that when I return to work, my role will be unchanged from when I commenced LSL. The APS6 resource in Brisbane Chris Wehlau would not be allowed to remain in Brisbane and that I would need to re-absorb his Data Centre Infrastructure duties at or below the APS6 work level standard. It was confirmed verbally that there are no longer any substantive Executive Level aspects within the Brisbane based role, that it is at “APS6 level at best” and has extremely limited ICT Technical Support, Service Management and management authority over regional activities remaining. This confirmation effectively removes the Executive Level WLS from my role.

I had hoped that I would be able to return to the Department and continue in a senior EL1 ICT technology manager role with appropriate staff and responsibilities on 14th August 2020. I hoped that positive change would be underway or at least in planning. This is not the case. All reasonable optimism for positive change in the department has now evaporated for me. The department has made no effort to utilise my ICT Service Delivery Management skills and experience or any management skills. The department has shown no interest in keeping my role however does not want to lose a position and so is refusing to make my role and position redundant and this is harsh, unjust and unreasonable. The action of the department has created an environment that I find intolerable and untenable and the “final straw” act is removing my staff and adding their APS level duties to mine.

I was left with no staff at all in Queensland & Northern Territory for 6 months during 2019 and there were no negative operational impacts reported to me or my management during this period. Clearly the quantity of IT Service Delivery and Service Delivery Management work that had previously been undertaken by 2 APS staff in Darwin, 2 Aps staff and 1x EL1 manager in Brisbane was outsourced and whatever limited (nonoutsourced or non-centralised) work that was required to be completed in the entire region was all completed by 1x EL1 manager, myself.

These actions and inactions show an intent to bring the relationship to an end or that has that probable result to a reasonable person. Based on the action and inaction of the department I strongly believe that I had no reasonable choice but to undertake a forced resignation.”

[55] On 13 July 2020, Mr Martin sent the following email:

“Hello Nathan, Brandt, Simon, Thanks for the discussion, and for sending me this information.

It is disappointing that my position has not had anyone acting in it while I have been away. It is disappointing that Chris would be leaving Brisbane if I were to return, just as it was disappointing that while both Chris and Clay were away, there was no-one backfilling in Brisbane. It is even more disappointing that, if I left, the feeling you have is that I would not be replaced at all, even in Canberra and my position would go un-filled.

It is still disappointing that the outsourcing of ICT Service Delivery has not been replaced by any substantive regional Service management responsibility.

I can only conclude that there is no real role in DCIS at the EL work level standard, and no role in Brisbane managing service delivery or project delivery.

I would be performing APS6 level work at best.

I feel that I am being forced to resign. It possibly even amounts to "constructive dismissal" aspects of an unfair dismissal proceeding. If I leave the department of Home Affairs I will be financially disadvantaged Please ask the senior Executive one last time if he will support a Voluntary Redundancy.

Thanks
Regards
Paul Martin”

[56] On 24 July 2020, Mr Moore wrote the following email reply:

“Hi Paul

Firstly, welcome back and apologies for not attending Monday’s meeting but I was ill.

I would like to express my surprise at your email below but appreciate that you have been away for more than 6 months and may have missed a few things. Taking your issues one by one.

1 - It is disappointing that my position has not had anyone acting in it while I have been away. It is disappointing that Chris would be leaving Brisbane if I were to return, just as it was disappointing that while both Chris and Clay were away, there was no-one backfilling in Brisbane.

We take the view that capital city sites generally require two resources to deliver the ICT role. For short periods where work is at a lull, one resource seems to be OK but as we have seen in Adelaide, when work ramps up it is too much for a single resource especially with the on call requirements. Chris was keen to move to Brisbane and we facilitated this absorbing the EL1 function of your role across Canberra and Sydney. It was made clear to Chris at the time that this was NOT a permanent transfer but back filling. It is also worth noting here that there has been a concerted effort here by the SES to reduce the amount of acting.

2 - It is even more disappointing that, if I left, the feeling you have is that I would not be replaced at all, even in Canberra and my position would go un-filled.

The current arrangement seems to be working well but it is temporary. Our expectation has always been that you would return. Based on this, there has not been a definitive decision as to what we will do with your position if you chose to leave.

3 - It is still disappointing that the outsourcing of ICT Service Delivery has not been replaced by any substantive regional Service management responsibility.

This is something that is changing slowly but you are probably not aware because of your absence. There has been, and continues to be, more decentralised infrastructure being deployed in regional data centres/server rooms.

4 - I can only conclude that there is no real role in DCIS at the EL work level standard, and no role in Brisbane managing service delivery or project delivery. I would be performing APS6 level work at best.

Your conclusion is wrong. Your role still has the same description and deliverables as it did when you left.

5 - I feel that I am being forced to resign. It possibly even amounts to "constructive dismissal" aspects of an unfair dismissal proceeding. If I leave the department of Home Affairs I will be financially disadvantaged.

I am very disappointed that you feel this way. We have gone out of our way to facilitate every aspect of your request to pursue outside employment while on long service leave with the Department. At no time have we suggested you should leave. This is your decision, and your decision alone. If you wish to return, your position is waiting and you will not be “financially disadvantaged”.

6 - Please ask the senior Executive one last time if he will support a Voluntary Redundancy. Eligibility for a VR is based on an employee being excess to the Department’s requirements and requires the Department to abolish the employee’s position upon exit. Your position is a required position as we need at least two resources to manage the workloads in Brisbane/Queensland. As such I am unable to support your request.

Simon Moore
Storage and Facilities Section
Technology Operations & Support Branch
Department of Home Affairs”

[57] On 27 July 2020, Mr Martin replied, as below:

“Hello Simon,

Thanks for your response

It is clear that we are at different poles of opinion on this matter.

I could go into extensive detail on this matter; however, it seems that your opinion is final.

You have advised that the role is still essentially the same now that I am due to return from LSL (Long Service Leave) as it was when I commenced LSL in January 2020. As an EL1, and an ICT Service Delivery manager most of my functions should be at the Executive Level 1 work level standard and relate to the technical functions and complexities of the role. By January 2020 my role had diminished in seniority, responsibility, accountability, status and technical complexity due to organisational change over a protracted period culminating in the loss of staff from my Brisbane team that the Department won’t replace.

I commenced in December 2007 as an EL1 Regional IT Service Delivery Manager. I am now engaged to complete infrastructure tasks at the APS work level standard. I do not have management accountability over regional project deliverables or resource allocation. I have not received a new job description since joining the Department in December 2007, despite repeated changes to responsibilities. In October 2018; My APS6 resource Chris Wehlau relocated to Canberra. I was required to absorb his staff management and technical responsibilities. It was clear during 2019 that he would not be replaced despite his desire and requests to relocate back to Brisbane. My APS5 resource went on Long Service Leave for 6 months commencing early 2019, leaving me to absorb all workload in Brisbane. My endorsed career plan is in ICT Service Delivery Management at or above the EL1 work level. To try and maintain and improve my ICT management skills I sought redeployment opportunities at EL1 level and “Acting” EL2 roles without success. I finally succeeded in obtaining a position at Brisbane City Council as End User Devices and Technical Services Manager. I have been in this role while on approved Long Service Leave. While I have been away you were able to facilitate Chris Wehlau’s request to move back to Brisbane to undertake the regional APS responsibilities and you absorbed all my EL1 responsibilities in Canberra or Sydney.

I had hoped that I would be able to return to the Department and continue in a senior EL1 ICT manager role with appropriate staff and responsibilities. This is not the case; You have confirmed that Chris will be required to move back to Canberra. There is no planned or endorsed change to the ICT structure. I will be expected to undertake all assigned Data Centre Infrastructure tasks.

There has been lack of recruitment to replace staff who have left as a result of organisational change commencing in 2015 and continuing over a protracted period to the current status in mid-2020. Staff who were recruited in 2019 are internal staff incumbents recruited against completely new job descriptions. Regional staff have been excluded from the re-deployment discussions that all other ICT Service Provider Groups had. Outsourcing to sub-contractors such as Unisys and Optus expanded over time to include almost all ICT technology support functions in all locations. Out of 5 regional staff who have left since 2015 none had been replaced by end of 2019. The duties of staff who left have been absorbed by the remaining EL1 cohort and their remaining reports or have been outsourced. Ongoing discussions around redeploying the regional staff to other Sections such as Border Systems disappeared and no future change to regional ICT Service Delivery has been proposed. No-one acted in my role while away, and you are unlikely to recruit a replacement EL1 or will recruit a Canberra based position, with a completely different role description.

By changing my role both in the area of technical expertise and by diminishing the work level standard and by failing to recruit replacement staff the Department has changed my role unilaterally. The Department has made my role redundant however is refusing to make my position redundant.

All reasonable optimism for positive change has now evaporated, as you have confirmed that your expectations of the role are unchanged.

I have suffered significant stress, anxiety and diminished self-esteem as a result of this protracted period of my role diminishing and changing.

The action and in-action of the Department has created an environment that I find intolerable and untenable. I am not able to return to work in this environment after my approved long service leave finishes on 14th August 2020.

If there is no change in your position, you will need to immediately commence employee separation processes.

Regards
Paul Martin”

[58] On 3 August 2020, Mr Moore further responded, as below:

“Paul

I appreciate that you are disappointed with my decision not to support your request for a redundancy. I will not go into the details again, as I outlined them in our previous communication, other than to reiterate our expectation has always been that you would return.

In terms of feedback to your latest reply I would say the following.

You are correct, the role you left has not changed. I am not sure as to why you thought it was going to change. I take issue with your claim that you have … not received a new job description since joining the Department in December 2007. When you joined the Department you were employed to perform a specific set of tasks. These tasks are the same (regardless of technology). The only change has been the distribution/balance of work between the listed tasks. The majority of this refocus was a result of the 2014-15 MOG under which the former Customs desktop support was moved under the Immigration Unisys contract. You clearly understood this as in October 2016 you wrote up a more detailed position description for your role and had it approved by the Work Value Assessment section (ADD2018/2197230 and ADD2018/2197227).

While on the subject of job descriptions and “job clarity”, as you know this was an issue raised by many of the former Customs regional ICT delivery staff. Your claim that resources recruited since 2019 have been … recruited against completely new job descriptions … was debunked last year. A comparison of the position descriptions associated with former Customs regional resources and the new descriptions we are now using are the same. The only difference is the level of detail, this being driven by the new HR forms.

On the matter of staff levels, it comes down to demand and budget. As mentioned previously, we have taken the view that two DCIS resources meet work demand of most states. Since you have been on leave we have employed a second resource in Adelaide and a single resource in Tasmania. These recruitment activates were based on demand and availability of budget.

On the specific matter of Chris, I appreciate that Chris may have a desire to move back to Brisbane permanently but he understood that his current “placement” was part of a larger interim solution to facilitate your request for a personal secondment to work at the Brisbane City Council. If we could facilitate this we would but, only based on operational demand. You need to remember that we are here to serve the organisation, not the other way round.

I am both surprised and disappointed with your concluding comments. I was surprised to hear you were experiencing … significant stress, anxiety and diminished self-esteem … and disappointed that you are only raising them now. If, as you have indicated, your decision is to leave the Department then you will have to formally resign from the Department. This is not something I can do for you. If on the other hand you wish to return, I will look forward to seeing you on the 14^th.

Simon Moore
Storage and Facilities Section
Technology Operations & Support Branch
Department of The Department”

[59] Mr Martin completed an Employee Separation Declaration nominating the separation date as 14 August 2020. He ticked the box, “Other” and wrote, “No reasonable choice other than to resign.” He signed the declaration on 6 August 2020.

[60] He stated that he believed that he was forced to resign because of a course of conduct engaged in by the Department that either intended to bring the relationship to an end or that had that probable result. He considered that the Department’s action 'directly and consequentially' resulted in the termination of employment, and had the Department not taken this action, he would have remained employed.

Oral evidence

[61] Mr Martin was extensively cross-examined. Mr Martin was asked if there was an email that he had sent in January 2020 that suggests repudiation of the employment? Mr Martin said no, there was not, but there was a telephone conversation. Later in his oral evidence Mr Martin stated that the discussion was around his desire to take roles in other organisations. The telephone conversation was with Mr Moore and Mr McGlynn. He considered that from that conversation it should have been clear to both of them that he was dissatisfied and that he had reasons to seek a secondment.

[62] He was asked if he considered by January 2020 that his employment had been repudiated? He answered yes, he did, but he didn’t know the term repudiation in January 2020. He stated that he hadn’t read the Fair Work Act (2009), and it wasn’t a term in his vocabulary.

[63] Mr Martin agreed that he had been representing Mr Merriman in his complaints, but he had not made a complaint regarding his own circumstances. He said that he had not wanted to burn his bridges, and he wished to stay in a long-term role. He said that he wanted his role to continue, or for there to be modifications to it. He stated that he was attempting to maintain a positive working relationship. He agreed that he did not suggest to Mr Moore in January 2020 that his role had been changed so much so that it was intolerable.

[64] It was put to Mr Martin that he had helped facilitate changes to the Department and to the role since October 2015, even re-writing his own position description in 2016, and agreeing to assist in the upskill of a vendor. From 2015 considered there was deskilling of role, yet he agreed that he had a good view of the change taking place. He confirmed that he accepted these changes, and he did not complain.

[65] He considered, however, that when significant changes are made to the work he was required to perform, changes should be agreed when they become extreme. Mr Martin likened it to being employed to play AFL as a sportsperson, and then being asked to play netball. He stated that just because somebody is a sportsperson, they can’t be shifted around anywhere.

[66] Where Mr Martin had said changes should have been overt, but they had been covert, it was put to him how could they have been covert if he had been aware of the changes to the work performed since 2015? Mr Martin responded that it became covert because as a manager in his position he was expecting some tasks, but when they didn’t appear, he felt that he’d been led on.

[67] He stated that he took umbrage with the skills that he had that were not required. He suggested that he should be escorting vendors to the various places they need to work for only 1% of his duties, not 100%. I asked Mr Martin why would 1% be suitable; what is a satisfactory amount of time? Mr Martin revised his position that it should be only 5% - 10% of the duties required; occasionally more, occasionally less.

[68] Mr Martin was taken to s.25 of the Public Service Act 1999 (the PS Act) which provides:

“25 Assignment of duties

An Agency Head may from time to time determine the duties of an APS employee in the Agency, and the place or places at which the duties are to be performed.”

[69] It was put to Mr Martin that pursuant to the PS Act, there is a statutory right to alter duties, as required. Examples were provided, where industrial action was taken by officers and senior management was directed to perform particular duties. Mr Martin agreed that had happened, but that it was only for a short time.

[70] Mr Martin stated that while the provision is within the PS Act, other instruments and statutes govern his employment including the Workplace Determination, the National Employment Standards and the Fair Work Act (2009). He stated that a Department head cannot just change a person’s role at any time on a whim.

[71] Mr Martin was asked for how long he had felt deskilled and underutilised? He stated that in 2018 there were options to transition into another area, and from 2018 – 2019 his skills were no longer being used appropriately. He considered it to be a gradual deskilling. He said that he was not happy with the idea he could spend an indeterminate period without utilising skills. It was put to him that throughout 2019 he was doing his job, what had become his job at that time. He conceded that he was at work, but he had not been presented with a change, so he had not given acceptance to the change.

[72] Mr Martin was asked if there was any evidence that the Department intended for him not to return from his secondment to work at BCC? He answered no, there was no evidence. When his long service leave was due to conclude, by July 2020 he considered that his role was, disappointingly, the same as it was in January 2020. Mr Moore confirmed that it hadn’t changed in the time that he had been away.

[73] He stated that it was communicated to him that he’d have to take on the duties of the lower- level employee. It was put to him that Mr McGlynn did not suggest that he would, “at best” be performing the work of an APS6. He responded that Mr McGlynn did say that.

[74] Mr Martin was extensively quizzed as to why he did not make a complaint to HR. He said that he did complain to HR regarding Mr Merriman; he supported Mr Merriman. He stated in evidence that he, “never wrote Dear HR, this is not on, Paul Martin.” He agreed that at no time did he call HR to express his concern at what he considered to have happened to his role.

[75] It was put to him that instead of lodging his resignation he could have made a complaint to HR. With much discussion, he finally conceded that would have been a reasonable proposition. He agreed that he could have emailed a complaint to HR. Curiously, he stated in cross-examination that he didn’t have the number for the HR team. Mr Martin suggested that when HR received his resignation they should have picked up on his comment.

[76] Mr Martin agreed that the option he took was to continue in the role at BCC. He said that he would have preferred to have stayed with the Department. If he had stayed, he stated that he would have been at the EL1 pay standard, but not performing EL1 work. He accepts that sometimes he would needed to have performed work at the AP6 level, but he should not have had to for 52 weeks per annum.

Evidence of Mr Merriman

[77] Mr Merriman made a witness statement in these proceedings. He was not required for cross-exanimation by the Department at the hearing.

[78] Mr Merriman’s witness statement set out the below evidence:

(a) He commenced employment in February 2008 at the Australian Customs Service (ACS) in Brisbane, in the position of Regional IT Field Support Officer for QLD/NT. He was employed as an APS5 within the ACS in Brisbane where Mr Martin was his manager;

(b) During his time in the ACS, there has been a number of changes brought in to the department; in 2014 Australian Customs Service had become Australian Customs & Border Protection Service (ACBPS). A Machinery of Government (MoG) change merging ACBPS and Department of Immigration and Citizenship (DIAC) had started in 2014. This led to a period of ongoing organisational change commencing in early 2015;

(c) Around April or May 2015, Mr Merriman had read documents pertaining to their positions and work to be taken over by Unisys whom at the time were the IT service provider for the Department of Immigration. Mr Merriman questioned the meaning of this document, and what it meant for his area of IT Field Support within the regions if Unisys was to be taking over the work? He had asked if this means a redundancy for their roles? A reply from Ms Wooderson at the time was that this was not an option;

(d) During this transitional phase from 2015 and to now (2020), there has been many changes to the organisational structure. The directors and persons in senior positions had changed, moved or left close to every six months, meaning that responsibility for the organisational change, structure and fit went with them, and the team was being left aside and forgotten;

(e) Their role and what they were initially employed to complete had diminished as the roles themselves have been outsourced and are now completed by external resources, including Unisys and Optus. They are currently not engaged as part of IT incident or problem management and have minimal information technology support functions. Unisys manage the service desk, field services and desktop functions. Unisys assign all incidents and service requests to their teams and exclude technology support. Mr Merriman says this practice has facilitated the outsourcing process to extend without consultation over a protracted period gradually outsourcing all technology support duties from the role in all locations and all operational areas;

(f) By October 2015 the “Regional IT Field Services” roles changed in name to “Technology & Support Officer,” and Ms Wooderson now reported to Mr Dwayne Stokes and then Mr Sean Hugo;

(g) In June or July 2016, Ms Wooderson changes roles and the Technology Support teams now report to Mr David Creagh and Mr Paul Hampton from the Storage and Facilities Section;

(h) In November 2016, Mr Hampton leaves and Mr McGlynn assumes his role as Acting Director;

(i) In June or July 2017, Mr Creagh leaves and Mr Moore assumes his position; and

(j) In October and November 2017, there was talk of redeployment from Storage and Facilities Section to the Australian Border Force. This continued for one year but eventually faded out.

[79] Mr Merriman’s evidence is that this continual change, lack of direction and focus for their team by the Department is taking a toll on his mental health. Over time their positions of Field Support to Technology Support and the related functions have diminished. The changes to their reporting lines are constantly changing where no one has accepted responsibility for the change and what it means.

[80] Mr Merriman stated that he has contacted Mr Moore requesting voluntary redundancy, but Mr Moore has refused to consider a voluntary redundancy for him.

Mr Martin’s submissions

[81] Mr Martin contends per s.386(1)(b) he was forced to resign because of conduct, and a course of conduct, engaged in by the Respondent. With regard to s.386(1)(a) and s.386(1)(b), Mr Martin submitted the Respondent has repudiated his employment contract. He submitted that the conduct of the Respondent showed an intention to no longer be bound by the contract. He submitted that the Respondent brought about a change in his duties which is not within the scope of the express or implied terms of the contract of employment, and therefore the conduct evinced an intention to no longer be bound by those terms. Mr Martin says he did not agree to the change and has been constructively dismissed.

[82] Mr Martin cited the case of Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 T/A Commonwealth Financial Planning 10 where the Full Bench of the Commission says at [13]:

“It is adequate for us to indicate that we accept that when considering whether an employer has repudiated the contract the test is not the employer’s actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.”

[83] Mr Martin submitted the Respondent’s actions and inactions described and evidenced in his materials indicate to a reasonable person that the Respondent evidenced an intention to no longer be bound by Mr Martin’s contract of employment.

[84] In response to the Respondent’s contention that Mr Martin did not do enough to contact Human Resources, Mr Martin says he has set out his contact with HR in his materials and was convinced that nothing could be achieved with further or more direct engagement with HR. He is not aware of what HR would have required in order to be further engaged or why management could not have extended this engagement.

[85] Mr Martin refutes that he had a pre-intention to resign. Mr Martin submitted that he was “optimistically expecting internal IT Service Delivery to be developing.” This also included the expectation that his team would retain the APS6 position in Brisbane with Mr Wehlau as the incumbent and included the belief that there may be suitable redeployment opportunities identified or an equivalent restructure.

[86] Ms McCauley included Mr Martin’s original Notice of Engagement in her evidence. Mr Martin submitted, however, that Ms McCauley was unable to confirm what the specific duties were other than “assigned to duties of Customs Level 4, Customs IT, IT Branch, Regional IT Service Support.”

[87] Mr Martin noted that the Respondent’s witness, Mr Moore, confirmed that a restructure has taken place since his employment was terminated. Mr Martin’s position has been moved to Canberra, and an APS6 Project Administrator is now acting in the position. Mr Martin submitted the duties have been changed further and the position is now responsible just to assign and coordinate infrastructure project tasks. He stated that the incumbent, Ms Madi Brennan, is not from a technical background; she is a substantive APS6 employee performing project administration and coordination tasks in the Storage and Facilities Services Canberra team. He submitted that essentially, she is performing the same role now perhaps with some additional reports.

[88] Mr Martin submitted that all employees who previously reported to him now report to his last remaining peer, Mr Bill Donnelly, based in Melbourne. All regional APS employees now report to Mr Donnelly apart from one person recently recruited in Tasmania who reports to the project team in Canberra. Mr Moore confirmed in evidence that all regional business-as-usual work is managed by Mr Donnelly, and all infrastructure project work is managed through the Canberra based positions.

[89] Mr Martin also submitted that Mr Moore also referenced a higher-level SES restructure however did not provide details of such.

[90] Mr Martin submitted the Respondent has substantiated his foresight that the role could or would change while he was on long service leave. Immediately following termination of employment there was a restructure and Mr Martin’s role has changed and moved from Brisbane to Canberra. He stated that the position has become a project administration role based in Canberra with no business-as-usual IT service delivery management duties or employees in the team.

[91] Mr Martin contends that the Respondent has by way of stating that Mr Martin’s role was unchanged from January 2020 to August 2020, and by way of stating that Mr Martin would be absorbing the duties Mr Wehlau, confirmed that Mr Martin’s contract continues to be repudiated, that the role has ceased to be the role of an EL1 IT Service Delivery Manager as described or implied in Mr Martin’s contract and that the contract will not be restored. Mr Martin would, by the act of returning to work in this role, be seen to have rejected repudiation and would have no further recourse to accept repudiation. Continuing to work would therefore have an immediate effect and the Respondent would then have taken it that Mr Martin accepted the changes to the employment contract.

[92] It was submitted that the Respondent refused to have anyone acting in Mr Martin’s position while on long service leave, however as soon as employment was terminated, moved the position to Canberra and placed an employee in an unrelated role to act in his former position. Mr Martin contends that this action and inaction confirms that his role had been disestablished, and he had no reasonable choice and was forced to resign.

[93] Mr Martin submitted that prior to July 2020, the Respondent had not reached a point of no return and he, while bearing the weight of many repudiatory straws had not felt the weight of his subjective final straw placed on him. Mr Martin had numerous verbal discussions requesting restoration of his senior place in control of regional resource allocation, and with his desire to develop and apply the duties documented in the “Technology Support Engagement” guide endorsed by the Respondent.

[94] Mr Martin submitted that subsequent to July 2020 there was a clear written communication warning the Respondent that he believed the contract was being repudiated and that if this repudiation did not cease, that he would then hold the contract to be repudiated.

[95] The original business-as-usual duties undertaken by Mr Martin and the regional teams were summarised as “Regional IT Service Support” in the offer of engagement letter, and the express and implied duties are detailed in his original job description, in particular:

“Specific tasks include:

• Management of an IT support team within agreed service level parameters;

• Assisting client areas with their use of information and Communications Technology including:

• acquiring IT hardware, software and services from Customs internal and external service providers

• awareness and use of IT standards, procedures or forms;

• resolution of IT service-delivery issues; and

• facilitating contact with the most relevant IT area within Customs.”

[96] The original job description of the Field Services Customs Level 2 (APS5) role has the first listed primary responsibility (which Mr Martin says was undertaken for around 75% of time), as:

“Respond to RFS and Incidents in USD relating to the following:

• Video Conferencing

• Desktop

• H/W Install and moves

• RAS support

• Server support

• Printers and MFDs

• Comms

• H/W Maintenance

• User Training and Awareness”

[97] Mr Martin submitted there are then ten other responsibilities for the remaining 25% of time, with only one of these being exclusively within ICT controlled spaces (being dot-point 6), as below:

“

• After Hours support. You will be required to provide 24x7 On-Call support on an ongoing, rotation basis.

• Co-ordinate 3rd Party on site activities as required

• Manage deliveries of equipment

• Manage logistics for equipment movements

• Provide advice on IT related topics to Projects, clients and business.

• Assist in providing Server room support

• Contribute to the delivery of IT Services

• Contribute to Management of Stock Pools

• Respond to requests for advice and assistance

• Understanding the ITIL framework and how it fits into own and teams work responsibilities” [Applicant’s emphasis]

[98] Mr Martin further referred to the original document steering the outsourcing of IT Service Delivery “Field Services Transition plan” which lists the duties of the Customs IT Field Services team as:

“At a high level, field services functions include:

• Onsite support for customers located in primary office buildings

• Onsite support for customers located operational environments

• Installation of ICT equipment, including desktop computers, monitors and printers

• Mobile Technology, including smartphones, tablets, WIFI hotspots

• Installation of approved non-standard equipment

• Floor-walking

• Installation of equipment as part of major accommodation moves, including “block and stack” activities

• Hardware Asset Management

• Hardware Asset Audits

• Sanitisation & Disposal of Hardware Assets

• Site Maintenance, including regular inspection and replacement of faulty equipment at all sites”

[99] It was submitted that all the abovementioned duties have now been completely outsourced or centralised in all operational areas within the Department.

[100] New position descriptions for the former Customs Field Services team (re-branded Technology Support) were created by Mr Moore mid-2019. The position description lists:

“Specific duties/responsibilities:

• Management of the Department’s ICT controlled spaces and the infrastructure hosted within these areas.

• Capacity management of ICT controlled spaces (physical space requirements and allocations, energy load and cooling capacity).

• Incident and problem management activities associated with ICT infrastructure.

• Create and maintain documentation associated with ICT controlled spaces. This includes regular updates of standards/specification documents, process documentation (including site-specific processes) and as implemented design documents.

• Provide SME advice to support projects and stakeholders needing to leverage ICT controlled spaces.”

[101] Mr Martin submitted that Mr Moore, when questioned confirmed that he was of the opinion that only the balance of duties had changed in Mr Martin’s role or the role of the team. Mr Moore contended that there were no proportional allocations or percentages of working time specified against the original job descriptions. This new position description has five duties, all relating to “ICT Controlled spaces” and “ICT infrastructure.” “ICT Controlled spaces” are generally access controlled server rooms and network closets. Most of the equipment in these spaces is managed and maintained by other teams such as CCTV, server team, network team, Optus, and maintenance sub-contractors.

[102] It was submitted it is important to clarify that most of the sub-tasks listed, that Mr Moore contends come under the previous single task, “assist in providing Server room support,” would not have been undertaken without being engaged by the team responsible for them. The word “assist” provides the context, describing that the team assist or help others, who have the expertise and primary responsibility, to perform the duties.

[103] Mr Martin submitted project work within the “ICT Controlled spaces” is centralised and run by the Canberra-based project team. He had no authority over project activities in regional ICT Controlled spaces. The project team generally travels to all project sites undertaking work generally with Mr McGlynn as the Subject Matter Expert, Mr Brandt Robinson as the Project Manager and various sub-contractors completing their contracted roles. Regional employees, including Mr Martin, were engaged directly by the Project Manager to fill gaps as they appeared (such as escorting sub-contractors).

[104] He contends that it is not reasonable to unilaterally change his duties by assigning infrastructure support and infrastructure management duties as the primary or exclusive duty when these duties are not exclusively or primarily within the job description, skillset, experience or career plan. Mr Martin submitted the role has not been reasonably changed but rather disestablished. The remaining duty or duties are not able to form a reasonable or suitable new role that is within the scope of the express or implied terms of his employment contract.

[105] Mr Martin referenced section 3.1 of the Australian Public Service Commission guidance on the PS Act titled “Recruitment and selection in the APS: The legislative framework”. 11 The guide advises:

“Although this power appears to give an agency head an unfettered right to assign new duties to an ongoing employee or change the place where duties are performed, actions take under the Act must be consistent with the formal framework set out in Part one of this guide.”

[106] It is Mr Martin’s submission that unilateral assignment of the duties previously described to his role and the removal of duties from his role does not comply with the APS values listed in the guide and in the PS Act, and is against the principles under section 3.1.1 “Limitations on assigning different duties to an employee”;

“…asking an employee to perform duties that they cannot be reasonably be expected to perform…”

[107] It was submitted the duties assigned are now exclusive to “ICT Controlled spaces” and “ICT Infrastructure” within “ICT Controlled Spaces.” However, Mr Martin was employed as an IT Service Delivery Manager. The role now has 0% responsibility for delivering all bar one of the original teams’ duties and the remaining “assist in providing Server room support” duty is limited to some business-as-usual work.

[108] Mr Martin said that all project work is managed by the core team based in Canberra with very limited regional management control over resourcing or scheduling. It is unreasonable to exclusively or primarily assign duties of a Data Centre Infrastructure Administrator to an IT Service Delivery Manager or IT Technology Support professional. It is also unreasonable and unfair to assign the majority of APS work level standard duties to Mr Martin as an Executive Level 1 employee.

Remedy

[109] Mr Martin said the Department has not compromised or reversed his position regarding the changes to duties, the outsourcing of roles and the lack of redeployment opportunities and has therefore constrained the options for remedy. He does not believe that any substantive and acceptable role exists for him in Brisbane to be reinstated. However, he stated that should such a role come into existence, he would genuinely accept it.

[110] In the alternative, Mr Martin seeks a financial remedy. He understands that the determining remedy the Commission considers:

• “the remuneration that the person would have received, or would have been likely to receive, if they had not been dismissed”; and

• “any other matter that the Commission considers relevant.”

[111] He asks the Commission to consider the difference in income, and to consider that if he had not been unfairly dismissed but had been fairly dismissed, he would have received a redundancy entitlement as compensation for loss of non-transferable entitlements such as personal leave and for loss of income. As such, the remuneration Mr Martin thinks he would have been likely to receive should be calculated to include either the accrued personal leave or the redundancy entitlement. Including either figure into the (remuneration likely to receive) amount would bring the maximum remedy cap of $76,800 down from the Respondent’s calculation of 34 ¼ weeks base salary pay to well below the 26 weeks salary cap.

[112] Mr Martin referred to the ATO tax ruling TR 2009/2 which states that:

“61. It would generally be expected that a greater amount would be paid on redundancy than voluntary termination. This recognises the purpose of redundancy payments, being primarily to compensate for loss of non-transferable entitlements (for example accrued sick leave and accrued long service leave prior to 10 years service) and the peculiar hardship associated with being made redundant” [Applicant’s emphasis]

[113] Mr Martin says he had over 800 hours of personal (sick) leave accrued (over 21 working weeks). This amounts to over $47,000 worth of salary that has been lost and is increasingly likely to be missed when he becomes unwell.

[114] I have had regard the submissions with respect to remedy in Mr Martin’s first outline of submissions. 12 In closing submissions, Mr Martin set out the below calculations as an example for my consideration:

“Applicant’s Financial Status

The Department Income

Restriction allowance is payable at a flat rate of $41 per 24-hour period. With 2x employees in Brisbane 50% of the year would incur restriction allowance per person. = $7482.50

Annual Salary = $116,582

Salary plus restriction allowance = $124,064.50

Post-separation income

Annual salary $112,859.76

Take-home pay is reduced by $11,204.74

Brisbane City Council has a 5% compulsory personal superannuation contribution which reduces the take-home pay of Mr Martin by a further $5643 pa

Total take-home pay is reduced by $16847.72 pa

Redundancy Entitlements

The Department Workplace Agreement 8.14.

“…an excess Employee whose employment is voluntarily terminated will be entitled to a redundancy payment comprising of:

(a) a sum equal to 2 weeks’ salary for each completed year of continuous service; and

(b) a pro-rata payment for completed months of service since the last completed year of service. 2 weeks’ salary for each completed year of continuous service. A pro-rata payment for completed months of service since the last completed year of service.”

12 years’ and 3 months service = 24.5 weeks redundancy = $54367 not taxed.” [Applicant’s emphasis]

Reply submissions

[115] Mr Martin provided extensive reply written submissions, amounting to 13 pages. It is not necessary to reproduce all of the submissions in this decision, however I have had regard to them.

[116] Mr Martin particularly stated that:

(a) where the Respondent sought to rely, in the alternative on s.386(2)(c);

(b) suggesting if there had been a demotion;

any such demotion would need to be, by necessity, overt, and involve the Respondent eliciting consent.

Respondent’s evidence

Evidence of Mr Simon Moore

[117] Mr Moore made a witness statement and appeared and gave evidence at the hearing. Mr Moore is the Director of Data Centre Service Section, Home Affairs. He is responsible for ICT (Information and Communications Technology) controlled spaces like data centres and server/patch rooms, enterprise data storage and enterprise data protection. He joined the Department of Immigration in March 2011, as Home Affairs was then known.

[118] Mr Moore engaged with Mr Martin in July 2020 and August 2020 per the emails above at [55] – [58].

[119] Mr Moore’s evidence is that Mr Martin’s role was still an IT job despite any changes through the years; he observed Mr Martin in this role. He believes Mr Martin was unhappy about doing less desktop support work at the Department.

[120] In January 2020, Mr Martin requested long service leave so that he could take up a job opportunity at BCC. As Mr Moore understood it, Mr Martin was looking at the Department as job security as he had expressed to him that he was concerned about the probation period at BCC.

[121] Mr Moore believes based on his dealings with Mr Martin that when taking long service leave to go work at BCC, Mr Martin was perhaps not looking to return to the Department. Mr Moore’s evidence is that he informed Mr Martin that his job at the Department would be waiting for him when he finished his long service leave.

[122] Mr Moore referred to an email sent to Mr Wehlau on 10 December 2019. The email concerns Mr Martin being offered the job at BCC and sets out the understanding Mr Moore had at that time, namely that Mr Martin only intended to return to the Department if the job at BCC did not work out for him. The email is reproduced below:

“Hi Chris

As you may be aware, Paul Martin has been offered a job outside of the Department. Paul has requested 6 months of long service leave starting in early January 2019 to facilitate the transition to this role but also as a plan B in case it is not meet his expectations. In other words, he has taken the role but if it doesn’t work out he intends to return to the Department.

In the past you have expressed a strong desire to return to Brisbane. If we were to offer you, what is essentially your old APS6 position in Brisbane, to cover the duration of Paul’s leave would you still be interested if the following conditions applied?

1 – That you are responsible for all costs associated with moving from Canberra to Brisbane.

2 - That the offer is only for 6 months and our expectation is that at the end of this period you will be expected to return to Canberra. At this stage it is our assumption that Paul will return. SFS does not have a need for more than 2 resources in Brisbane. If Paul formally resigns, then we would consider making this a more permanent arrangement.

3 - That you are responsible for all costs associated with returning to Canberra from Brisbane at the end of the 6 months.”

[123] Mr Moore stated the email of 10 December 2019 also makes clear that the Department’s assumption was, that barring a formal resignation, Mr Martin would return to the Department at the end of his long service leave and as such his role awaited him.

[124] It is Mr Moore’s understanding that Mr Martin’s work at BCC is more desktop support based and is more in line with what he was after.

[125] Mr Moore’s evidence was that Mr Martin had never, prior to July 2020, complained to him about “repudiatory” behaviour on the part of the Department. The first time this was mentioned to him was in July 2020.

[126] Mr Moore stated that he has been in position with the Department since 2017, such that if Mr Martin had been disgruntled about the work that he was performing and claiming that it was not what he had signed up for, he expected he would have heard so. He stated that this is the type of thing that the Human Resources department would follow up and something that the union would have raised. He said that he had never heard from Mr Martin or anyone else in the Department that Mr Martin felt the Department had acted in such a way that his contract of employment was no longer valid.

[127] Mr Moore stated that in mid-2019, Mr Martin met with him and Mr McGlynn to discuss career advancement/promotional opportunities. Mr Martin advised that he had been looking for local opportunities, but they were limited in number. It was suggested that Mr Martin could increase his prospects if he was willing to look at locations outside of Brisbane, specifically Canberra. Mr Martin said that he was not keen on this idea and then indicated that he would continue to seek local opportunities. It was at this point that he asked if Mr McGlynn and Mr Moore would be referees for him, to which both of them agreed.

Oral evidence

[128] In cross-examination Mr Moore was asked about the transformation, over time of Mr Martin’s role. He responded that yes, Mr Martin’s role transformed, but some relevant duties increased, some decreased; simply, the balance just altered.

[129] Mr Moore stated that at the time of the MoG, changes were highlighted. He stated that this was not pursued by the CEPU.

[130] Mr Moore was asked what happened to Mr Martin’s role while he performed work at BCC. He responded that while Mr Martin was away his role was put in a holding pattern. As to the EL1 role now, it has been redistributed, and a person in Canberra is acting in the role. Chris is now staying in Queensland, but the position description for Mr Martin’s former role remains the same. Mr Moore stated that Chris and Mr Merriman no longer report to the person in Canberra, with the HR reporting coming from Melbourne.

Ms Shannon McCauley

[131] Ms McCauley made a witness statement and appeared at the hearing. Ms McCauley is employed by the Department in the capacity of a Senior Legal Officer, Employment Law and Litigation, Civil, Commercial and Employment Law Branch of Home Affairs.

[132] Ms McCauley’s evidence provided a true copy of Mr Martin’s employment contract which she obtained from the Department on 21 October 2020.

Respondent’s submissions

[133] The Respondent submitted that the facts are that for the entirety of Mr Martin’s employment, he worked providing Information Technology services to the Respondent. He commenced a period of long service leave on 6 January 2020 to pursue a professional opportunity at BCC as an End User Devices and Technical Services Manager.

[134] Mr Martin was due to return to the Department on 14 August 2020. On 13 July 2020, Mr Martin emailed Mr McGlynn advising of his disappointment that:

(a) his position had not had anyone acting in it whilst he had been away;

(b) that he was disappointed that if he left, the Department would not have replaced his position at all;

(c) that the outsourcing of ICT Service Delivery had not been replaced by any substantive regional service management responsibility; and

(d) the only thing he could conclude was that there was no real role for him at the executive level.

[135] The email sent by Martin stated that he felt he was being forced to resign, and that it possibly amounted to a constructive dismissal. He stated that if he left his employment with the Department, he would be financially disadvantaged. He then requested that Mr McGlynn ‘please ask the senior Executive one last time if he will support a Voluntary Redundancy’

[136] On 24 July 2020, Mr Moore responded to the email. In summary, Mr Moore stated that:

(a) Capital city sites generally require two resources to delivery ICT role;

(b) The Department’s expectation was that Mr Martin would return and therefore there had not been a definitive decision as to what would be done with his position should he choose to leave;

(d) Mr Martin’s role has the same description and deliverables as it did when he went on leave;

(e) The Department had gone out of its way to facilitate every aspect of his request to pursue outside employment whilst on long service leave. At no time had the Department suggested that he should leave; and

(f) Eligibility for voluntary redundancies is based on a position being excess to the Department’s requirements. Mr Martin’s position was required as the Department needed at least two resources to manage the ICT workloads in Brisbane/Queensland. Therefore, Mr Moore could not support Mr Martin’s request to make his position redundant.

[137] On 27 July 2020, Mr Martin responded to Mr Moore’s email. In summary, he responded that:

(a) His role had diminished in seniority, responsibility, accountability, status and technical complexity due to organisational change over a protracted period;

(d) There was no objective evidence showing that the Respondent’s intention was for Mr Martin not to return to his role.

(e) That his contract of employment included the operation of s.25 of the PS Act and that the Respondent enjoys the rights of section 25 of the PS Act.

(f) That the role had, in Mr Martin’s view, been repudiated as of January 2020 and that the role remained repudiated in his view at August 2020.

(g) That from 2015 onwards, Mr Martin actively assisted and “had a good view of” the outsourcing program which he claims led to the repudiation of his contract.

(h) That prior to his resignation of 14 August 2020, he was free to return to his role with the Respondent.

(i) That there was at all times (prior to his resignation) an employment contract in place between himself and the Respondent.

(j) That he accepts that duties within a role may change over time and if they are within the scope of the contract of employment, the employee has an obligation to obey them.

(k) Mr Martin accepted the changes involved with the outsourcing program from 2015 onwards, in order to maintain a good and positive working relationship with his employer.

(l) That he carried out his duties under this contract, despite being unhappy with it, in order to maintain a positive working relationship and to keep his options open.

(m) That he had a good view of the “gradual erosion” changes to his contract going right back to 2015, and that these changes had led to the de-skilling of his job as he saw it.

(n) That as of 17 October 2019, he had accurately written down and described the “deskilling changes” to his workplace.

(o) That he never, prior to July 2020 made a written complaint to his managers at alleging repudiation (or using vernacular words to the same effect as ‘repudiation’).

(p) That he never lodged a complaint in the same manner as Mr Clay Merriman.

(q) That he could have lodged a complaint, such as Mr Clay Merriman had done.

(r) That he did not lodge a complaint in order to preserve a good working relationship with the Respondent.

(s) It would have been reasonable for Mr Martin to complain to HR and this step (though untaken) was open to him.

(t) That he never at any time complained to the Respondent’s HR about his alleged poor treatment.

(u) That he was free to lodge a complaint with HR team instead of resigning and this step was always open to him.

(v) That he has not pleaded a breach of the Respondent’s Workplace Determination (or Enterprise Agreement as Mr Martin referred to it) by lodging an unfair dismissal case.

(w) That he did not need to be a member of the union to lodge a complaint about a breach of an enterprise agreement.

(x) That he was in fact seeking a redundancy payment as an option to resolve the dispute.

(y) That he is earning approximately the same hourly rate of remuneration at Brisbane City Council as he did at the Respondent.

[173] The Respondent denies that Mr Martin was subject to a forced resignation. The Respondent objects to the jurisdictional validity of the application on the grounds that Mr Martin was never dismissed by the Respondent as per s.386(1)(a) (on the Respondent’s initiative) or s.386(1)(b) (a forced resignation) of the Act.

[174] The Respondent noted to satisfy s.386(1)(b) of the Act and establish forced resignation, the Commission must be satisfied that the Respondent took action with the intent to bring the relationship to an end or took action that has that probable result. 28 A forced resignation is one in which an employee has no real choice but to resign due to the actions of the employer.29

[175] It was submitted that that the evidence before the Commission does not reasonably give rise to a view that the Respondent either intended for Mr Martin to resign or acted in such a way as to force Mr Martin to resign. As such, the Respondent said the Commission cannot be satisfied that it was the Respondent’s intention to force Mr Martin out of his employment, or that its behaviour was ever such that it would have had that probable result.

[176] The Respondent submitted Mr Martin did have reasonable choices other than resignation.

[177] Mr Martin could have, at any stage, formally complained to HR and/or his managers about the alleged repudiation and sought the alteration of his duties. He could have returned to his employment in August 2020 and warned the Respondent he was unhappy and seeking change. He has taken neither of these reasonable steps despite them being open to him at all material times.

[178] An employee might be left with no choice but to resign where the employer has repudiated the employment contract by its actions such as changing or diminishing the role the employee was employed for. The Respondent submitted that the evidence does not support any repudiation of the contract by the Respondent.

[179] The Respondent submitted Mr Martin clearly, (and not withstanding his apparent unhappiness) by choosing to remain with the Respondent through the years, and in particular from January – August 2020, accepted any changes to his contract as they occurred and affirmed the contract of employment. As such, repudiation as grounds for a forced resignation are not open to him. If Mr Martin wanted to leave or complain at the times when he felt the contract was being repudiated he could have, but in fact he did neither.

[180] There is no substantive diminution of Mr Martin’s role, or if the Commission is satisfied that there was, such diminution does not amount to a dismissal in line with s.386(2)(c)(i) and (ii).

[181] Mr Martin was not dismissed but rather resigned voluntarily and of his own free will, in order to pursue employment which he preferred. Therefore, constructive dismissal does not apply in this matter.

[182] It was submitted Mr Martin was unhappy in his employment with the Respondent and he sought work elsewhere. Once Mr Martin passed the probation period at Brisbane City Council he was going to resign from the Respondent in any event and this is what he in fact did.

[183] The Respondent submitted the evidence should satisfy the Commission that Mr Martin did not resign because he was forced to but that he resigned because he found a job with the Brisbane City Council which he enjoyed more than his work with the Respondent.

[184] If the Commission is satisfied that pursuing employment at Brisbane City Council was a reason behind Mr Martin’s resignation (and the Respondent says that it was), then any form of constructive dismissal is not open to Mr Martin. In a constructive dismissal (which enjoys a broader construction than that of a forced resignation) the resignation must be in response to the alleged repudiation by the employer. If the employee was going to resign in any event, he or she cannot then claim to have been constructively dismissed. 30

[185] The Respondent submitted that Mr Martin’s claim for unfair dismissal is aimed solely at obtaining a redundancy payment from the Respondent. As at January 2020 Mr Martin wanted job security with the Respondent whilst he found more preferable employment, and having obtained it, Mr Martin now claims a forced resignation based on repudiation in order to try and force a redundancy payment out of the Respondent.

[186] The Respondent says that this inference is supported in the fact that Mr Martin never alleged repudiation until it became clear that no voluntary redundancy payment would be forthcoming. When this became clear, Mr Martin threatened the Respondent with an unfair dismissal action based on alleged constructive dismissal. The history of this matter clearly shows Mr Martin’s concern with obtaining a voluntary redundancy payment. It is apparent that he does not want to lose the opportunity to be paid a redundancy if he could obtain one.

[187] Mr Martin’s F2 confirmed that he was seeking a redundancy payment and his subsequent materials confirm he is now seeking a payment in lieu of this.

[188] The Respondent submitted the evidence clearly shows that Mr Martin’s role was not redundant, and it has been filled at the same level since Mr Martin’s absence.

[189] In summary the Respondent submitted it is not open to the Commission to accept there was any forced resignation by the Respondent in this matter. Mr Martin’s employment was not terminated at its initiative or due to its behaviour, but rather Mr Martin resigned from his employment with the Respondent of his own initiative for reasons of his own.

[190] The Respondent seeks that the application be dismissed pursuant to ss.587(b) and 587(c) of the Act.

Remedy

[191] Mr Martin is not seeking reinstatement as he has found alternative and commensurate employment with the Brisbane City Council.

[192] Any award of compensation in lieu of reinstatement for losses reasonably attributable to the dismissal is necessarily constrained having regard to the factors in s.392(2) of the Act, in particular ss.392(2)(e) and (f).

[193] Mr Martin’s total gross final entitlement upon resignation was $12,789.86.

[194] Mr Martin has been engaged in remunerative work both prior to and since his resignation. The Respondent submitted that his remuneration in his new job is commensurate with the remuneration he received from the Respondent.

[195] The Respondent contends that should the Commission form the view that Mr Martin was unfairly dismissed, due to the circumstances set out above, minimal or no compensation should be awarded.

Consideration

[196] There is no factual dispute that Mr Martin resigned from his employment with the Respondent on 6 August 2020. The question to be determined by the Commission is therefore whether Mr Martin was forced to resign because of the conduct, or a course of conduct, engaged in by the Respondent.

[197] A forced resignation, also referred to or known as constructive dismissal, occurs where an employee has no real choice to resign their employment with an employer. The concept of a constructive dismissal is set out in the case of Mohazab v Dick Smith Electronics (No.2) 31(“Mohazab”) as follows:

“However industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 32

[198] In Mohazab, the Full Bench of the Court also referred to authority in the case of Allison v Bega Valley Council 33 which provides:

“Although the term “constructive dismissal” is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. 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 order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee particularly where the dynamics within a factual situation may change.”

[199] In P. O’Meara v. Stanley Works Pty Ltd, 34 a Full Bench of the Commission said:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. 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.” [citations omitted]

[200] In Doumit v ABB Engineering Construction Pty Ltd, 35 a Full Bench of the Australian Industrial Relations Commission said that the line to distinguish whether conduct leaves an employee with no choice but to resign or results in an employee resigning at their own initiative is a narrow one, but the line must nonetheless be ‘closely drawn and rigorously observed’:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination … Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[201] The onus is on Mr Martin to establish that he did not resign voluntarily, proving that the Respondent forced his resignation. 36 I must find that the Respondent took action with the intent or probable result to bring the employment relationship between Mr Martin and the Respondent to an end.37

[202] Further, I am not to have regard as to what has happened within the Department since Mr Martin’s resignation. Despite Mr Martin’s urging for it to be a relevant consideration, it matters not what has now occurred within the Department. It is a matter for the Respondent to determine how it manages its workforce now that Mr Martin is no longer in it. I accept that Mr Martin’s loss to the Department was a reasonably significant one; he was a talented, well-performing employee with substantial service.

[203] I am left perplexed as to why Mr Martin did not go to the Department’s HR department with his various concerns. Mr Martin was employed by the public service. The public service is bureaucratic in nature. As a public service employee, Mr Martin had greater protections than a person employed in the private sector. Mr Martin was protected by the PS Act, the Regulations, and the Public Service Classification Rules 2000. Mr Martin had significant rights to have a decision reviewed if he felt aggrieved. It appears to me that his matter would have constituted a reviewable decision, however if I am incorrect on that issue, Mr Martin had many avenues available to him for consideration by somebody other than Mr Moore and his manager.

[204] It appears that Mr Martin is alleging that there has been a “reduction in classification” by way of the duties he was asked to perform as a result of the various MoG changes, restructures, and variations to positions. Mr Martin could have gone to HR in the first instance to challenge this in January 2020, when he believed the changes were occurring. Instead, Mr Martin sought his manager’s views only in July 2020, when he was due to return to work, and forcefully requested a redundancy. When this was not granted, Mr Martin resigned his employment.

[205] Mr Martin did not formally tell the Department of his consternation until July 2020. He had not told the Department of his consternation until July 2020 when at that time he raised his concerns with his manager. Where Mr Martin says they “should have known” of his dissatisfaction in January 2020 or earlier because of his desire to take up secondments outside of the public service, or find other departments to work within, I find that unless he expressly informed them, they were not to know. I accept Mr Moore’s evidence that he informed Mr Martin in January 2020 that he had a job to come back to, and there is no reason why he would think otherwise. Mr Moore expected Mr Martin to return at the conclusion of his long service leave.

[206] I observe that Mr Martin had the benefit of payment of long service leave at half pay in his role with the Department, plus a significant salary with BCC, earning an elevated salary for a six-month period. While it was not put to Mr Martin that it might have been a factor in his decision to obtain permission to work elsewhere while on long service leave, how would his managers know that he considered his employment had been repudiated at that time?

[207] Mr Martin’s evidence, where he stated that he had always intended on treating any secondment as an educational development opportunity that would also advantage the Department is important. If one is to take up a secondment opportunity, it is typically for a positive reason, either personally, or collectively for the person and the employer. At no time did Mr Martin inform the Department that he was taking up such an opportunity as an escape to what he considered to be a diminution of his professional duties. He repeated his desire to take up such opportunities but didn’t express any desperation on account of how unbearable he says his role had become with the Department.

[208] Mr Martin’s evidence is the reduction in duties had been gradual; either it was happening from 2015/2016, or more recently in 2018/2019. I have had regard to Mr Martin’s preparation of his own position description in 2016. Where decisions had been made to outsource some functions, and Mr Martin was tasked with providing for a smooth transition, his evidence is that he did so. He was clearly not in any position to oppose such decisions made at many levels greater than him. Over a reasonable number of years, he facilitated whatever was required of him in the performance of his role. He did so without making a complaint about any deskilling of his own role.

[209] Over several years, in the performance of his work, Mr Martin continued to enjoy the benefit of his senior level of employment, did not communicate with the Department about the concerns he had about his own role, and sat by as he says the changes occurred around him. Mr Martin admits he was aware that they were occurring and that he had concerns.

[210] I also note that Mr Martin was able to advocate for Mr Merriman, but on his own evidence, Mr Martin did not want to burn his own bridges with the Respondent. If Mr Martin thought his employment had been repudiated in January 2020 (or some other expression more familiar to him), he could have used the six-month opportunity for HR to be informed of his views, conduct an investigation, and put it to more senior managers other than those whom Mr Martin was concerned were his roadblock to a redundancy. Mr Martin’s evidence that he did not have the phone number for HR is incredulous.

[211] The emails sent to Mr Martin in July 2020 by Mr Moore make it extremely clear that the Department does not agree with what was being put by him, and that his role was considered necessary and unchanged from when he temporarily left in January 2020. Where Mr Moore informed Mr Martin that the Department had gone out of its way to facilitate every request to enjoy a secondment while on long service leave and assuring him that at no time has it been suggested he should leave, Mr Martin disagreed, providing further explanation as to why he considered Mr Moore’s decision was final.

[212] Part of Mr Martin’s consternation was that he had not been appropriately replaced while he was on secondment. Whilst I appreciate that Mr Martin is entitled to have a view as to what was done in his absence, it is clear to me that he was not replaced at the EL1 level, and it was not his decision to make relevant to the resources required while he was away for six months. Many employees in Australia will absent themselves from the workforce for various reasons including long periods of personal leave, parental leave, secondments, and long service leave. It is for management prerogative to determine how organisations are staffed in the substantive employee’s absence.

[213] A question I must ask in determining the application is: Why was it that 6 August 2020, the date that Mr Martin resigned, proved to be the day that Mr Martin determined that his employment was required to end on 14 August 2020? It coincided with his return to the Department. It is clear that if Mr Martin returned and commenced the process of making good his argument before HR and subsequently any higher decision makers, this would have had the potential of taking some weeks or months. I expect that by then, his BCC role would likely have disappeared from him.

[214] Essentially, it is with no disrespect to Mr Martin, he wanted to enjoy the benefit of working for BCC where on his account, his skills and professional abilities were appreciated, and then have the Department concede, on his timeline, that he was entitled to be made redundant. When, unsurprisingly, he was told no, he suggested that he was being forced to resign. When this was resisted by the Department, Mr Martin went ahead anyway and resigned, stating that he was forced to.

[215] For a long-serving public servant, it is telling that Mr Martin did not go to higher decision makers, knowing that his own managers would not be, if the matter was properly pursued, the final decision makers. I consider that Mr Martin was on a timeline; he needed an answer by 14 August 2020.

[216] I do not consider it necessary for the Commission to determine if, pursuant to Mr Martin’s contention, he was sufficiently stripped of his professional expertise. I do not need to make that decision, as I am not satisfied that it is the appropriate test given the relevant proximity of his approach to the Department in July 2029 and his hasty resignation. It was all on Mr Martin’s timeline, when as I have said above, he could have put in train his concerns when he says they first materialised in a formal sense – in January 2020. I am not satisfied that his stated “optimism” assists him in any way.

[217] If Mr Martin was so concerned with his employment being repudiated, he could have returned to his role in August 2020, stated his objection – noting that he was going to work on a without prejudice basis until it was determined by those with relevant authority to determine his issue – and then, if any review did not fall in his favour, argue repudiation at that time. Unless the BCC role was held open for him while all of this was occurring, Mr Martin would have lost the one bird he held in the hand. It seems to me that he was playing for the two birds in the bush: having a well-paying and professionally rewarding career at BCC, and hopefully a redundancy payment.

[218] He chose not to go down the harder, but not inappropriate, route of returning to perform the work required of him with the Department and seeking the decision of more senior managers as to whether he was entitled to a redundancy payment.

[219] I accept that Mr Martin was unhappy by July 2020. I do not accept that by July 2020, or by 6 August 2020, Mr Martin was forced to do anything. I do not accept that there was some action on the part of the Respondent which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.

[220] I have objectively analysed the Respondent’s conduct and I am not satisfied that its conduct was of such a nature that resignation was the probable result, or that Mr Martin had no effective or real choice but to resign. The Respondent acted promptly to deal with Mr Martin’s concerns, and while it did not agree with him, and informed him so, there were many avenues Mr Martin could have taken when he was informed his proposal was not agreed to.

[221] I am not satisfied, per Mr Martin’s contention that he could or should have been contacted by HR following his resignation to be asked further questions considering what he noted on the resignation letter. I do not consider that there was any such obligation owed by the Department in the circumstances.

Conclusion

[222] For the reasons set out above I have determined that the resignation of Mr Martin was not caused by conduct, or a course of conduct, on the part of the Respondent. I find that Mr Martin was not a person dismissed from employment and the jurisdictional objection raised by the Respondent is upheld.

[223] I must dismiss the application for lack of jurisdiction. An Order [PR728270] will be issued together with this decision.

COMMISSIONER

Appearances:

Martin P, Mr Martin.
Spence C, for the Respondent.

Hearing details:

6 November 2020, by telephone.

Final written submissions:

Final written submissions of Mr Martin, 11 November 2020.
Final written submissions of the Respondent, 17 November 2020.
Final written submissions of Mr Martin in Reply, 24 November 2020.

Printed by authority of the Commonwealth Government Printer

1 Mr Paul Martin’s written submissions, Digital Court Book, page 190.

2 Witness statement of Paul Martin dated 26 September 2020, [16].

3 Ibid at [24].

4 Ibid at [38] – [40].

5 Ibid at [38-40].

6 Ibid at [42], Attachment Z0.

7 Mr Paul Martin’s written submissions, Digital Court Book, page 190.

8 Witness statement of Paul Martin dated 26 September 2020, [44].

9 Ibid [45] – [48].

10 [2011] FWAFB 4038.

11 <Recruitment and selection in the APS: The legislative framework | Australian Public Service Commission (apsc.gov.au)>, as of 16 March 2021.

12 Mr Paul Martin’s written submissions, [14] –[25].

13 Doumit v ABB Engineering Construction Pty Ltd, Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

14 Ngo v Link Printing Pty Ltd, Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Minato v Palmer Corporation Ltd [1995] IRCA 315 (30 June 1995), [(1995) 63 IR 357 at pp. 361‒362]; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

15 Sherman v Sunrise Health Service Aboriginal Corporation[2016] FWC 8903.

16 Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman [2017] FWCFB 3941.

17 9 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.

18 Woods v W M Car Services (Peterborough) Ltd [1982] ICR 693.

19 Broadlex Services Pty Ltd v United Workers' Union [2020] FCA 867.

20 Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSCA 181.

21 Actrol Parts Pty Ltd v Coppi (No 2) [2015] VSC 694.

22 Martin v Novita Children’s Services [2018] FWC 7706.

23 Automatic Fire Sprinklers V Watson (1946) 72 CLR 435 at 450-453, 461-463, 465 -467.

24 Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 427 – 428.

25 Visscher v Guidice (2009) 239 CLR 361 at 53 – 55.

26 Spencer v Dowling (1997) 2 VR 127 at 160.

27 O’Conner v The Argus and Australian Ltd [1957] VR 374: 6.9, 16.16.

28 O'Meara v Stanley Works Pty Ltd, PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006), at [23] [(2006) 58 AILR 100].

29 Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), (1995) 62 IR 200, page 206.

30 Ardelle v Spastic Society of Victoria Ltd [2000] FCA (20 October 2000, Marshall J at [27].

31 Mohazab v Dick Smith Electronics Pty Ltd (No.2), (1995) Industrial Relations Court of Australia, 62IR 200.

32 Ibid page 207.

33 Allison v Bega Valley Council, (1995) Full Commission of the Industrial Relations Commission of NSW, 63IR 68.

34 (2006) 58 AILR 100, [23].

35 Print N6999 (9 December 1996).

36 Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at para. 30,

[(2009) 185 IR 359].

37 O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at para. 23, [(2006) 58 AILR 100].

Mr Paul Martin v Department of Home Affairs T/A Australian Border Force

[2021] FWC 1765

31 MARCH 2021

DECISION