Mr Santosh Gupta v Koukourou Pty Ltd T/A FMG Engineering

[2012] FWA 8755

[2012] FWA 8755

FAIR WORK AUSTRALIA

DECISION

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

Mr Santosh Gupta
v
Koukourou Pty Ltd T/A FMG Engineering
(U2012/10609)

COMMISSIONER HAMPTON ADELAIDE, 9 NOVEMBER 2012

Termination of employment - resignation - whether valid - whether effectively withdrawn - whether dismissal at the initiative of the employer - whether resignation forced - whether decision of employer to accept and pay out notice became a dismissal - dismissal not found - application dismissed.

BACKGROUND AND CASE OUTLINE

[1] Mr Santosh Gupta (the applicant) has made application to Fair Work Australia pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to an alleged unfair dismissal. His employer until June 2012 was Koukourou Pty Ltd T/A FMG Engineering (the respondent or FMG).

[2] The matter has not been resolved through the Fair Work Australia conciliation process and I have now heard all elements of the application.

[3] Mr Gupta worked for the respondent as a Senior Civil Engineer in its relatively large engineering consultancy operation. He suffers from narcolepsy, which is a neurological sleep disorder. There is a dispute about the impact of the condition upon Mr Gupta and the extent of awareness of the condition and symptoms within FMG.

[4] On 1 June 2012, Mr Gupta sent an email to the respondent’s Chief Operating Officer indicating amongst other things, that “I resign from the employment of FMG and will discuss the matter on Monday”.

[5] Mr Gupta’s email was discussed with the employer on Monday 4 June 2012. Although there is a dispute about what took place, it is common ground that the applicant did not indicate the withdrawal of the resignation at that time. There was however discussion of the need to confirm the proposed cessation date in writing.

[6] On Wednesday 6 June, the applicant purported to withdraw the resignation through an email.

[7] On 6 or 7 June 2012, management advised Mr Gupta, amongst other matters, that it was not prepared to accept the withdrawal of the resignation and that it had already accepted the resignation.

[8] On Wednesday 13 June 2012, FMG in effect confirmed the earlier advice through a further email and on Thursday 14 June purported to inform him that he was not required to serve out his notice and would be paid four weeks in lieu of that notice period.

[9] The applicant’s last day of work with FMG was 14 June 2012.

[10] The applicant claims that his resignation was not valid due in part to his medical condition and the absence of a specified notice period. Further, that in any event, it was withdrawn prior to being accepted by FMG. The decision to refuse to allow the withdrawal and insist upon the alleged resignation was not only unfair, but, it was contended, represented a dismissal within the meaning of the Act. The applicant sought reinstatement.

[11] The respondent contends that the applicant resigned from his employment in writing via the email and that this was effective. FMG also contends that there were no special circumstances which would mean that the resignation should not operate and that the purported withdrawal of the resignation by Mr Gupta was not accepted and was ineffective.

[12] FMG further contends that there was no dismissal within the meaning of the Act and the application itself should be dismissed. The respondent also rejected any notion that if there was an unfair dismissal, any significant remedy should be considered in this matter.

[13] There are a series of factual disputes concerning the applicant’s medical condition and the degree to which it impacted upon his work and apparent resignation, and the conduct of the parties in discussions taking place in the context of the resignation email. These are fundamental to their respective cases.

THE EVIDENCE BEFORE FAIR WORK AUSTRALIA

[14] The applicant gave evidence and relied upon a series of written communications and other documents. 1 In assessing his evidence I have taken into account his apparent medical condition and the fact that English is not his first language. Having done so, I have significant reservations about Mr Gupta’s evidence. It was inconsistent at times, selectively relied upon his medical condition where it appeared to suit him, and was not generally convincing on the key aspects. This does not lead me to completely discount his evidence, but I treat it with caution.

[15] FMG led evidence from the following personnel:

• Mr Matthew Loftes - Chief Operating Officer;



• Mr Jeremy Clapp - Former Civil Manager;



• Mr Sean Gibbs - Housing Operations Manager; and



• Ms Kylie Raine - Civil Coordinator.

[16] The recall of the detail of some of the events by the respondent’s witnesses was not detailed however subject to that caveat, I generally found their evidence to be reliable. In particular, I found the evidence of Mr Gibbs to be honest, straightforward and convincing. Mr Loftes made reasonable concessions and was generally convincing. In terms of the direct factual disputes about the discussions with the applicant in early June 2012, I generally prefer the evidence of Mr Loftes.

[17] The evidence of Mr Clapp and Ms Raine was in my view genuine; however it did not go to the heart of this matter.

[18] There is some material before the Tribunal regarding the applicant’s current medical condition and the consequences and treatment of narcolepsy. No medical evidence was called to support that material. In the circumstances I have accepted that material on face value, however I am unable to place significant weight upon it in terms of the specific symptoms that are or were experienced by Mr Gupta. This is particularly so given that there was no obvious pattern of conduct or behaviour in the workplace that would be consistent with the more extreme symptoms described by Mr Gupta in his evidence.

THE GENERAL FACTS OF THE MATTER

[19] It is not necessary to expressly deal with all of the facts contended in this matter. The following establishes the broad context of the matter against which I will deal with the particular facts and issues ultimately critical to the determination of the application.

[20] Mr Gupta is a qualified civil engineer having obtained a relevant degree and work experience in India and has sound technical skills in his profession. He is an intelligent man who, whilst English is not his first language, has relatively sound communication skills both in writing and verbally.

[21] Mr Gupta was employed by the respondent in May 2007 and progressed to the position of Senior Civil Engineer within its engineering consultancy operation.

[22] Mr Gupta suffers from narcolepsy, which is a neurological sleep disorder or dyssomnia, characterised by excessive sleepiness and sleep attacks at inappropriate times. It is difficult to make any definitive conclusions about its actual impact upon Mr Gupta based upon the evidence before Fair Work Australia. However, I accept that this had led the applicant to feel very tired at times, particularly near to the end of a working day. I also accept that the condition has led, or contributed to, red eyes and this aspect of his condition was well known in the workplace. Indeed, this led to a discussion with Mr Gupta’s manager about whether working from home with a laptop could reduce the apparent irritation to his eyes.

[23] I also find that the applicant now suffers from depression. It is not clear whether this was diagnosed prior to his dismissal but it is a reasonable inference that his narcolepsy has contributed to feelings of unhappiness about his circumstances particularly in the context of providing for his family.

[24] None of the medical conditions were such that the applicant could not apparently undertake his work and there is no reliable evidence that his condition led to unintended communications within the workplace or to periods of time when Mr Gupta was unaware of his actions or events more generally (described by Mr Gupta as mental automation) where he was not aware of his conduct. In fact, I do not accept that any such symptoms were evident in the workplace.

[25] FMG was aware that Mr Gupta had a sleeping disorder and some within management were aware that he took prescribed medication for a condition. This included discussions about a medical condition potentially leading to his inability to attend work on time and complete his time records. However, the respondent was not informed about the extent of the condition or the degree to which its more severe symptoms might impact upon his work. 2 Indeed, it is a reasonable inference from the evidence that Mr Gupta was advised to be careful about the degree to which his employer was advised about potential symptoms.3

[26] Mr Gupta’s employment with FMG was largely uneventful. When he sought to resign his employment in 2008 to take up another position, FMG matched the offer and promoted him to the position of Senior Civil Engineer. I note that the resignation at that point was provided in writing and stated the four week notice period required by his employment contract.

[27] In 2011, Mr Gupta travelled to Victoria to assist with inspections of damaged properties. I accept that Mr Gupta found the extent of travel difficult given his condition. It is not possible for me to determine whether this involved reporting a near miss on a railway crossing as indicated by Mr Gupta given the state of the evidence. 4 Mr Gupta did make a reimbursement claim for items including his prescription. When challenged about the claim by Mr Gibbs, and then offered a part payment due to the limited time away (said to be 48 hours on that occasion), Mr Gupta in effect withdrew the claim on that item. Mr Gupta had advised that he needed the prescription for a medical condition however there was no detailed discussion about the nature of the medication or the applicant’s medical condition at that time.

[28] As part of the above discussion, Mr Gupta advised Mr Gibbs of his frustration and that he was thinking of resigning. This was not considered by Mr Gibbs to be real threat but rather a product of his emotional state at that time. It was however reported at some stage to others in management.

[29] In late 2011, Mr Gupta was spoken to about the need to be proactive in seeking work given a reduction in work coming into the business. This was undertaken as part of a personal development review and the applicant responded positively.

[30] In late May 2012, a client of FMG made a complaint about the manner in which Mr Gupta had been dealing with a matter. This complaint was responded to by the applicant without consulting the relevant manager. In subsequent communications with management, Mr Gupta stated in effect that he was not the right person to be dealing with clients and that he was prepared to resign as a result.

[31] Very early on 31 May 2012, Mr Gupta sent an email to all employees of FMG regarding his concerns about computer “malware”. Mr Gupta later that morning sent an apology for sending the email at that time of day (just after midnight).

[32] Mr Loftes was concerned about the email being sent to all employees on the issue by the applicant given that it did not relate to his role at FMG. This was communicated to the respondent’s IT manager but was not acted upon prior to the next email.

[33] On Friday 1 June 2012 at 6.30pm, Mr Gupta again sent an email to all of the respondent’s employees throughout its Australian operations advising of an online shopping fraud experience. Almost immediately, Mr Loftes sent an email to Mr Gupta indicating that it was not appropriate for him to be sending this type of communication to all staff. The email was copied into Mr Gupta’s manager, the IT manager and one other person. The email from Mr Loftes was expressed in moderate terms and was in my view not inappropriate.

[34] Mr Gupta responded to Mr Loftes by email at 7.24pm that night in the following terms:

“...

Hi Matthew

I am sorry that I sent this email but I thought that people will be aware of the frauds. Nonetheless, I misused the company infrastructure which I shouldn’t have.

I feel that the first requirement of working as a team is that to have better understanding among team members. It has been in the past that my communication was not found appropriate and as such I feel that there is something which is not working properly. Therefore, I feel that I am not fit for the company environment as communications could not be avoided.

Hence, I resign from the employment of FMG and will discuss the matter on Monday.”

[35] Although Mr Gupta contended in his evidence that the email was sent in a state of “mental automation” and he was not aware of it until the next day, I do not accept that evidence. I am also not prepared to accept the contention that he intended to withdraw it as soon as possible given the lack of action that actually followed. I do accept that he was concerned the email from Mr Loftes was sent to some in management as well as to himself and that he considered the subject matter of the original email to be appropriate for communication to the staff as a private warning. The applicant’s resignation email was an overreaction but not such as to indicate that it was anything other than an intended and deliberate communication.

[36] After the normal 9.00am weekly meeting, Mr Gupta initially sought to discuss his resignation with Mr Gibbs at the start of the working day on 4 June 2012. Mr Gibbs merely referred the applicant to Mr Loftes. Mr Gupta did not inform Mr Gibbs at that time that he had concerns with the resignation or that he was seeking to withdraw it.

[37] Mr Gupta’s email was discussed within the employer’s management team on the morning of Monday 4 June 2012 and it was decided that the resignation would be accepted particularly in light of the recent “threats” to resign. Mr Gibbs was immediately tasked with the job of finding a replacement given that they had only recently advertised for some civil engineering positions that could provide suitable candidates.

[38] Mr Gupta and Mr Loftes met at around 4.30pm on Monday 4 June. There is a dispute about what took place at that meeting and the recollections of both men are incomplete to some degree. I find that Mr Loftes indicated to the effect that he considered the sending of the email to all staff was serious; that FMG would have considered dismissal if not for the resignation; and FMG had accepted the resignation. Mr Loftes also indicated that Mr Gupta should formalise the proposed final date of his employment in writing (given the absence of a departure date in the email). In particular, Mr Loftes sought confirmation as to whether Mr Gupta intended to work out his four weeks notice. The applicant did not indicate the withdrawal of the resignation at that time or at any time during the meeting.

[39] Mr Loftes also sought details of what Mr Gupta was intending to do after his employment with FMG concluded. Mr Gupta advised him that he would not be seeking to look for another job because he had a medical condition. That notion was not explored in any detail by Mr Loftes.

[40] Objectively, as a result of the meeting on 4 June 2012, Mr Loftes would have understood that the resignation was intended and had been confirmed by Mr Gupta.

[41] On Wednesday 6 June, the applicant purported to withdraw the resignation through an email which read as follows:

“...

Hi Matthew

I refer our discussion on 4 June 2012 regarding my resignation based on my medical condition whereby I expressed that I did not intend to work afterwards. I further reviewed my decision of resignation as I suffer from excessive sleepiness leading to insomnia at night. I believe that I should speak to my doctor first and take his opinion and effect of sitting idle on my medical condition if that will help or adversely affect it. I take an example of last night where I could not sleep throughout night and came 6.00AM in the office.

Therefore, I withdraw my resignation at this instance and advise you once I see my doctor scheduled to happen in October. Please advise if you are comfortable with me withdrawing my resignation.

My sincere apologies for the email I sent to all staff on Friday regarding online shopping fraud and subsequent email to you regarding my resignation.”

[42] I will return to the consequences of these events in due course however it is appropriate to record that I find on the balance of probabilities that Mr Gupta changed his mind about the resignation at some stage after the meeting on 4 June 2012. I note also that the thrust of the email of 6 June 2012 is also consistent with that scenario.

[43] On 6 or 7 June 2012, Mr Loftes spoke again to Mr Gupta and advised that FMG was not prepared to accept the withdrawal of the resignation and had already accepted the resignation. Further, Mr Loftes advised that a process of recruiting a replacement had already commenced. Mr Gupta complained about that decision, its impact upon him and the suggestion that FMG were already advertising for civil engineers. However, Mr Loftes confirmed his view that the resignation was the choice of the applicant, had been accepted and the decision was final.

[44] Mr Gupta continued to work with FMG and did not provide a departure date as expected by Mr Loftes.

[45] On Wednesday 13 June 2012, FMG through Mr Loftes sent an email in the following terms:

“Dear Santosh

I hereby accept your resignation from FMG Engineering as communicated to me by email on Friday 1st June 2012.

As discussed last week, I cannot accept your subsequent withdrawal of this resignation.

We will shortly discuss with you, the planned date for your last day of employment with us.”

[46] Mr Gupta almost immediately replied by email in the following terms:

“ ...

Hi Matthew

I understand you are not prepared to accept my withdrawal but isn’t it unfair to accept the resignation without any notice period from my end. You also required me to tender my resignation formally to accept it but I did not.

Therefore, I request you to reconsider your decision as FMG require civil engineers anyway.”

[47] On 14 June, Mr Loftes, Mr Gibbs and another met with Mr Gupta and advised him that it had been determined that his last working day was to be 14 June 2012 and that he would not be required to work out his notice period. Mr Gupta was given a letter which read relevantly as follows:

“...

Dear Santosh

Further to your resignation, we have now determined that your last day with us is today. Details of your termination payment are shown below and include 4 weeks paid notice from today which we will not require to you work.

...

Please not that on final calculation of your vehicle costs, after adjustment for business use, there is a shortfall between your contribution by way of salary sacrifice and the final year to date vehicle running cost to the value of $909.00. However, in the interests of good faith we agree to waive this shortfall (in your favour).

Santosh, thank you for your contribution to the company and we wish you well for the future.

...”

[48] Mr Gupta’s employment concluded on 14 June and he was paid in accordance with the above letter.

[49] FMG recruited an engineer to replace Mr Gupta and this employee commenced on 27 June 2012.

[50] The applicant’s employment contract provided as follows with respect to termination:

“6. Notice Period

Termination of employment (following your initial probationary period of six months) can be initiated by either party by providing four week’s notice in writing.”

WAS THE APPLICANT DISMISSED WITHIN THE MEANING OF THE ACT?

[51] Section 386 of the Act provides as follows:

“386 Meaning of dismissed

(1) A person has been dismissed if:

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

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

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[52] The applicant does not contend that his initial resignation was forced by FMG within the meaning of s.386(1)(b) of the Act. In any event, there is no basis in the evidence to support that notion.

[53] On that basis, it is necessary to consider whether there was a dismissal at the initiative of the employer as contemplated by s.386(1)(a) of the Act. This in turn requires consideration as to whether the purported resignation was effective and itself brought about the conclusion of the employment. Further, I need to consider the effect of the purported withdrawal of the resignation and the action of the employer to establish a final date and to pay out the notice period.

[54] Mr Wright, who appeared with permission for Mr Gupta contended that although the applicant tendered a resignation, it was not effective for a number of reasons. These included:

• The notice was not in accordance with the applicant’s contract of employment in that it was not in writing and did not give any notice period;



• The unilateral effect of a resignation only operates where given in accordance with the contract; 5

• The Tribunal should not find that imperfect (resignation) notice was sufficient to bring about the cessation of the employment relationship given the serious consequences for employees;

• The respondent sought confirmation of the resignation in writing and this indicated in effect, that the resignation was uncertain at that point;

• The resignation was subject to a meeting on the following Monday; and

• There were special circumstances whereby it was not reasonable for FMG to assume a resignation and accept it. 6 These circumstances are associated with the applicant’s medical condition and the knowledge that the respondent had, or should have had, about its impact upon the apparent resignation.

[55] Mr Wright further contended that the applicant had withdrawn the resignation prior to its acceptance by FMG. In that context, he argued that the decision to set a final date and to pay out in lieu of notice was in reality a termination at the initiative of the employer.

[56] Mr Colgrave, who appeared with permission for FMG, contended that the email resignation by Mr Gupta was effective and had operated to conclude the relationship. This was advanced on the following basis:

• Mr Gupta intended to resign and did so via the email on 1 June 2012;



• There was no evidence to support the contention that special circumstances existed in this case associated with either the applicant’s medical condition or the “heat of the moment”; 7



• In any event, the applicant did not seek to withdraw the resignation until some five days after it had been given and this was insufficient to meet the requirements of any exception; 8

• The resignation was not contingent upon the meeting on the following Monday;

• The resignation as given operated automatically to conclude the employment; 9

• The resignation once given, cannot be unilaterally withdrawn 10 and FMG did not consent to that occurring;

• The absence of a stated conclusion date from the applicant as part of the resignation did not mean that the resignation was ineffective and the Tribunal needed to take a realistic approach to these matters given the real world conduct of parties, including by employers when terminating employees; and

• In the alternative, if the notice was not effective, the applicant’s conduct in resigning without providing the notice period was a repudiation of the contract which had been accepted by FMG. 11

[57] Mr Colgrave further argued that once the resignation was effective, it could not be withdrawn other than by agreement with the employer and this did not occur. Given the above, FMG argued that it was not obliged to provide the four weeks pay in lieu of the notice required by the applicant and this conduct did not lead to a termination at its initiative.

Was there an effective resignation by the applicant?

[58] To be effective, a resignation must be clear and unambiguous. Account needs to be taken of the context in which the statements are made and the ensuing circumstances. In Kwik-Fit (GB) Ltd v Lineham 12 Wood J expressed this view in the following terms:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances'. Where 'special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.” 13

[59] I have also considered the decision of Walker JR in Middleton v Valvoline (Australia) Pty Limited (IRCA unreported NI 908 of 1994) as cited by Mr Wright where the Court summarised much of the case law and found that there may be, in the case of a resignation, special circumstances that may make it unreasonable for an employer to “assume” a resignation. At 5, the Judicial Registrar said:-

"The requirements in the case of a resignation by an employee are very similar to those for a dismissal. It is important for employers to know whether an employee has resigned, since if they treat the employee as having resigned when that is not in fact the case, they may be held to have dismissed the employee. If the employee's resignation is prompted by a repudiatory act or breach of contract by the employer, that may be treated as a constructive dismissal by the employer. As with dismissal, similar questions have arisen as to what amounts to a resignation, particularly where there has been a row between the employer and the employee and it is not clear from the language used whether the employee was in fact intending to resign. If the employee's words are not ambiguous (eg. 'I am resigning’) or, when construed, have a clear meaning, he or she will be treated as having resigned, irrespective of whether they were intended to bear that meaning, unless the words of resignation were uttered in the heat of the moment or as a result of pressure exerted by the employer. In Sovereign House Security Services Ltd. v. Savage [1989] I.R.L.R. 115 at 116, May L.J. said-

‘... Generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. ... However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee himself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear at first sight.’”

[60] In Gunnedah Shire Council v Grout 14 (Gunnedah) the Full Court of the Industrial Relations Court of Australia was dealing with a purported letter of resignation that was provided by an employee who was suffering from significant workplace stress that had led to depression and was, subjectively, intending to seek superannuation benefits. The letter of resignation did not refer to that intention but indicated that he would take the attached medical advice immediately.15 The attached medical advice referred to a recommendation that Mr Grout take early retirement effective immediately. After the provision of that letter, the management of the Council confirmed with Mr Grout that he intended to leave his employment immediately.

[61] After discussing the relevant authorities, the Full Court in Gunnedah concluded as follows:

“In our view, the council was entitled to deal with Mr Grout's letter on the basis that, although he was stressed, Mr Grout knew what he was doing and wanted to resign. It was entitled to accept his letter of resignation, either on the basis that the notice was inadequate but it would waive its right to insist on proper notice, or on the basis that the inadequate notice constituted a repudiation of his contract by Mr Grout but it would accept the repudiation.

On either basis, the employment was not terminated at the initiative of the council. The initiative was taken by Mr Grout. The council merely accepted his decision. It follows that Mr Grout is not entitled to a remedy for termination of his employment under s.170EA(1) or damages for wrongful dismissal at common law.”

[62] The decision in Gunnedah confirms that even where the notice of resignation is not given in accordance with the contract, it was possible for the employer party to treat and accept such notice as being effective. Further, the Full Court in that decision confirmed that an assessment of an employee’s mental state and related circumstances may be relevant to the consideration of whether the resignation was objectively, a voluntary and conscious decision.

[63] It is clear that the email of 1 June 2012 from Mr Gupta was intended to be a resignation. I accept that his medical condition may have influenced his decision. However, I do not accept that there is a basis in this case for the application of “special circumstances” as contemplated by the relevant authorities, or any basis whereby the stated intention should not have been accepted at face value.

[64] The reference to further discussions on the following Monday could have been subjectively intended to provide an opportunity to withdraw or for the employer to talk him out of that intention. In any event, when considered objectively, the resignation was not conditional upon that further discussion but rather the details of when it would be effective were to be discussed at that time.

[65] There was ample opportunity for Mr Gupta to have communicated a different intention, including any intention to withdraw the resignation, to FMG at any stage immediately following the Friday night and he did not do so, including during the course of the discussions on Monday 4 June. Indeed, the outcome of the meeting with Mr Loftes on that day was that Mr Gupta was intending to leave and was not planning further work due to his medical condition, that the resignation had been accepted, and that he was requested to confirm his intended departure date in writing.

[66] On that basis, the resignation provided by Mr Gupta was a valid action and accepted as such by FMG on Monday 4 June 2012.

Did the respondent dismiss the applicant by refusing to accept the withdrawal of the resignation and/or paying out the notice period?

[67] The Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) 16 summarised the principles applying in different but related circumstances as follows:

“The effect of the giving of notice is summarised by Gray J in the Federal Court in Birrell v Australian National Airlines Commission :"The giving of notice of termination of a contract, in accordance with the terms of that contract, is a unilateral right. Its exercise does not depend in any way on the acceptance or rejection of the notice by the other party to the contract. The giving of such a notice operates to determine the contract by effluxion of the period of notice." McCarry "Termination of Employment Contracts by Notice" sums up his view of the situation as:"A valid notice of termination, once received, will operate to end the contract of employment when the period of notice expires or is due to expire, unless in the meantime the contract is ended by some other independent cause. The employer/employee relationship will end with the contract, if it has not ended earlier, but aspects of the contract can still be enforced thereafter." We assume for this purpose, and it was not suggested otherwise, that the action taken by Mr Doumit was action he could take under his contract. There is no need to consider matters such as inadequate notice or conditional termination as was the case in Gunnedah Shire Council v Grout and other authorities such as Automatic Fire Sprinklers Pty Ltd v Watson. There is no suggestion in this case that the employee gave notice which was inadequate or inappropriate. This meant that there was no option for the employer to decide whether or not to accept the notice. The employee could not withdraw the notice unilaterally [see discussion thereon in Birrell at pages 109 - 110]. The only thing required was the effluxion of time. The employer took no issue with the notice and acted, or at least intended to act, in accord with the contract by giving pay in lieu of notice. It proffered the payment in lieu because it considered that the contract had been terminated. That was a reaction. It was not an initiative to terminate the employment so as to bring the termination under Part VIA Division 3 of the Act as a termination at the initiative of the employer. In the employer's perspective, its actions did not substitute a fresh termination for that which was initiated by Mr Doumit. However, the employer's action did operate to substitute an earlier termination of the employment relationship than that initiated by Mr Doumit. The employer's action operated to reduce some of the benefits that would have accrued if Mr Doumit had worked out the notice period. We consider that having regard to all relevant circumstances and particularly the length of the notice period, and the scale of payment to Mr Doumit, the company's action to bring forward the date of effect may and should be conceived as consequential to the resignation. In our view the circumstances of the case do not establish matters of fact or degree that would justify our finding that the employer took advantage of the resignation to in effect substitute a termination of the employment on its own initiative. We do not preclude the possibility of there being such a case, particularly in circumstances where a long period of notice is given in the form of a resignation. But this is not such a case. “

[68] The approach summarised in ABB Engineering and Gunnedah demonstrate that where notice of a resignation is given it will be valid and where the employer accepts such resignation but elects to pay out the notice period without requiring the employee to work the notice, the resignation does not become a dismissal at the initiative of the employer merely because of that action. The Full Bench in ABB Engineering however also confirmed that a contract during a resignation notice period could end by some other intervening event and in certain limited circumstances, a dismissal by the employer could in effect be substituted for the resignation.

[69] The resignation once given by Mr Gupta, confirmed and accepted by FMG, could not be unilaterally withdrawn. The decision by FMG not to accept the withdrawal of the resignation may have been opportunistic, however it was entitled to take that step.

[70] In this case, the notice period was set in the contract however the employer had requested Mr Gupta to confirm whether he intended to work out that period. When this was not confirmed, the employer purported to give effect to the notice period by paying it out without requiring Mr Gupta to work out the notice. This action was, as in ABB Engineering, a response to the resignation and its acceptance, rather than the cause of the termination.

[71] The resignation was effective and not replaced by a dismissal at the employer’s initiative.

CONCLUSIONS

[72] There was no dismissal of Mr Gupta within the meaning of s.386 of the Act. On that basis, there is no jurisdiction for Fair Work Australia to deal with this application.

The application must be dismissed and an order to that end is being issued in conjunction with this decision.

COMMISSIONER

Appearances:

A Wright of Wright and Kirsten Lawyers, with permission for Santosh Gupta.

I Colgrave of counsel, with permission for Koukourou Pty Ltd T/A FMG Engineering.

Hearing details:

2012

Adelaide

October 8, 16

 1   Exhibits A1 to A7 with various attachments.

 2   There was mention of the condition of narcolepsy in an email communication to an Executive Assistant however this was in the context of his inability to participate in voluntary blood donation and its significance to work may not have been appreciated. In any event it was not apparently communicated to management.

 3   This arises from advice given to Mr Gupta in the course of him seeking a disabled parking permit.

 4   The existence of the report was denied by FMG and the person who allegedly received the report, Ms Raine, was not challenged on her evidence.

 5   Birrell v Australian National Airlines Commission [1984] 5 FCR 447.

 6   Middleton v Valvoline (Australia) Pty Limited (IRCA unreported NI 908 of 1994); Southern v Franks Charlesly and Co [1981] IRLR 278; Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183.

 7   Barclay v City of Glasgow District Council [1983] 1 IRLR 313.

 8   Tisocco v Fortunato Group T/as Merri Constructions[2011] FWA 6466, 21 September 2011 per Bissett C.

 9   State of NSW v Paige [2002] NSWCA 235.

 10   Birrell v Australian National Airlines Commission [1984] 5 FCR 447.

 11   Ibid.

 12 [1992] ICR 183.

 13   Ibid at 191.

 14 [1995] IRCA 694.

 15   Mr Grout was obliged to give reasonable notice under an implied term of his contract.

 16   AIRC Print N6999.

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