Peter Bobek v Jba Consulting Engineers Pty Ltd T/A Jba Consulting Engineers

[2020] FWC 5093

[2020] FWC 5093

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Peter Bobek
v
JBA Consulting Engineers Pty Ltd T/A JBA Consulting Engineers
(U2020/4310)

COMMISSIONER BISSETT MELBOURNE, 30 SEPTEMBER 2020

Application for an unfair dismissal remedy.

[1] Mr Peter Bobek (Applicant) has made an application to the Fair Work Commission for a remedy in relation to his dismissal from his employment with JBA Consulting Engineers Pty Ltd T/A JBA Consulting Engineers (Respondent). Mr Bobek is an electrical engineer and had worked for the Respondent since March 1999, first as an independent contractor and then as a direct employee from July 2008. Mr Bobek’s employment ended with effect from 25 March 2020. Mr Bobek says he was dismissed from his employment.

[2] The Respondent objects to the application on the grounds that it says it did not dismiss Mr Bobek but that he resigned or retired from the Respondent with effect from 25 March 2020.

PRELIMINARY MATTERS

[3] For a person to be protected from unfair dismissal the conditions in s.382 of the Fair Work Act 2009 (FW Act)must be met. These are that the person has completed the minimum employment period (s.382(1)(a)) and that a modern award covers or an enterprise agreement applies in relation to the employment or the employee earns less than the high income threshold (s.382(1)(b)(i)-(iii)).

[4] In this case it is agreed that the Applicant served the minimum employment period and that the Professional Employees Award 2010 covered the Applicant’s employment such that he is protected from unfair dismissal.

[5] Section 396 of the FW Act requires that certain matters be considered prior to the consideration of the merits of a person’s application for unfair dismissal. In this case it is not disputed, and I find, that the application was made within the period required by the FW Act, the Applicant was protected from unfair dismissal, the Respondent is not a small business such that the Small Business Fair Dismissal Code does not apply and the dismissal was not a case of genuine redundancy as defined in s.389 of the FW Act.

[6] I do note that the Applicant says that he was, in fact, redundant and should have been paid on termination on the basis of redundancy. It is not necessary that I determine if he was redundant and, as explained to the Applicant, I could not, in any event, order that he be paid an amount for redundancy.

[7] Having heard from the parties at the commencement of proceedings I determined it appropriate that the matter proceed by way of hearing (s.399 of FW Act).

BACKGROUND AND EVIDENCE

[8] Before dealing with the matters set out in s.386(1) of the FW Act it is worthwhile setting out the background and evidence in relation to the application.

[9] Evidence was given in the proceedings by Mr Bobek on his own behalf.

[10] Evidence was given for the Respondent by:

•  Mr Quilon (Quil) Bryar, Engineer and Director of the Respondent;

•  Mr Kashmir (Kash) Bryar, Corporate Services Director and Director of the Respondent;

•  Mr Mauro Romano;

•  Mr Geoffrey Englefield;

•  Mr Keith King;

•  Mr Samir Bhatt; and

•  Mr Tim Bush.

[11] Only Mr Quil Bryar, Mr Kash Bryar and Mr Romano were required for cross examination by the Applicant. Given the Applicant was self-represented it was explained to him from the Bench that a failure to question other witnesses on their evidence meant that I could accept that evidence as true. The Applicant indicated that he understood this.

Mr Bobek

[12] The Applicant said that his spouse was diagnosed with cancer in 2004. From that time until her death in 2020 she had stints in hospital, underwent various procedures and was required to attend numerous appointments with medical specialists. The Applicant would take personal/carer’s leave to attend appointments with his wife.

[13] In January of 2020 the Applicant’s wife was admitted to Peter MacCallum Cancer Centre for approximately 4 weeks as an inpatient, at which time she was transferred to Sunshine Hospital in a Palliative Care Ward for end of life care.

[14] The Applicant said he did not have a discussion with Mr Kash Bryar in February 2019 in which he indicated an intention to retire in mid-2019 nor did ever he indicate that he would retire at the end of 2019 or in June 2020. The Applicant said he never had a conversation with anyone from the Respondent about retiring as he had no intention of doing so. The Applicant also said he had no discussion about a reduction in the number of days he would work each week.

[15] The Applicant said he did not have a conversation with Mr Kash Bryar about COVID-19 and that he had no concern about passing it on to his wife in hospital as he considered the hospital processes for dealing with the virus to provide adequate protection.

[16] The Applicant said that on the 23 March 2020 he was approached by Mr Kash Bryar before midday and asked to go to the lunchroom (the “café”) to speak with him. He said that at this meeting he was informed by Mr Kash Bryar that his last day of employment would be 25 March 2020. He said that sometime after lunch he was also approached by Mr Quil Bryar who reiterated the points regarding his termination.

[17] The Applicant said he did not respond to either Director as he was “in shock to hear” what had been said. He said that he was told that the reason for his dismissal was his age (he was 73 years old at the time), and COVID-19 and his wife being unwell.

[18] The Applicant expressly denied that, at a meeting with Mr Quil Bryar and Mr Romano on 23 March 2020, he said that it was time to retire or that he agreed to finish up on 25 March 2020. In any event the Applicant says that meeting was no more than to hand over some projects to Mr Romano. The Applicant says that at this meeting Mr Quil Bryar told him he had been dismissed.

[19] The Applicant said that following the cessation of his employment he requested documentation in relation to his dismissal as he wanted to understand “the reasoning and details surrounding the Respondent’s choice” to dismiss him. He sent a text message to Mr Quil Bryar on 26 March 2020 and a further text message on 2 April 2020. These requests were responded to on 2 April 2020. The Applicant agreed that he did have a conversation with Mr Quil Bryar on 1 April 2020 in relation to how he would like his final salary split in relation to superannuation.

[20] The Applicant said he had no knowledge of the termination of his employment prior to the meetings he had on 23 March 2020. He said that there is no evidence that he wished to or intended to retire and the Respondent has not produced any such documentation.

[21] The Applicant said that the engagement of a new electrical engineer in February 2020 was not to replace him and that he was never asked to bring her up to speed on the files he was working on.

[22] The Applicant said that he cannot recall much of 24 or 25 March 2020 except that he had a “strange feeling”. He agreed he did not dispute with either Director or anyone else with the Respondent on those days that he did not agree with his dismissal.

[23] The Respondent provided photos dated 25 March 2020. As to the photos taken on his final day at work 1 the Applicant said he had his arms raised celebrating the retirement of Keith King who also finished up that day.

Mr Kashmir Bryar

[24] Mr Kash Bryar gave evidence that in June 2019 he had a conversation with the Applicant with respect to his retirement. At that time Mr Bryar’s father was very ill with terminal cancer and the Applicant’s wife’s illness was well known. Mr Kash Bryar said that at that time he and the Applicant agreed that, given all that was going on, they should discuss the matter of the Applicant’s retirement at the end of the year. Mr Kash Bryar said that in November 2019 he had another conversation with the Applicant who indicated he would retire mid-2020.

[25] In November 2019 interviews were held to find a replacement for the Applicant in anticipation of his retirement in 2020. The successful applicant was Ms Ruby Lau. She commenced in February 2020 and Mr Kash Bryar said he told the Applicant to train Ms Lau in the work he was doing which he agreed to do. Mr Kash Bryar said that around this time Mr Quil Bryar told him he had another conversation with the Applicant who had confirmed he would finish at the end of June.

[26] Mr Kash Bryar said that on 16 March 2020 there was a staff briefing with respect to the risks of COVID-19. Following that briefing he had a discussion with the Applicant with respect to the virus. The Applicant expressed his concern of spreading the virus to his wife.

[27] Mr Kash Bryar said he had a discussion with the Applicant the following Monday 23 March 2020. The Applicant again expressed some concern about the virus and Mr Kash Bryar asked the Applicant if it was worthwhile, in the circumstances, bringing his retirement forward. He says that the Applicant agreed to that. Mr Kash Bryar said he did not discuss an end date with the Applicant as this was something for Human Resources to sort out.

[28] Mr Kash Bryar then spoke to his brother Quil who agreed to speak to the Applicant along with Mr Romano later that day.

[29] On 24 March 2020 Mr Kash Bryar said he had an all staff meeting. In addition to normal updates he advised staff that the Applicant would be retiring and finishing up the next day.

[30] On 25 March 2020 Mr Kash Bryar said he told the Applicant that when the virus passed and it was safe to do so they would have a proper farewell function. He said that at about 4:15pm they had a farewell for the Applicant in which he gave a send-off speech. He said the Applicant also made a speech in which he said it was time to retire.

[31] Mr Kash Bryar said he did not dismiss the Applicant because of his age. He says there was discussion of the dangers of COVID-19 and that, at the time, it was considered an “older persons” virus and that the Applicant’s age put him in the high risk category. He says the same discussion was had with Keith King (who also decided to retire, with the possibility of returning in the future), Tim Bush (who didn’t retire and is still employed by JBA) and Andrew Lingard (who didn’t retire and is still employed by JBA), all of whom are over 60.

Mr Quilon Bryar

[32] Mr Quil Bryar gave evidence that he has known the Applicant for many years and had never known him to be shy about expressing his opinion.

[33] Mr Quil Bryar said that on 20 February 2020 the Applicant spoke to him about reducing his working time to 2-3 days per week prior to retiring. Mr Quil Bryar said at around this time Ms Lau joined the firm as the Applicant’s replacement for when he retired.

[34] Mr Quil Bryar said that on 23 March 2020 Mr Kash Bryar spoke to him and said that the Applicant had agreed to retire and asked if he and Mr Romano could sit with the Applicant and make the necessary arrangements. After lunch Mr Quil Bryar approached Mr Romano and the Applicant and asked if they could meet to discuss the Applicant’s plans. About an hour later the three met in the conference room. 2 Mr Quil Bryar asked the Applicant about the discussion he had earlier that day to which the Applicant replied that it was time he retired and he had decided to bring his retirement forward. Mr Quil Bryar asked about the logistics of finishing up on the Wednesday and what needed to be done. Mr Romano and the Applicant discussed some of the projects on hand; about developing a handover brief and handing over all the work.

[35] Mr Quil Bryar advised his brother Kash that the Applicant would finish up on Wednesday 25 March 2020.

[36] On 24 March 2020, following the staff briefing, Mr Quil Bryar said the Applicant approached him and asked about having his notice period of 5 weeks paid out. Mr Quil Bryar told the Applicant he was not entitled to notice and that the Respondent had waived the notice the Applicant was required to give to enable him to finish up as quickly as possible.

[37] On 25 March 2020 Mr Quil Bryar observed the Applicant packing up his desk. He said that the Applicant appeared in an upbeat mood and happy. Mr Quil Bryar asked the Applicant if he wanted to salary sacrifice from his final pay into his superannuation and if so how much (as the Applicant had been doing this). The Applicant said he would have to get back to him.

[38] Mr Quil Bryar said that at about 4:10pm on 25 March 2020 they had speeches for the Applicant’s retirement at the end of which the office gave three cheers for the Applicant. The Applicant told of his memories working for the Respondent. A “farewell” card was presented to the Applicant signed by staff of the Respondent. 3

[39] Mr Quil Bryar said that between 25 - 29 March 2020 he and the Applicant exchanged phone calls but missed each other. On 30 March 2020 he had a phone conversation with the Applicant of over 14 minutes, where the Applicant did not dispute his retirement, and on 1 April 2020 he had a further conversation by phone with Applicant in relation to salary sacrifice of his final pay into superannuation.

Mr Mauro Romano

[40] Mr Romano was the Applicant’s direct manager. He gave evidence that towards the end of 2019 he had a conversation with the Applicant about his future plans. He said the Applicant said he was looking at working 2-3 days a week until mid-2020 and then to fully retire.

[41] Mr Romano said that between 17 - 20 March he had discussions with the Applicant about the coronavirus. He said the Applicant said that he was concerned about the virus, especially for someone his age, and how it would affect his wife if he could not accompany her to appointments.

[42] Mr Romano said he was not in the office on 16 March 2020 but was aware the Bryars intended to speak to staff about COVID-19 and how the business might manage social distancing.

[43] On 23 March 2020 Mr Quil Bryar approached Mr Romano and the Applicant and asked if they could meet to discuss the Applicant’s last days at work. Mr Romano said that it was at this time he learned the Applicant was retiring.

[44] During the meeting on 23 March 2020 in the conference room Mr Romano said the Applicant spoke of his concerns with coronavirus and being able to see and/or assist his wife. Mr Quil Bryar said he understood the Applicant had spoken to Mr Kash Bryar and agreed to bring his retirement forward. Mr Romano said that the Applicant agreed this was the case and, in Mr Romano’s opinion, the Applicant seemed “rather happy and relieved” at the decision to retire. Mr Romano said they then discussed how the Applicant would hand over his projects to Mr Romano.

[45] Mr Romano said that on 25 March 2020 the Applicant prepared a handover list for his projects which was “detailed and comprehensive”.

Other evidence

[46] Evidence, in the form of written statements, was also given by Keith King (Mechanical Design Documenter), Geoffrey Englefield (Senior Engineer – Mechanical Services), Tim Bush (Senior Associate – Project Services) and Samir Bhatt (Sales Engineer with the company ‘SLS’). None of these witnesses were required for cross examination.

[47] Mr Englefield said that he had worked for the Respondent for 28 years and has known the Applicant for the time they had worked together for the Respondent. He said that for the last 12 months the Applicant had discussed retiring and that he was looking forward to walking the dog and not worrying about work. He said that as the Applicant was planning on retiring soon he was not surprised when it was announced at the office meeting on 24 March 2020. Mr Englefield said that on 25 March 2020 there were farewell speeches for the Applicant and Mr King who was also retiring but the concentration was on the Applicant.

[48] Mr King has worked for the Respondent since 1967. He said that on 23 March 2020 he had a conversation with Mr Kash Bryar where they agreed that Mr King would retire “on extended leave”. This meant that he would leave the Respondent but, after the coronavirus passed they would discuss if he wished to return and/or if the business needed him. Mr King said that, contrary to the Applicant’s assertions, he was not dismissed from his employment with the Respondent.

[49] Mr King said that on 24 March 2020 at a staff meeting staff were advised that the Applicant was retiring and Mr King was retiring on extended leave. On 25 March 2020 there were farewell speeches with the focus on the Applicant as he was “fully retiring.”

[50] Mr Bush said that he has worked for the Respondent since 2012. He said that from early 2019 both the Bryars mentioned they were discussing retirement with the Applicant. Mr Bush said that in early February 2020 he was involved in interviewing Ms Lau as a replacement for the Applicant when he retired.

[51] Mr Bhatt said that he works for SLS (an unrelated company) and a couple of times a week would visit the Respondent and work with the electrical team on lighting issues. He said he had known the Applicant and the Bryars for many years. He said the Applicant was not shy in stating his views and he had not known the Applicant to not speak his mind if he had something to say.

[52] Mr Bhatt said that the Applicant often spoke to him of retirement and would ask how his father had coped with retirement.

UNFAIR DISMISSAL

[53] Section 385 of the FW Act sets out those circumstances in which a dismissal will be found to be unfair:

A person has been unfairly dismissed if FWA is satisfied that:

(a) the person has been dismissed; and

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

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

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

[54] Whilst I am satisfied that s.385(c) and (d) do not apply in this case it is necessary to determine of the Applicant was, in fact, dismissed from his employment.

MEANING OF DISMISSAL

[55] Section 386 of the FW Act states:

(1) A person has been dismissed if:

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

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

[56] I am satisfied that the exceptions in s.386(2) and (3) do not apply in this case.

[57] The matter to determine is if either of s.386(1)(a) or (b) apply.

(a) employment terminated at the initiative of the employer

[58] A termination is at the employer’s initiative when:

•  the employer’s action “directly and consequentially” results in the termination of employment, and

•  had the employer not taken this action, the employee would have remained employed. 4

[59] There must be action by the employer that either intends to bring the relationship to an end or has that probable result. 5

[60] In making a determination as to whether the dismissal was at the initiative of the employer, it is important to examine all of the circumstances including the conduct of the employer and the employee. 6 The question of whether the act of an employer results “directly or consequentially” in the termination of employment is an important consideration but it is not the only consideration.7

[61] In O’Meara v Stanley Works Pty Ltd 8  a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in relation to termination at the initiative of the employer. The Full Bench concluded:

[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.” [References omitted]

[62] I have carefully considered the evidence of the Applicant and that of Mr Quil Bryar and Mr Kash Bryar. I have also considered the evidence of other witnesses including Mr Romano who met with the Applicant on 23 March 2020, and others particularly in respect to the events and demeanour of the Applicant on 24 and 25 March 2020. To the extent the Applicant says that anyone who agrees that the Applicant used the word “retirement” on 25 March 2020 at his farewell is biased, the evidence before the Commission does not support such a conclusion. Further, the Applicant was given an opportunity to put such claims of bias to the witnesses but chose not to cross examine many of those witnesses. To the extent that evidence was given by witnesses who were not cross examined I have accepted their evidence and, to the extent it is contrary to the views of the Applicant I prefer their evidence to that of the Applicant.

[63] In this case the uncontested evidence of Mr Romano, Mr King, Mr Englefield, and Mr Bush supports a conclusion that the Applicant left voluntarily, that his retirement was not a great surprise and that the Applicant was looking forward to his retirement. To the extent the Applicant says he did not tell Mr Kash Bryar or Mr Quil Bryar that he wished to retire either in the 6 months before or on or around 23 March 2020 I prefer to the evidence of the Bryars to that of the Applicant. The weight of the evidence from others supports a conclusion that the Applicant voluntarily retired and that it was a matter he had been considering for some period of time.

[64] I have also taken into account that on 24 March 2020 staff were advised of the Applicant’s retirement and the Applicant did nothing to dissuade his colleagues of this or protest to his employer the characterisation of his departure. The uncontested evidence of Mr Quil Bryar and Mr Bhatt is that the Applicant was forthright in expressing his views and not shy in saying what he thought. Why he should lose this trait at this time is not explained by the evidence. To the extent the Applicant says he had a “strange feeling” on these days (which presumably he says affected his reactions) I deal with this below. Further, on 25 March 2020, along with speeches, the Applicant was presented with a farewell card. The messages on the card are jovial and friendly in nature, reference walking the dog (which Mr Englefield gave evidence he had spoken of as something he would do in retirement) and appear sincere. The card is signed by both Mr Quil and Mr Kash Bryar with the message from Mr Quil Bryar particularly effusive in gratitude. These are not messages suggesting dismissal from employment, or that the Applicant was otherwise forced to leave.

[65] My conclusion as to the basis of the Applicant’s departure is supported by the photographs in evidence from the farewell on 25 March 2020. The Applicant has his arms in the air suggesting jubilation, not dejection which might be expected if the employment had been terminated against the will of the Applicant. I do not accept the evidence of the Applicant that his gesture of his arms in the air that he was celebrating the retirement of Keith King. The evidence of other witnesses is contrary to such a conclusion. Further, it is a strange gesture if, as the Applicant claims, he believed that Mr King was dismissed.

[66] The totality of the evidence leads me to prefer the evidence of Mr Quil Bryar, Mr Kash Bryar and Mr Romano as to the conversations with the Applicant leading up to and on 23 March 2020 to that of the Applicant as to the Applicant’s retirement plans. Mr Romano was subject to cross examination but was not questioned on what occurred in the meeting in the conference room in the afternoon of 23 March 2020.

[67] Further support for my conclusion is found in the employment of Ms Lau. Mr Bush said he was involved in the selection of Ms Lau and Mr Kash Bryar said that, on Ms Lau’s employment, the Applicant was directed to commence bringing Ms Lau up to speed across his work. Whilst the employment of Ms Lau was done in anticipation of the Applicant retiring in mid-year, the Applicant’s retirement in March 2020 is not inconsistent with the original intention conveyed prior to the time the extent of the COVID-19 pandemic was apparent. In relation to this I prefer the evidence of Mr Kash Bryar to that of the Applicant in relation to the employment of various engineers over 2019 and early 2020.

[68] To the extent that the Applicant says he had a “strange feeling” on 23 – 25 March 2020 or was “not in the right frame of mind,” the medical evidence provided to support this conclusion by the Applicant does not support such a finding. The medical evidence is a doctor’s note in relation to the Applicant’s attendance with the doctor on 5 May 2020 – more than 5 weeks after the end of his employment. Further, that note says the Applicant was feeling stressed and depressed by the termination on 2 days’ notice – it does not say the Applicant was not thinking straight or unable to comprehend what was happening to him from 23 to 25 March 2020 such that he could not engage with the Respondent about the termination of his employment.

[69] As to the conduct of the parties after 25 March 2020 the Applicant said in his submissions that:

Quilon called me shortly after on the 1st of April 2020 and asked whether I would still like to put $10,000 AUD into my super fund. During this phone call, I also asked about my minimum legal requirements to ascertain whether JBA would pay my 5-week notice period and 12-week redundancy payment. Quilon did not respond to this, leading me to question his intent in payment of my final earnings.

On the 2nd of April, 2020, I received an email from Quilon Bryar containing my termination letter which he incorrectly titled “Retirement” and a breakdown of my final pay. (Please see Exhibit 1 as attached in a separate document titled Applicant’s Exhibits.) Including $12,012.65 AUD for March Salary and the 5-week notice period, $17,573.20 AUD long service leave, $5,538.10 AUD annual leave and $1,141.20 AUD super payment.

Having seen the document sent to me by Quilon Bryar on the 2nd of April 2020 with the title of the letter attached containing “Retirement”, this led me to believe that JBA were in fact taking advantage of the situation and were trying to falsify the events that took place. In conjunction with this, I recalled multiple former employees’ pay disputes, which in fact lead to multiple cases brought to the Fair Work Commission against JBA (e.g. JBA Consulting Engineers Pty Ltd V Ross Gundesen [2018] FWC 7721 (19 December 2018). After some time to dwell on the aforementioned phone call and lack of clarity provided by JBA, I felt that I would not be receiving my minimum legal requirements and decided to lodge an unfair dismissal case with Fair Work. 9

[70] This submission suggests that the Applicant did not consider he had been unfairly dismissed until he realised he would not be in receipt of a redundancy payment. 10 I would observe, however, that there is no evidence from the Applicant or any other person of redundancy having been discussed in the lead up to 25 March 2020. The Applicant does not say he had a conversation to this extent with either of the Bryars or that it was mentioned by anyone else.

[71] I note that the correspondence between the Applicant’s son and an employee of the Fair Work Ombudsman is not evidence that the Applicant was entitled to redundancy pay as asserted by the Applicant but rather is evidence of how much the Applicant would be entitled to receive if he was made redundant. Even if the Applicant was entitled to a redundancy payment the non-payment of an entitlement does not, of itself, make the dismissal unfair as defined by the FW Act. Further, in an application such as this, the Commission cannot order the payment of any existing entitlement but rather can only order reinstatement or compensation in lieu of that reinstatement.

[72] It appears this application has been brought by the Applicant to pursue an entitlement he considers due to him – a redundancy payment. That he may consider he was entitled to such a payment does not support his claim that his employment was terminated at the initiative of the employer.

[73] Certainly it may be that, had the Respondent not raised retirement with the Applicant in March 2020, he would still be employed. However, the uncontested evidence of Mr Kash Bryar is that he had conversations with a number of employees who were considered to be in the high risk category for COVID-19 (at least in its early stages in March 2020) and only Mr King and the Applicant decided to leave with the other two employees still employed by the Respondent. This evidence supports a conclusion that the Applicant’s employment was not terminated by “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.” That the Respondent had a conversation with the Applicant and that the Applicant decided to retire is not evidence that supports a conclusion that the employment was terminated at the initiative of the employer. Ultimately the choice was that of the Applicant.

[74] I do note that the Applicant has gained further employment. Whilst he says this is evidence that he never intended to retire when he did I am not satisfied that it is enough to support a conclusion that the termination by the Applicant was at the intuitive of the employer.

(b) the employee resigned but was forced to do so by conduct or a course of conduct of the employer

[75] Whether the end of employment was a retirement or resignation I am satisfied that it was at the initiative of the Applicant.

[76] The Applicant has not made any submissions that he was forced to resign or retire due to the conduct or course of conduct of the Respondent. Rather, he says that he was dismissed.

[77] If it is that the Applicant does say he was forced to resign, for the reasons given above I am satisfied that the Applicant was considering retiring, that the advent of COVID-19 brought about discussions in the workplace in relation to social distancing and that this confluence of circumstances resulted in him retiring a few months earlier than he had otherwise considered he would.

[78] The evidence before the Commission does not support a conclusion that there was some conduct or course of conduct that forced the Applicant to resign his employment.

WAS THE APPLICANT DISMISSED?

[79] Neither of the conditions in s.386(1)(a) or (b) have been met. I therefore conclude that the Applicant was not dismissed.

[80] As the Applicant was not dismissed he cannot have been unfairly dismissed. To be unfairly dismissed each of the conditions in s.385(a)-(d) (as are relevant to the employment) must be satisfied. The Applicant was not dismissed and therefore cannot have been unfairly dismissed.

[81] The application is therefore dismissed. An order 11 to this effect will be issued shortly.

COMMISSIONER

Appearances:

P Bobek on his own behalf.

T Fuimaono-Page for the Respondent.

Hearing details:

2020.
Melbourne by video conference.
August 28.

Printed by authority of the Commonwealth Government Printer

<PR722992>

 1   Exhibit R7, attachments QB2 and QB3.

 2   Exhibit R7 attachment QB1.

 3   Exhibit R7, attachment QB4.

 4   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 205.

 5   Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at para. 24, [(2011) 212 IR 248]; citing 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].

 6   O’Meara v Stanley Works Pty Ltd PR973462 at para. 23, [(2006) 58 AILR 100]; citing Pawel v Advanced Precast Pty Ltd Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2); and ABB Engineering Construction Pty Ltd v Doumit Print N6999.

 7   Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.

 8    (2006) 58 AILR 100 cited in Barkla v G4S Custodial Services Pty Ltd [2011] FWAFB 3769 at para. 24.

 9   Applicant’s submissions, paragraphs 12-14.

 10   The case referred to by the Applicant in his submissions (JBA Consulting Engineers Pty Ltd v Ross Gundesen[2018] FWC 7721) was an application of the Respondent to reduce the redundancy pay available to an employee pursuant to s.120 of the FW Act. It does not, as the Applicant suggests, demonstrate that the Respondent was misleading the Commission in either that or this matter.

 11   PR722993.