Robert Daffey v MSS Security Pty Ltd

[2011] FWA 3983

[2011] FWA 3983

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Robert Daffey
v
MSS Security Pty Ltd
(U2010/15354)

COMMISSIONER ROBERTS SYDNEY, 31 AUGUST 2011

Application for unfair dismissal remedy - jurisdictional motion - no termination at the initiative of the respondent company.

[1] This decision concerns an application lodged on 22 December 2010 by Mr Daffey pursuant to s.394 of the Fair Work Act 2009 (the Act) in relation to the alleged unfair termination of his employment by MSS Security Pty Ltd (MSS or the Company). The application was dealt with by a Fair Work Australia Conciliator on 3 February 2011. The conciliation was initially successful but a proposed settlement was later aborted.

[2] A jurisdictional objection (no termination at the initiative of the employer) and the arbitration of the substantive application came before me for hearing in Darwin on 17 May 2011. Parties were directed to file outlines of submissions and witness statements prior to the hearing and both parties substantially complied. At the hearing Mr Daffey represented himself and MSS was represented by Mr M Crawley of Cridlands MB Lawyers. Mr Daffey gave sworn evidence on his own behalf. Mr R Ottrey (HR Manager for SA/NT) and Mr M Burleigh (General Manager for SA/NT) gave sworn evidence for the Company.

[3] During the proceedings it was agreed that the jurisdictional objection and the substantive arbitration would be heard together. My decision would then deal with the jurisdictional objection as a threshold matter and only proceed to determine the substantive application should the jurisdictional objection be dismissed.

Background

[4] Mr Daffey was first employed by Chubb Security (later renamed MSS Security) as a Security Officer in December 1997. In September 2003 he was appointed Mobile Services Supervisor and from 1 January 2006 he became a Site Supervisor. In January 2008 Mr Daffey was appointed as Training, Compliance and HSB Coordinator before becoming Northern Territory Training and HSE Officer in April of the same year. His title and job description were later changed to Darwin Operations Manager, HSE, Training and Compliance Coordinator.

[5] As an Operations Manager, Mr Daffey reported to Ms E Graham, the State Operations Manager NT for MSS.

[6] His employment relationship with MSS ended on or about 10 December 2010. MSS claims that Mr Daffey resigned from his position but Mr Daffey maintains that, although he tendered a letter of resignation, the resignation was tendered in such circumstances as to make the ending of the employment relationship a constructive dismissal and unfair.

Evidence

[7] In summarising the evidence of Mr Daffey, Mr Ottrey and Mr Burleigh, I have dealt with their witness statements in some detail. However, given my ultimate conclusion, I have only set out a summary of the cross-examination of each witness as it relates to the resignation or constructive dismissal issue.

Mr Daffey

[8] Mr Daffey gave sworn evidence and submitted a witness statement 1. Mr Daffey’s witness statement also comprised his written submissions in this matter. In his witness statement Mr Daffey said that the process followed by MSS led to his resignation.

[9] Mr Daffey went on to say, in summary, that:

• He first became aware of alleged problems with his work performance on 1 December 2010.



• “I have never faced a discipline hearing or work performance counselling in the 12 years I have worked for the company.”



• At the meeting on 1 December 2010, Mr Burleigh put forward his concerns about the mould issue and the MAST Training Mr Daffey had just completed for some Serco staff.



• It was agreed that he would prepare his responses to each concern and reply on 2 December 2010.



• At the 2 December 2010 meeting, the mould issue was the first point discussed. His view was that no one had ever complained to him about this issue.



• He did not realise that weekly site reports were not being completed and immediately after the meeting spoke to Mr Cendo and asked him to commence doing these reports again.



• He denied not carrying out site visits.



• In relation to the MAST Training: “I am a certified trainer and have been for the past 10 years. The MAST training that I delivered to the Serco staff, I have been delivering to our staff for the past 4 years. I did not deliver something that I am not qualified to train in.”



• That he became frustrated during the disciplinary meeting with Mr S “... because the witness he brought into the meeting was a lawyer and would not let [Mr S] answer any of the questions I put to him.”

[10] Mr Daffey went on to say that at the 2 December 2010 meeting, Mr Burleigh informed him that he was to be removed from his position immediately, would be going on to a guard site in future, would be on annual leave “until they could work out what site they would place me on”. “I was to collect anything I needed out of the office now and leave the office for the rest of Thursday and Friday and will be on leave all the following week. He would be in touch with me on Monday by phone to let me know what they were going to do.”

[11] He informed Mr Burleigh at the meeting that he would not go to a guard site and was then told that he would not be working in the office anymore and the only position on offer to him was on a guard site. “At no stage during this meeting was I given a chance, offer or a timeline to address and maybe improve my work performance. In some cases we have to give up to three months for our other staff members to improve their work performance but I was not given this opportunity.”

[12] During a telephone conference on 6 December 2010 the issues between the Company and him were again canvassed and he told Mr Burleigh and Ms Graham that he felt he was being treated unfairly and not being given a chance to fully respond to allegations against him. “Again I informed [Mr Burleigh] that I would not be going to a guard site. He told me that was all the company had to offer and it may take a couple more weeks than he thought to sort out a position and site for me.”

[13] On 7 December 2010: “[Mr Ottrey] rang me on this day to talk and he offered me a position on a guard site and also, when required to carry out training. He said to think about the position and in the meantime he would have to talk to [Mr Burleigh] to see if they could put the position together. He also asked me to give him a call after I had a think about the offer.”

[14] On 9 December 2010, he was contacted by Mr Burleigh and offered his old position back as Darwin Operations Manager. “This offer came with the following conditions; I would be given a first and final written warning, performance objectives and I would be reporting to him and no one else and I was only to converse with him on this matter. At no time through this conversation did [Mr Burleigh] mention the so called position that [Mr Ottrey] offered me. [Mr Burleigh] gave me until Friday 10th December to consider this offer.”

[15] On 10 December 2010, he still could not decide what path he should take and asked for further time to consider his options. This was refused by Mr Burleigh who said, when told that he would not accept a position on a guard site, “then what are you going to do ‘resign or what’?” After the conversation he wrote out a resignation and handed it to Ms Graham. “I could not work out why [Mr Burleigh] would not allow me the weekend to consider his offer as I was on leave until Friday the 17th December 2010.” After handing his letter of resignation to Ms Graham, he was asked to return his car keys and the company phone immediately.

[16] Mr Daffey argues that the actions of the Company “... placed me in a position that I had no choice, but to resign my position with MSS Security.”

[17] Mr Daffey’s statement goes on to respond in some detail to performance allegations against him. I have paid regard to that material as far as it is relevant to my determination.

[18] In cross-examination, Mr Daffey did not agree with the factual matrix put forward by the Company concerning the performance issues.

[19] In further cross-examination, Mr Daffey:

• Agreed that Mr Burleigh told him that MSS was not attempting to terminate his employment. 2



• Denied being told that his income would not be affected by being redeployed to a site. 3 “He didn't say anything about the income. No mention was ever - nothing was ever mentioned about staying on the same income.”4



• Agreed that he was told that it would take ‘a couple of weeks’ to find an appropriate site. 5



• Was asked: “He never said that you would be going to a site as a guard, did he?” and replied: “And he didn't say I'd be going as a supervisor either.” 6



• Agreed that it would not have taken a couple of weeks to organise a guard position and that such a transfer could have occurred very quickly. 7



• Was asked: “And at the meeting he again reiterated he wanted you to stay with the business, didn't he?” and replied: “That's correct. Well, I wanted to stay with the business. I've got my wife and two sons working there. The last thing I wanted to do was to leave employment with that company.” 8



• Agreed that at the end of a meeting on 2 December 2010 with Mr Burleigh he had been asked whether he felt that he had been treated fairly and responded that he did. 9



• Agreed that Mr Ottrey had offered a position which is a combination of training and on-site duties. He further agreed that he did not respond to the offer. 10



• Was asked: “Didn't you understand that what the company was trying to do was to find a role that could keep you with the company?” and replied: “Yes.” 11



• Agreed that Mr Burleigh offered him the option of staying in his previous position subject to it being on the basis of a final warning and a performance plan. That performance plan was not elaborated on at the time. 12



• Said that he rejected Mr Burleigh’s final offer of a return to his old position on certain conditions.



• Said that he tendered his resignation when he was refused further time to consider his options. 13



• Agreed that he did not ask what conditions would be put on his resuming his old position. 14



• Said that he felt he had no choice but to resign when Mr Burleigh asked him what he was going to do. 15

Mr Ottrey

[20] Mr Ottrey gave sworn evidence and submitted a witness statement 16. In summary, it was Mr Ottrey’s witness statement that:

• He was well acquainted with Mr Daffey during the period of Mr Daffey’s employment with MSS.



• He had a number of ‘issues’ with Mr Daffey’s work performance.



• “In about October 2010 I spoke to [Mr Daffey] about some procedural forms that had not been completed correctly. [Mr Daffey] had signed documents without making sure that all the information that was required from new employees was accurate and present. This caused the company some major issues with Immigration as some employees were working above the hours that they were entitled to with their Visas.”



• The Applicant received a verbal warning in relation to the forms and accepted that he should have done a more thorough job. “He went on to say that he felt he had no involvement with the Serco contract and wanted to be part of everything that was going on... I spoke to [Mr Daffey] again and he was happy to get involved at every level of the contract. From that day on he said that he would take responsibility for the contract.”



• “At no stage at anytime have we ever used unlicensed officers at any of our contracts. [Mr Daffey] had put the company and the business at real risk by working as an unlicensed officer. This could have resulted in our security licence being revoked. This was raised with him by [Mr Burleigh].



• “As well as the HR Manager for SA/NT, I am also the National Training Coordinator for MSS Security. In August 2010, I spoke to [Mr Daffey] regarding his training qualifications. His Certificate IV was no longer current, as he had further modules he needed to undertake. I requested that he do so, as he was not qualified to undertake training until he did. I am aware that he failed to update his qualifications, despite being told on a number of occasions that he needed to up-date his qualifications Certificate IV in TAA been the acceptable standard for the last 3 years. [Mr Daffey] went on without consultation with anybody and had provided some MAST training. He was not qualified to do this training. He did not consult with anybody and the material was old and not up-dated. This was raised with [Mr Daffey] by [Mr Burleigh].”



• “There were several complaints about [Mr S] an employee at Alice Springs that went back over 12 months. [Mr Daffey] had been given a number of opportunities to go to Alice Springs to sort this out. [Mr Daffey] refused.”



• “[Mr Daffey] was told that as the Operations Manager he was required to front [Mr S] with a number of allegations. I indicated that I would come with him as it is serious and if a dismissal is required then I will handle this. [Mr Daffey] was told that as Operations Manager and as the person who can best understand the contract, the allegations have to be put forward by him.”



• The Applicant did not handle the Mr S’s situation well and during an interview with Mr S, the Applicant became threatening and abusive and Mr Ottrey was forced to take over the interview.



• “I was aware that [Mr Burleigh] had a meeting with [Mr Daffey] on 2 December 2010, and proposed a return to site for [Mr Daffey], which apparently [Mr Daffey] did not want. Following discussions with [Mr Burleigh], on Tuesday 7 December 2010 I rang and offered a position to [Mr Daffey] which included a training component. [Mr Daffey] was quite excited about this possibility as training is something that he feels very passionate about. [Mr Daffey] promised to phone me back within 24 hours. He never did. I tried to ring him several times but he did not answer his phone. I understand that subsequently he indicated to [Mr Burleigh] on Thursday 9 of December 2010 that he did not want the position that I offered.”



• The 7 December 2010 offer included updating the Applicant’s certificate to the relevant standard.



• “I feel that everything was done that could be done to accommodate [Mr Daffey] within MSS.”

[21] In cross-examination, Mr Ottrey was questioned concerning alleged work performance issues. Nothing of significance concerning the resignation issue arose during the cross-examination.

Mr Burleigh

[22] Mr Burleigh gave sworn evidence and submitted a witness statement 17. In summary, it was Mr Burleigh’s witness statement that:

• “His duties included but were not limited to undertaking and managing the training and qualifications of the security employees, as well as HSE issues, including risk assessments on worksites, completing hazard identifications, and ensuring the appropriate reporting and follow up on incidents and injuries.”



• “Subsequently, his title and job description was changed to Darwin Operations Manager, HSE, Training and Compliance Coordinator. This change brought with it an increased HR role for the management of employees, and emphasized the need to ensure compliance with safety and security regulatory requirements. There was no change in pay.”



• During the second half of 2010, a number of issues arose relating to Mr Daffey’s performance, particularly in relation to duties not being carried out at all: “a serious health and safety issue in the office had been ignored by him.”



• In August 2010 he and Mr Ottrey raised with Mr Daffey “that his training qualification was no longer current and that he should attend to completing the additional modules. [Mr Daffey] did not do this.”



• MSS took over work for Serco in April 2010. At Mr Daffey’s request, he was given full responsibility for Serco.



• Mr Daffey failed to ensure that all staff of Power and Water had ‘white cards’ by mid November 2010.



• “I noted that [Mr Daffey]’s training qualification had expired and that therefore the training he had undertaken for employees of a major client was non-compliant and would need to be repeated.”



• “I viewed the situation as being sufficiently serious as to warrant a formal work performance meeting, rather than another of the informal counselling sessions had had received in the past.”



• He spoke to Mr Daffey on 1 December 2010 and arranged a meeting for 2 December 2010 to discuss “the serious operational matters of concern to me and the business”. Mr Daffey had the opportunity of having a support person at the meeting.



• Mr Daffey attended the 2 December 2010 meeting alone. “Prior to commencing the meeting, I again informed [Mr Daffey] that the meeting was to discuss and seek responses to issues of concern associated with his work performance. Again, I gave him the opportunity of having a support person present. He declined the option.”



• Issues raised with Mr Daffey on 2 December 2010 included a “serious mould problem in the floor of Anthony Cendo’s office”. Mr Daffey responded that he was not aware of the mould issue. He had not taken the appropriate action.



• Another issue raised related to his Certificate IV being out of date and the resulting invalidity of training he had performed. Mr Daffey had also failed to provide weekly Serco reports as required.



• Another issue was Mr Daffey’s failure to conduct regular site visits at Serco facilities or the Power and Water site.



• Mr Daffey failed to follow Power and Water’s request relating to white cards.



• Mr Daffey’s handling of the performance management of [Mr S] exposed the Company to potential allegations of bullying, harassment and intimidation during a performance review meeting Mr Daffey held with [Mr S] in November 2010. “[Mr Daffey]’s response was to indicate that he became very frustrated and angry with the man. I accept that he was a difficult employee to manage, but there is no excuse for [Mr Daffey] losing his temper in a performance review.”



• Mr Daffey was apparently “incapable of responding to e-mails in a timely manner, often resulting in me having to follow-up for responses with subsequent requests. [Mr Daffey] showed the same attitude to client communications.”



• “On the basis of all of these concerns, I doubted that [Mr Daffey] was capable of carrying out the duties required of him as an Operations Manager.”



• “In the circumstances, I informed [Mr Daffey] that I saw little option but to reassign him to site duties. I assured [Mr Daffey] his income would not be affected. I told [Mr Daffey] we wanted him to stay with the company, and there would be no termination.”



• Mr Daffey was given time off on full pay to consider his position pending a telephone conference on 6 December 2010 (later moved to 7 December) to discuss his return to site duties. He would then be placed on two weeks annual leave while a suitable site was identified. “In the meantime, I was open for him to contact me at any time to discuss the matter further. I asked him whether he felt he had been treated fairly, and [Mr Daffey] said he had. I reiterated the business was changing, but I wanted him to remain a part of it.”



• During the 7 December 2010 telephone conference, Mr Daffey indicated that he would not accept a guard role. However, it was not Mr Burleigh’s intention to offer him such a role but rather a position as a site supervisor.



• “So in an effort to find a compromise solution, on 7 December 2010 [Mr Daffey] was offered another position within the company as a trainer as well as on-site in the central business district. Ultimately, he declined this.”



• He spoke again with Mr Daffey on 9 December 2010: “I asked what he would like and he still did not have a solution except to say that he felt aggrieved. In the circumstances, I offered him to return to his current position but on the basis of a final warning because of the various issues I had discussed with him the previous week and subject to a performance plan which would be managed by me on a weekly basis. ... The details of a performance plan would need to be negotiated. It was agreed that he have the opportunity to consider this over night and get back to me on Friday, 10 December 2010.”

• On 10 December 2010, Mr Daffey asked for further time to consider the option. “I felt that as this process had already extended through a week, it was long enough. I therefore informed him that I required his answer. [Mr Daffey]’s response was to say that in those circumstances he would resign.” Mr Daffey tendered his resignation on the same day and it was accepted by Mr Burleigh.

[23] Mr Burleigh went on to say that: “In making the offer I did on 9 December 2010, I hoped we could bring [Mr Daffey] up to an appropriate level of performance. I was aware he would need close supervision to keep to task, but I was prepared to make my time available to assist him. My suspicion was that with the growth of the business, [Mr Daffey] really was not up to the task, which was why initially I suggested returning him to site, where I thought he might be more comfortable. It was never my intention to financially disadvantage him, and I had assured him of that. However, if he felt he could make the grade and wanted to try again, I was willing to provide him with the opportunity to do so. In making the offer, it was never my intention to ‘manage’ him out. Had he stayed with the company, and still not succeeded as Operations Manager, I would still have endeavoured to find him another role within the company.”

[24] In cross-examination, Mr Burleigh:

• Said that a definite decision to move Mr Daffey to a site job was made on 7 December 2010. 18



• That intention had been flagged to Mr Daffey on 2 December 2010. 19



• Agreed that Mr Daffey was offered his old position back on certain conditions on 9 December 2010. 20



• Agreed that Mr Daffey asked for more time to consider his options on 10 December 2010. 21



• Said that Mr Daffey responded to the refusal to grant him more time to consider his position by rejecting the offer made to him on 9 December 2010 and resigning. 22

Submissions

[25] Both parties made submissions summarising their respective cases. I have paid regard to those submissions but do not intend to deal with them in any detail, preferring to primarily rely on the evidence and materials before me during proceedings.

Conclusions and Finding

[26] Subsection 386(1) of the Act provides:

“(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.”

[27] In the case before me, Mr Daffey maintains that subsection 386(1)(b) applies in his situation.

[28] Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. “Initiative” is relevantly defined in the New Shorter Oxford Dictionary as:

“initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”

[29] This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd 23 (Mohazab) where at p205 a Full Court of the Industrial Relations Court of Australia said, “… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

[30] In Mohazab, the Full Court also said:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 24

[31] The reasoning in Mohazab was adopted by Full Benches of the Australian Industrial Relations Commission (AIRC) in Essential Personnel Pty Ltd v Wray 25, Ngo v Link Printing Pty Ltd26 and Beck v Castran Gilbert Real Estate Pty Ltd27, amongst others.

[32] A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd 28 said, “We do not doubt that Mr Stubbs believed he had good reason to resign. However, the fact that an employee has good reason to resign does not of itself establish that the employment is not voluntarily left by the employee. To constitute termination at the initiative of the employer the termination must be the direct or consequential result of ‘some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect . . .’[Rheinburger v Huxley Marketing, 16 April 1996 per Moore J].”

[33] A Full Bench of the AIRC in ABB Engineering Construction Pty Limited v Doumit 29 said:

“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. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.”

[34] The Full Bench went on to cite:

“… in Minato v Palmer Corporation Ltd where Murphy JR referred to a number of cases dealing with the situation where "special circumstances" arise. He referred in particular to a UK decision where Wood J stated:

‘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 …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 employers 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 objective.’"

[35] In Pawel v Australian Industrial Relations Commission 30 (Pawel) Dowsett J said:

“When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any "misconduct" on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, finds aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If "initiative" implies only causation, it will usually be arguable that the employer has "initiated" the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. The process prescribed in Division 3, which depends on termination, is too cumbersome to have been intended to resolve issues of that kind. I do not accept that any employee whose decision to resign was, to some extent, motivated by action or inaction on the part of the employer, may initiate proceedings pursuant to subs 170CE(1). Mere "causation" or "motivation" will not satisfy the requirement that the termination be at the initiative of the employer.”

[36] In P O’Meara v Stanley Works Pty Ltd 31(O’Meara), a Full Bench of the AIRC said:

“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.” 32 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”33

[37] The decision in O’Meara was followed by her Honour Senior Deputy President Marsh in Beverley Hardcastle v C A Hill & Associates Pty Limited 34.

[38] His Honour Senior Deputy President Richards in Hastie v Impress Australia Pty Ltd 35 (Hastie) considered the question of constructive dismissal under previous legislation. His Honour considered the previous case law on ‘forced’ resignation and his decision is worthy of inclusion at some length in this decision:

“It appears to me that the authorities in this area prior to the commencement of the Workchoices legislation sought to differentiate cases which attract the jurisdiction under Part 12 of the Act and those that do not. That is, it happens, that the authorities seek to distinguish between cases in which, on one hand:

• the employer’s conduct has some degree of standing in the causal chain that brings about the resignation; but

• where the employer’s conduct did not otherwise seek to bear oppressively upon the employee’s volition (either intentionally to bring about the resignation or by some other oppressive or repugnant conduct such that the resignation was the probable result); and

on the other hand, where the employer’s conduct:

• has as its intention the goal to bring about the resignation directly; or

• in all probability resulted in the resignation, for reason of its particular oppressive or repugnant character and/or its impact upon the employee’s volition.

It is only when these latter circumstances are met that it can be said that the employer’s conduct or course of conduct was the principal operative reason for the resignation, such that the termination can be said to have been at the initiative of the employer.

The employer’s conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.

If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.

But not all the species of the conduct of an employer have the probable result of the employee’s resignation or make the resignation, on an objective view, a reasonable response to the employer’s conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer. 36

…

To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of “forced”.

In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd 37:

“As to ‘compulsion’, it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee’s head.” 38

That said, to describe an employer’s conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.

Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of ‘force’ will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.

I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.

It would appear to me, then, that on an ordinary or natural reading of the term “forced”, an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.” 39

[39] It now falls to me, on the balance of probabilities, to determine what actually occurred in the ending of the employment relationship between Mr Daffey and MSS. I am guided by the views expressed by Dowsett J in Pawel.

[40] On the evidence and materials before me, I am unable to conclude that Mr Daffey’s employment was terminated at the initiative of MSS based on any conduct or pattern of conduct by the Company aimed at bringing about his resignation.

[41] In reaching the above conclusion, I have formed the view that the evidence of Mr Burleigh is to be preferred over that of Mr Daffey where such evidence is in conflict. The thrust of Mr Burleigh’s evidence appears to me to be both candid and credible in relation to his dealings with Mr Daffey. In particular, I accept his evidence that Mr Daffey was never going to suffer a decrease in his pay and was never intended to be moved to a site performing security guard duties. The worst scenario facing Mr Daffey was the initial plan by the Company to redeploy him to a site as a Supervisor. In the light of Mr Daffey’s objections, the Company progressively adopted an approach designed to satisfy Mr Daffey and to retain him in employment.

[42] In preferring the evidence of Mr Burleigh over that of Mr Daffey, I do not impute any intentional act on Mr Daffey’s part to mislead the Tribunal. I accept that he has an honestly derived difference in his memory of events to that Mr Burleigh. His interpretation of the Company’s actions and intentions in relation to his continued employment was clouded by his refusal to accept that his performance was in any way lacking.

[43] I have no reason to doubt the evidence of Mr Ottrey also but that evidence has been of limited utility to me in deciding the jurisdictional point.

[44] From the evidence and materials before me, I have deduced that the Company made every effort to accommodate Mr Daffey within the confines of its concerns about performance issues related to him. This is particularly evidenced by the offer made to Mr Daffey to continue in his old position subject to certain conditions. Mr Daffey’s request for further time to consider his options was, on the face of it, reasonable but the granting of extra time would seem to lack utility given that the proposed conditions to be imposed on him had not yet been formulated. It is my view that from 1 December 2010, Mr Daffey felt deeply aggrieved by the performance allegations against him and by 10 December 2010 the employment relationship had broken down to such a degree that he tendered his resignation. It is also my view that by 10 December 2010, Mr Burleigh and the Company had run out of patience with Mr Daffey and were in no mood to seek to dissuade him from resigning.

[45] His action in resigning was objectively unwise and I think Mr Daffey now understands the unwisdom of his action. However, his resignation was not desired by the Company and was not forced on Mr Daffey by any action of the Company. The resignation was entirely voluntary and I so find. Therefore the Tribunal has no jurisdiction to hear Mr Daffey’s substantive application.

[46] Mr Daffey’s application for relief is therefore dismissed. An order reflecting this decision is in PR510822.

COMMISSIONER

Appearances:

R Daffey, the Applicant.

M Crawley, solicitor for the Respondent.

Hearing details:

2011.

Darwin:

May 17.

 1   Exhibit Daffey 1.

 2   Transcript PN476.

 3   Transcript PN477.

 4   Transcript PN478.

 5   Transcript PN479.

 6   Transcript PN480.

 7   Transcript PNs483-485.

 8   Transcript PN489.

 9   Transcript PNs490-491.

 10   Transcript PNs507-509.

 11   Transcript PN514.

 12   Transcript PNs518-519.

 13   Transcript PN526 and following.

 14   Transcript PN539.

 15   Transcript PN556.

 16   Exhibit MSS 1.

 17   Exhibit MSS 2.

 18   Transcript PN746.

 19   Transcript PN748.

 20   Transcript PN758.

 21   Transcript PN800.

 22   Transcript PN807.

 23 62 IR 200 (1995).

 24 62 IR 200 at pp205-206.

 25 70 IR 109 (1996).

 26 94 IR 375 (1999).

 27   Print S4014, 14 March 2000.

 28   Print Q0008, 9 April 1998.

 29   Print N6999, 9 December 1996.

 30   FCA 1660 (1999) at para 58.

 31   PR973462, 11 August 2006 (Giudice P, Watson VP, Cribb C).

 32   Mohazab at page 205.

 33   PR973462, above n 75 at para 23.

 34   PR974460, 25 October 2006.

 35   PR980573, 20 March 2008.

 36   See A.S. Doumit and ABB Engineering Construction Pty Limited, Munro J, Duncan SDP, Merriman C, 9 Decemebr 1996 [Print N6999]at PN58

 37   Unreported V381 of 1999, 10 December 1999, Branson J, Marshall J, Dowsett J

 38   Ibid at paragraph 59 per Dowsett J

 39   PR980573 at paras 46-50, 55-60.

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<Price code C, PR510821>