Rosauro Gapuzan v Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove
[2024] FWC 695
•18 MARCH 2024
| [2024] FWC 695 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Rosauro Gapuzan
v
Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove
(C2024/645)
| COMMISSIONER SIMPSON | BRISBANE, 18 MARCH 2024 |
Application to deal with contraventions involving dismissal – Jurisdictional Objection Applicant resigned – Objection upheld – Application dismissed
On 2 February 2024, Mr Rosauro Gapuzan (the Applicant) applied to the Fair Work Commission (the Commission) under s.365 of the Fair Work Act 2009 (the Act) for an application to deal with a general protections dispute involving dismissal. The Respondent in the matter was named as Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Grove (the Respondent).
The Respondent raised a jurisdictional objection that the Applicant was not dismissed.
On 12 February 2024, I issued a Notice of Listing and Directions to the parties regarding the jurisdictional objection. A jurisdictional hearing was listed on 14 March 2024.
Submissions were issued by the parties concerning the Respondent’s application to be represented and I issued a decision in matter [2024] FWC 518 granting the Respondent permission to be represented by a lawyer.
The Applicant represented himself at the hearing on 14 March and the Respondent was represented by Ms Leyla Dixon of Minter Ellison Lawyers.
RELEVANT LEGISLATION
Section 386(1) of the Act states:
“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.”
EVIDENCE
The Applicant relied on written submissions opposing the jurisdictional objection filed on 19 February 2024 [1], 27 February [2] and further submissions also filed on 27 February seeking an Interim Order.[3] The Respondent relied on its written submissions filed on 21 February 2024, along with the witness statement of Mr Paul Richter,[4] a Services Superintendent employed by the Respondent. Mr Richter was cross examined by the Applicant at the hearing. The Applicant was not required for cross examination.
The Applicant commenced employment with the Respondent on 19 September 2023 as a Maintenance Planner at the Respondent’s mine based in Gove, Northern Territory.
Application for Annual Leave 15 November 2023
On 15 November 2023, the Applicant made an annual leave request for the period from 27 December 2023 to 29 December 2023.
Mr Richter gave evidence that the Christmas and New Year period is a popular time for employees to take annual leave, as many employees wish to take leave and fly out of Gove for that period. Mr Richter said that leave requests are usually received well in advance, as the Mine remains operational over Christmas, and most employees including employees in the Warehouse, request time off over Christmas up to 12 months in advance.
Mr Richter gave evidence that by the time the Applicant made his request, the team he worked in at the Warehouse was already short on numbers and there was already only a skeleton crew to support operations. Mr Richter said with those numbers, they were counting on the Applicant to assist with other areas of the Warehouse while there were lower numbers of staff over Christmas, particularly because he had only started working at the Mine three months earlier.
Mr Richter said the staff at the Warehouse who had already been approved to take annual leave over Christmas had all applied and had their requests for leave approved prior to the Applicant requesting leave.
Application for Annual Leave rejected 29 November
Mr Richter said on 28 November the Applicants request for Annual Leave was escalated to him to review. Mr Richter said he reviewed the request and decided to refuse it because the Warehouse required the Applicant to work on those days. which was refused by the Respondent on 29 November 2023.
Further Application for Annual Leave 30 November
Mr Richter said that on 30 November 2023 the Applicant submitted another request for Annual Leave for the same dates from 27 December to 29 December 2023.
Further Application for Annual Leave rejected a second time on 13 December
Mr Richter said that on 13 December 2023 he reviewed the second request, and he said that it was exactly the same as the first request, and contained no additional information and he decided to refuse the second request for the same reasons. The Applicant submitted that the email rejecting his application included a notation that a return ticket had been purchased and there was to be a medical check up in Perth. Mr Richter said that he did not know that information at the time however after the second rejection of the leave application he decided to request that he have a meeting with the Applicant to find out what this was about.
Email from Applicant 14 December
On 14 December 2023, the Applicant sent the following email to Coral Mason, his supervisor in the Warehouse:
“G’day,
I have applied for a leave on 27 to 29 Dec and bought return ticket to Perth.
This leave of absence is for medical check up for diabetes, hypertension and recurring cough in Perth where my health records are. It had been rejected twice.
I also need some fresh air (peace of mind, relieve stress and anxiety)
Best regards,”
Mr Richter said in his statement that he was confused by the Applicant making another request for the same period and he believed that the Applicant would have been aware that the Warehouse was already short staffed.
15 December 2023
Mr Richter said that on 15 December he spoke to Ms Mason and asked her to speak to the Applicant and request he attend a meeting at 7.45am on 18 December 2023 to discuss his request. Mr Richter said that he had asked Ms Mason whether the Applicant had said anything to her about the request and he said Ms Mason had said that he had not. In the course of cross examination the Applicant challenged Mr Richter about his evidence that Mr Richter was unaware of the reasons for his request for Annual Leave until the morning of the meeting of 18 December. The Applicant referred Mr Richter to his email to Ms Mason on 14 December. Mr Richter was clear he did not know anything about the Applicant’s reasons for the leave until the morning of 18 December and explained he only sees the one page request in the workflow system and if there were attached documents he did not see them. He said he asked Ms Mason to arrange the meeting.
18 December Meeting between the Applicant, Mr Richter and Ms Mason and subsequent resignation
The Applicant attended a meeting with Mr Richter and Ms Mason on 18 December 2023 to discuss the annual leave request. Mr Richter said that at 7.45am on the morning of 18 December he attended the meeting. Mr Richter said that at the meeting he explained to the Applicant that his request for annual leave had been refused for operational reasons. The Applicant said he understood he was not entitled to annual leave as per the Respondent’s policy as annual leave must be for at least seven days and he did not have enough leave accumulated. Mr Richter rejected this saying it is common for employees to take small amounts of annual leave.
Mr Richter said that the Applicant explained to him at the meeting that he wanted the leave as he needed to go to Perth for a three-month check-up, and his medical records were in Perth and that he had a cough. Mr Richter said that he then asked the Applicant why the check-up had to occur at that time during the Christmas break and whether it was a medical emergency. Mr Richter said that he also asked the Applicant why he could not take leave either before Christmas or after Christmas in January. Mr Richter said that both of those times were available for the Applicant to take leave, and if he updated his request to request Annual Leave in the week before or the week after Christmas he would have approved it.
Mr Richter said the Applicant told him it was not a medical emergency and that his family had flown out to Perth on 13 December 2023. Mr Richter said that he also asked the Applicant whether he had sought assistance at the local hospital in Nhulunbuy or the local doctor’s surgery. Mr Richter said he also asked the Applicant why, given he had relocated to Gove three months earlier, he had not made some arrangements for assistance locally and to have any records transferred to Gove. Mr Richter said that the Applicant told him he had not sought assistance from the hospital or the local doctors surgery. Mr Richter said that the Applicant did not say to him that he was unwell and needed medical assistance.
Mr Richter said that he then told the Applicant that if it was a medical emergency he could take the three days as personal leave, but that he would need to provide a medical certificate. Mr Richter said the Applicant again said it was not an emergency and that he was looking after his physical and mental health.
Mr Richter said that the Applicant did not otherwise provide him with any information to indicate that the medical appointments he had made were for a medical emergency or that he needed to attend the appointments because he was unwell. Mr Richter said that at the conclusion of the meeting the Applicant appeared to accept the refusal of the annual leave request. Mr Richter said the Applicant’s final comment when he left the meeting was that he intended to remain at work and would not take the leave he had requested. Mr Richter said that the Applicant was not emotional or upset at any point during the meeting and Mr Richter said he considered the meeting was a regular conversation about the refusal of his annual leave request. Mr Richter said that there was nothing in the Applicant’s demeanour to indicate that he was upset or angry about the explanation he provided to the Applicant for the refusal of the Annual Leave request.
Mr Richter repeated in his oral evidence that he invited the Applicant to take the leave as personal leave if he required medical attention due to his health but that the Applicant declined to do so. The Applicant rejected this saying that if he had been invited to take personal leave, he would have taken it. The Applicant said Mr Richter said to him that he would only grant leave of absence if it was an emergency. The Applicant said he put a question to Mr Richter saying that he said to Mr Richter in the meeting that he needed to go to Perth for a medical check-up and Mr Richter accepted that.
The Applicant said Mr Richter was pressuring him to work on the days he wanted to take the leave even though he knew about the reasons the Applicant wanted the leave. Mr Richter said he knew that the Applicant wanted to go on holidays, and that he wanted to go to Perth, but did not know about the medical appointment until just before the meeting. The Applicant said that he was forced to resign even before the meeting on 18 December due to his extreme distress and concerns for his safety. Mr Richter said in his oral evidence he explained at the meeting the operational reasons why his leave application was refused, however that if it was a medical emergency he could take the three days as personal leave.
Later the same day, at 11:57am, the Applicant sent the following email to Mr Richter copying in Ms Mason under the heading Notice of Resignation:
“G’day,
I understand I am on probation and my performance on the job had not been satisfactory. I am sorry I had mistakes in going to Gove House and have not sort out things in my resettlement here. I take this opportunity to thank Rio Tinto for giving me the chance to work here and for the warehouse team who had been patient, understanding and supported me while I carry out my assigned task, learning and continuing improvement to the best of my ability. This is my notice of resignation. I am unable to continue working with motivation, peace of mind and dedication under a management who does not care for the health, safety and well-being of its worker.
Best regards,”
19 December Acceptance of Resignation and filing of a general protections application
At 12:52pm on 19 December Mr Richter sent an email to the Applicant under the heading Notice of Resignation accepting the resignation and acknowledging the one-month notice period required by the Applicant’s contract noting the Applicant’s final day of work was 17 January 2024. The email reads as follows:
“Ross,
I acknowledge receipt and accept your decision to resign.
Based on you providing 1 month’s notice of termination, your final date of employment will be 17th January, 2024.
Though you have indicated in your email that your health, safety and wellbeing was not important I assure you that this is most important as it is to all people who work at Gove.
I wish you all the best with your future endeavours.
Regards”
At 1:19pm on 19 December the Applicant sent the following email to Mr Richter copying in Ms Mason under the heading Notice of Resignation.
“G’day,
Please be informed I have not cancelled my flight back home to Perth and intend to go ahead for a medical checkup. I will be absent for 3 days. My diabetes if not controlled with regular blood test, medication and doctor consultation would complicate to kidney/liver damage, stroke and heart disease.
When I fill up my Take 5 form, first question Am I fit to work? I am not sure without medical advice. A driver had been charged killing five people by crashing into Daylesford pub in Victoria after allegedly ignoring repeated diabetes alerts about his low glucose levels. During the Covid, a worker is not allowed to come to work if he had a cough or fever, so if health, safety and well-being is important, why was my application denied? I missed my medication for 3 days now because the pharmacy run out of stock, I’ll be getting it today.
Best regards,”
Mr Richter said that he did not receive any communication from the Applicant that referred to his resignation the previous day.
At 2:14PM Australian Eastern Daylight Time on 19 December 2023 the Applicant filed a section 372 general protections application with the Fair Work Commission seeking the following remedies against the Respondent:
1. Return to Perth all items relocated to Nhulunbuy Gove.
2. Reimburse family expense (flights/accommodation) returning to Perth Or reinstate/disregard notice of resignation and enforce workplace rights and protection laws.
The Applicant did not serve this application on the Respondent at the time it was filed.
20 December 2023
Mr Richter said that on or around 20 December 2023 he entered the Applicant’s resignation into the system, and he had another discussion with the Applicant and Ms Mason about his leave request, at his desk. Mr Richter said that given the Applicant had said in his email to him on 19 December 2023 that he was going back to Perth even though his leave had not been approved, Mr Richter said he told him that because he had resigned and clearly did not want to be a part of the team, he could take the three days leave as annual or personal leave. Mr Richter said his decision to allow the Applicant to take leave at that time did leave the team short staffed, however in the circumstances where the Applicant’s resignation made it clear that he did not want to be in Gove or assist the team, and that the Applicant indicated he was going to be absent from work on those three days whether Mr Richter approved the leave or not, he thought it was better to simply allow the Applicant to go as his attitude indicated to Mr Richter that he probably was not going to be much help to the team over those days anyway.
Mr Richter said they discussed the Applicant’s resignation in the context of his decision to go to Perth despite his leave request not being approved, Mr Richter said the Applicant did not say anything to indicate that he did not intend to go ahead with his resignation. Mr Richter said as had been the case before, the Applicant’s demeanour was calm and collected in this meeting. Mr Richter said the Applicant did not show any sign of being distressed about the conversation or unwell.
Mr Richter said on the same day they also had a brief discussion about the Applicant’s relocation costs. Mr Richter said he advised the Applicant that the Respondent would cover the costs of the Applicant relocating to Gove, but that it would not be responsible for moving out of Gove. Mr Richter said the requirement for the Applicant to be responsible to repay these costs was in fact more favourable than the obligation outlined in his contract which would have required him to repay both the inbound and outbound relocation costs. Mr Richter said that in response to his comment that he would have to pay the outbound relocation costs, the Applicant said words to the effect of ‘yeah righto’. Mr Richter said that was the end of the conversation and he did not observe that the Applicant was upset or angry during this discussion.
The Applicant put to Mr Richter that they had a conversation on 20 December about relocation costs and the Applicant raised withdrawing his resignation in that conversation. Mr Richter rejected that saying at the end of the conversation about the relocation costs the Applicant just said ‘yeah righto’. The Applicant disputed he said that. Mr Richter said in his oral evidence that he said to the Applicant the Respondent would accept the inbound costs of freight with an approximate value of $21,000 and the Applicant would be responsible for the costs of going to where he wanted to go. The Applicant claimed he sought to withdraw his resignation in the discussion with Mr Richter on 20 December. Mr Richter rejected that claim stating that the first time he was aware that the Applicant wanted to withdraw his resignation was after he came back from leave, and it was the email on 4 January. Mr Richter said the Applicant did not raise wanting to withdraw his resignation and it was Mr Richter himself that went to speak to the Applicant about his freight entitlements and who was paying for what.
Applicant worked his normal roster
Mr Richter said that between 18 and 22 December the Applicant worked his normal roster, and he said he was aware that the Applicant flew out of Gove on 23 December 2023. Mr Richter said that the Applicant was fit for work and did not take any personal leave due to illness or otherwise in this period.
Annual Leave 27 to 29 December and return to work 2 January 2024
Mr Richter said that the Applicant took annual leave between 27 and 29 December and returned to work on 2 January 2024. Mr Richter said he had no further communication with the Applicant in the period from 20 December 2023 to 3 January 2024.
2 January 2024 Email to Fair Work Commission
On 2 January 2024 the Commission served a copy of the Applicant’s section 372 general protections application on the Respondent. On the same date the Applicant sent an email to the Commission in relation to the section 372 application filed on 19 December 2023 stating that the employer is terminating his employment on 17 January 2024, and stating this was an urgent request to stop the dismissal because the case (section 372 application) still had not been heard and decided.
3 January 2024
On 3 January 2024 the section 372 application was allocated to my chambers.
4 January 2024 Email from Applicant seeking to withdraw resignation
Mr Richter said that on 4 January 2024 he received an email from the Applicant also copied to Ms Mason and Mr Harding with the subject line ‘Withdraw Notice of Resignation’. The email reads as follows:
‘Good day,
I had been unwell and too distress to think rationally. I was mistaken and would like to take back my notice of resignation to continue working.
The termination of my employment would place my family in considerable financial hardship. I am unable to pay for the return of my car and belongings to Perth. My wife would be unable to start working at the Gove Hospital and the well being of my two children will be affected.’
Mr Richter said that he did not respond to the email but instead provided it to the Respondent’s HR as he said he had been made aware that the Applicant had lodged a dispute with the Fair Work Commission. Mr Richter said he commenced a period of annual leave on 11 January 2024, however was aware that the Applicant worked up until his final day on 17 January 2024.
15 January 2024 FWC section 372 Private Conference
On 15 January 2024 I conducted a private conference between the parties in relation to the section 372 application and the matter could not be resolved.
CONSIDERATION
The Applicant raised a question during the proceedings concerning what would happen to the other allegations of adverse action that are contained in his general protections claim if the Respondent’s jurisdictional objection succeeded. I explained to the Applicant that in the event that it was determined he was not dismissed, that would not extinguish his ability to agitate other claims of adverse action under section 372. The Applicant foreshadowed that in light of that information he may wish to disregard the section 365 application, however he did not ultimately seek to formally withdraw the application. I indicated to the parties in the circumstances the appropriate course was for the jurisdictional matter to be finally determined.
The Respondent’s submissions proceeded on the basis that the Applicant primarily contended his dismissal was the result of a forced resignation in accordance with s.386(1)(b) of the Act, but that he also contended that his resignation was ineffective in accordance with s.386(1)(a). In any event, the Respondent submitted that the Applicant was not dismissed within the meaning of either limb of s.386(1). The Applicant accepted that he resigned but submitted that he was forced to do so because of the Respondent’s conduct in denying his annual leave. The Applicant stated that the purpose of his annual leave request was to undergo a medical examination in relation to his diabetes.
Section 386(1)(a) – was the employment terminated on the employers initiative?
The Applicant referred to Rutter v Anglogold Ashanti Australia Limited (Rutter),[5] in which Deputy President O’Keefe held that an emailed resignation given at a time where the employee was in a state of high stress did not constitute a valid resignation. The Applicant also relied on the decision of the Full Bench in Bupa Aged Care Australia Pty Ltd v Tavassoli (Bupa).[6] In this case, the Full Bench outlined the circumstances in which a ‘dismissal’ occurs under either s.386(1)(a) or (b) of the Act. In accordance with Bupa, there may be a dismissal under s.386(1)(a) where a resignation was offered, but the resignation is not effective because it was expressed in the “heat of the moment” when the employee was in a state of emotional stress or confusion. A dismissal under s.386(1)(b) may occur where the conduct of the employer had the intention of bringing the employment to an end, or where termination of the employment was the probable result of the conduct.
It was submitted by the Applicant that the Respondent had no regard to his health, safety and wellbeing, and forced his resignation by denying him the opportunity to attend a medical examination, displaying “apathy and indifference” towards his condition. He stated that he was experiencing “extreme distress” ahead of the meeting on 18 December 2023.
The Respondent submitted that as the resignation was plain in the email and without evidence of anger or upset, they were under no obligation to confirm the Applicant’s intention to resign as per Bupa.
The Respondent distinguished the case of Rutter from the present facts as in that case the Applicant had rescinded her resignation much earlier, she was under much greater apparent stress and had provided medical evidence of that stress. The Respondent contended that there was no evidence of any emotional stress or mental confusion which would impede the Applicant’s ability to clearly understand his actions in this case. The Respondent submitted that there were no special circumstances in this case.
The Respondent contended that the Applicant had advised during their meeting that the leave was required in order for him to attend a regular three-monthly checkup in relation to his condition. The Respondent said if this were true, it was not reflected in the Applicant’s medical history which indicated he last saw his doctor in March 2023. In response to this, the Applicant stated that not all examinations are recorded in his medical history, and the Respondent would not have offered him permanent employment if he had not undergone a medical assessment some time in June 2023. The Applicant also stated that he was required to undergo a medical checkup every time he performed contract work, which would not be included in his doctor’s records.
The Applicant denied that Mr Richter had said during the meeting that he was able to use personal leave for his medical examination. He stated that had he been offered this, he would have used personal leave. Instead, the Applicant contended that Mr Richter said that leave would only be granted in an emergency. Additionally, the Applicant contended that Mr Richter had an unconscious bias in immediately accepting his resignation and setting the final day of his employment.
The cases of Bupa and Rutter are relevant to my consideration of whether the Applicant’s resignation can be considered to have been given in the “heat of the moment” or in a “state of high stress.”
In the current circumstances, there is no supporting medical evidence provided by the Applicant that demonstrates a mental state of high anxiety sufficient to displace the voluntary nature of the resignation. I therefore agree with the Respondent’s submission that Rutter can be distinguished as there was specific medical evidence of the Applicant’s state of mind in support of her case. The evidence the Applicant relied on was the email he sent on 14 December 2023, which stated “I also need some fresh air (peace of mind, relieve stress and anxiety)” and the resignation email of 18 December 2023 which stated “I am unable to continue working with motivation, peace of mind and dedication under a management who does not care for the health, safety and well-being of its worker.”
The Applicant referred to the case of Bupa in support of his assertion where the Full Bench in Bupa found that:
“…if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer…”[7]
In the circumstances and based on the evidence of Mr Richter, I can see no reason that the Respondent would have been obligated to clarify the intention of the Applicant’s resignation email. It was clear that the Applicant intended the email to act as a resignation. I prefer the evidence of Mr Richter that the Applicant did not raise with him that wished to withdraw his resignation prior to taking leave. Mr Richter was clear and consistent on this point, as was his evidence generally. The email the Applicant sent to the Respondent on 4 January 2024 is also consistent with this conclusion as it makes no mention of having sought to withdraw the resignation at an earlier point with the Respondent. It is notable that the general protections application filed by the Applicant on 19 December 2023 but not served on the Respondent until 2 January 2024 sought reimbursement for relocation costs as the primary remedy, and reinstatement in the alternative. The failure of the Applicant to seek to formally withdraw the resignation until over two weeks later lends credibility to the Respondent’s contention that the decision was voluntary.
Further, analogous to the circumstances in Bevis, there was a 17-day period between when the Applicant resigned by email, to when it was rescinded. As the Respondent set out, there was also a 24 hour period between the resignation and the acceptance of the resignation where he took no action to retract the resignation. This weighs against a finding that the Applicant’s decision was made in the heat of the moment.
I am inclined to accept the evidence of Mr Richter that the Applicant did not take time off work immediately before or after the meeting on 18 December, and that he did not appear distressed or unwell in that meeting, and that there were no heated exchanges in the meeting. The Applicant’s own evidence was to the effect that the circumstances were not an emergency. I also accept the evidence of Mr Richter that the Applicant indicated toward the end of the meeting that he would be staying and not taking leave. The acceptance of the resignation was sent approximately 25 hours later. The email then sent by the Applicant to the employer did not then seek to withdraw the resignation.
Section 386(1)(b) – was the Applicant forced to resign?
Referring to Bupa, the Respondent submitted that for a dismissal to have occurred under s.386(1)(b), the Applicant must demonstrate that the Respondent’s conduct “directly and consequentially” resulted in the termination of his employment, and had the Respondent not engaged in this conduct, he would have remained employed.
The Respondent submitted that the denial of the annual leave applied for was due to operational requirements given that the warehouse was short staffed during the Christmas period and the Respondent was relying on the Applicant to be available to perform his role. They submitted that the other leave had already been approved prior to the Applicant commencing employment, and that the Applicant’s requests for leave did not contain any information in relation to attending a routine three monthly medical check-up. The Applicant provided evidence in his submissions that he had noted in his leave requests “return ticket purchased” and “medical check-up in Perth”[8] on 1 December 2023 and in the email he sent on 14 December 2023 which stated “…This leave of absence is for medical check up for diabetes, hypertension and recurring cough in Perth where my health records are.” In the meeting of 18 December 2023, the Respondent submitted that the Applicant provided no explanation as to why he would only be able to attend the medical check ups during the busy Christmas period.
In submissions, the Respondent also raised the query of why the Applicant only applied for the leave he required on 15 November 2023, when he would have been aware of the requirement of needing to have the check-ups every three months when he commenced employment in September 2023.
The Respondent submitted that at the conclusion of the meeting, the Applicant confirmed that he would work during the Christmas period and did not appear emotional or upset. The resignation was received approximately four hours after the meeting and did not contain emotional language, nor refer directly to the refusal of annual leave as the reason for the resignation. The acknowledgement and acceptance of the resignation was communicated approximately 24 hours later, during which time the Applicant had taken no steps to rescind his resignation until 4 January 2024, 17 days after receipt.
Reference was made to the case of Ashton v Consumer Law Centre (Ashton)[9] which set out that lack of satisfaction “…with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.” The Respondent submitted that based on this case, it cannot reasonably be said that the Applicant was forced to resign due to the management action of denying an application for leave during the well-known busy period.
The Respondent submitted that the Applicant had other options open to him, including investigating other places to have his medical check performed, applying for other dates to have the medical check performed by his preferred doctor or raising an internal dispute about the denial of the request for his preferred dates. By the Applicant’s own evidence, he has had other health checks performed as part of commencing employment with the Respondent and for contract work so not all checks are required to be performed by Dr Khan.
The Respondent further referred to my decision of Bevis v Dust Collection Services Pty Ltd (Bevis)[10] in which I found “…given the significant period of time between his resignation and his attempt to retract his resignation 17 days later it cannot be said the resignation was in the heat of the moment.” Bevis is highly analogous to the current case as there is a very similar period from when the Applicant resigned to when he rescinded the resignation, and both Applicants raised concerns with ‘safety’ during their resignation or later Commission matter.
The authorities indicate that the consideration must be whether the Respondent engaged in the conduct with the intention of bringing the employment to an end or whether termination was the probable result of the Respondent’s conduct such that the employee had no effective or real choice but to resign.
The Applicant referred to the Respondent’s actions in denying the annual leave request as “recklessly endangering” him “by rejecting [the] request for a medical check-up and ensuring that [he was] fit to work.” The Applicant also submitted that he had already missed three days of medication because the only pharmacy could not dispense the prescription due to network outage.
The Applicant also raised in his resignation email that he was disappointed that the Respondent “does not care for the health, safety and well-being of its worker” and in his submissions has clarified that this referred to the denial of the leave application.
The case of Ashton is clear that disagreement with a reasonable management decision is not grounds to uphold a resignation as being forced. In this case, the facts are clear. Even though the Respondent did not engage with the Applicant to consider alternatives to the specific dates applied for, as they set out as options in their submissions, and there is evidence that they were aware of the reason for the annual leave, it is not unreasonable to have denied the leave request.
Christmas is a period where many employees seek leave to spend time with their families over the holidays, and as per the Respondent’s submissions, many apply 12 months in advance to ensure they’re able to secure the time off. This is not an uncommon practice across the broader workforce. The Applicant’s first application was made a total of 6 weeks in advance of him needing the leave, and two and a half months after gaining employment, leaving the employer little time to organise coverage for the Applicant and making it not unreasonable for the time of year, to deny the request.
Therefore, the Applicant’s argument that the resignation was the probable result of the Respondent’s conduct is difficult to accept. I am satisfied that Mr Richter did not refuse the annual leave request with an intent to bring the employment to an end. I am satisfied from the evidence that Mr Richter had in fact advised the Applicant that if he needed to take the leave because it was a medical emergency the leave would be approved. He also offered the Applicant the ability to take leave in periods of time shortly before or after the time he did apply. I am not satisfied the Applicant had no choice but to resign, and his decision to tender a resignation was a voluntary decision.
CONCLUSION
For the reasons set out above I am not satisfied that the Applicant was dismissed, and on that basis the jurisdictional objection is upheld, and the section 365 application is dismissed as the Commission has no power to deal with it. An order to this effect with be issued separately and concurrently with this decision.
COMMISSIONER
Appearances:
Mr Rosauro Gapuzan on his own behalf.
Ms Leyla Dixon of MinterEllison for the Respondent.
Hearing details:
2024
By Microsoft Teams Video
14 March
[1] Exhibit 2
[2] Exhibit 3
[3] Exhibit 4
[4] Exhibit 1
[5] [2023] FWC 1891.
[6] [2017] FWCFB 3941.
[7] [2023] FWCFB 3941 at [47].
[8] Applicant submissions dated 27 February 2023, Annexure 2.
[9] [2010] FWA 9356 at [59].
[10] [2021] FWC 2813 at [164].
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