Senatore v Leighton Contractors Pty Ltd

[2014] FWC 6111

[2014] FWC 6111

FAIR WORK COMMISSION

DECISION

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

Senatore
v
Leighton Contractors Pty Ltd
(U2014/9950)

VICE PRESIDENT CATANZARITI BRISBANE, 3 SEPTEMBER 2014

Application for relief from unfair dismissal - jurisdiction - resignation - no termination in the circumstances.

[1] This decision is an edited version of a decision given in transcript in Brisbane on 3 September 2014.

[2] Mr Domenico Senatore (the Applicant) lodged an application for unfair dismissal remedy on 11 June 2014. Leighton Contractors Pty Ltd (the Respondent) has made a jurisdictional objection on the basis that the applicant was not dismissed within the meaning of s.386 of the Fair Work Act 2009 (the Act).

[3] During the course of the hearing, the Applicant gave evidence in his own case. Ms Rebecca Haldane, People and Capability Manager for the Respondent, gave evidence for the Respondent. Ms Haldane’s witness statement was not disputed by the Applicant.

[4] The Respondent submits that the Applicant resigned his employment on 28 May 2014. Prior to his resignation, the Applicant had contacted Ms Haldane on 5 May 2014 to discuss various issues he was encountering, including that he felt he was being bullied by other employees. On the same day, the Applicant commenced a period of sick leave followed by a further period of leave. On 22 May 2014 the Applicant attended a meeting with various employees of the Respondent in order to address the matters that the Applicant originally raised on 5 May 2014. The meeting resulted in a doctor’s appointment being made for the Applicant by Ms Haldane in order to facilitate a return to work plan. The appointment was made for 26 May 2014.

[5] On the day of the scheduled doctor’s appointment, the Applicant contacted the Respondent and advised that he would not attend the doctor’s appointment as he did not think it would be worthwhile, and advised that he wanted to resign from his employment in order to begin looking for other work. Ms Haldane advised the Applicant to attend his doctor’s appointment to assist with his recovery and return to work. The Applicant subsequently contacted Ms Haldane to advise that he would make the appointment.

[6] On 27 May 2014, the Applicant contacted Ms Haldane to advise that the doctor had told him that he will need to take at least four weeks off work before he could return to work. The Applicant told Ms Haldane that he needed money and therefore tendered his resignation. Ms Haldane advised the Applicant that she was not comfortable accepting his resignation and asked him to consider his position, talk to his family and consider the return to work plan approach. On 28 May 2014, the Applicant emailed Ms Haldane his termination letter.

[7] In order for the Fair Work Commission to have jurisdiction in an application for unfair dismissal remedy, the applicant must have been dismissed. Section 386 of the Act defines the word “dismissed” as follows:

“(1) A person has been dismissed if:

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

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

(2) ...”

[8] The Applicant contends that he resigned from his employment but was forced to do so due to the conduct, or course of conduct, engaged in by his employer. While I am sympathetic to the applicant’s position, on the evidence before me I am unable to find that he was forced to resign from his employment due to the conduct of his employer. The Respondent took care to ensure that the Applicant’s resignation was fully considered, and advised the Applicant that it was not the only option available to him. The Respondent made a deliberate effort to communicate to the Applicant that it was willing to provide him with a return to work plan. Having considered the authorities and the circumstances of the matter before me, I am unable to find that the Respondent’s conduct or course of conduct forced the Applicant to resign and consequently that there was no dismissal.

[9] As there was no dismissal, the Fair Work Commission has no jurisdiction to hear an application for unfair dismissal remedy. The matter is dismissed.

VICE PRESIDENT

Appearances:

D Senatore appeared on his own behalf.

K Augustine and P Ryan from the Respondent.

Hearing details:

2014.

Brisbane:

September 3.

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