Stephen Gock v Bnp Paribas
[2023] FWC 3149
•29 NOVEMBER 2023
| [2023] FWC 3149 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Gock
v
Bnp Paribas
(U2023/7907)
| DEPUTY PRESIDENT BOYCE | SYDNEY, 29 NOVEMBER 2023 |
Application for an unfair dismissal remedy – jurisdictional objection – whether there was a “dismissal” within the meaning of s.386 of the Fair Work Act 2009 – no dismissal – no jurisdiction to determine Applicant’s claim – application dismissed.
Mr Stephen Gock (Applicant) has filed an unfair dismissal application (Application) under s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission). The Respondent to the Application is the Bnp Paribas (Respondent), the Applicant’s former employer.
The Respondent raises a jurisdictional objection to the Application, namely, that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Fair Work Act 2009 (Act). This decision concerns this jurisdictional objection.
At the hearing, the Applicant appeared for himself, and Mr Matthew Minucci, of Counsel, instructed by Mr Deegan Fitzharris, Partner, Shanahan Tudhope lawyers, appeared with permission for the Respondent.
Permission for legal representation
Permission for both parties to be legally represented was granted prior to the hearing.
Whilst the Applicant was legally represented prior to the hearing, including at the time he filed his submissions and evidence, he chose to represent himself at the hearing.
In Nicholas Williams and KTC Refrigeration & Air Conditioning Pty Ltd[1], a Full Bench of the Commission appears to suggest that where representation for a party to a proceeding before the Commission changes, so as to avoid unfairness and/or a the denial of procedural fairness, a Commissioner Member is expected to essentially run around in a series of ever decreasing circles and revisit whether representation for the other party (who continues to be represented) ought be maintained (the KTC Rule).
Whilst I am unable to identify any support for the KTC Rule under the Act (be it s.596, or otherwise), or the case law, I applied the KTC Rule in this case. It came to pass that permission for the Respondent’s to be legally represented was maintained, absent any objection from Mr Gock.[2]
Legislation and case law
The term “dismissed” (or dismissal) is defined under s.12 of the Act as having the meaning set out in s.386 of the Act.
Section 386(1) of the Act reads:
“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.”
The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is treated as a termination in which the action of the employer is the principal contributing factor (directly or consequentially) that leads to (or has the objective probable result of leading to) the termination of the employment relationship. That is, had the employer not taken the action that it did, the employee would have remained employed.[3]
Under s.386(1)(b) of the Act, a forced resignation occurs where an employee has no other choice but to resign. The onus is upon an employee to prove that their resignation was forced by their employer.[4] In other words, an employee must be able to prove on the balance of probabilities that his or her employer took relevant action/s with the intent, or objectively probable result, of bringing the employment relationship to an end.[5] The fact that a resignation may have been foreseeable, or a reasonable response to the actions of an employer, is not the test. Rather, the focus is upon whether the employee’s resignation was the objective probable result of his or her employer’s action/s having regard to, or in light of, other avenues or options equally open or available to the employee.
In normal circumstances, where unequivocal words of resignation are used or conveyed by an employee, an employer is entitled to immediately accept the resignation (without question) and act accordingly.[6] Further, once proffered, a resignation may not be withdrawn unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer. In other words, a resignation cannot be proffered by an employee and then unilaterally withdrawn prior to acceptance by an employer – the employer must always consent to its withdrawal.[7]
Factual findings
On the basis of the evidence before me, I make the factual findings that follow.
The Respondent provides financial solutions to individuals, professional clients, corporates and institutional investors.
The Applicant commenced employment with the Respondent on 19 February 2018 on a fixed term contract. On 1 August 2019, the Applicant became a permanent employee.
On 13 April 2022, the Applicant tendered his written resignation with the Respondent, effective 6 May 2022.
By way of letter dated 13 May 2022, the Applicant agreed to extend his notice of resignation until 11 November 2022, and take on a secondment role with the Respondent.
By way of letter dated 14 November 2022, the Applicant again agreed to extend his notice of resignation until 28 April 2023 (again in a secondment role).
By way of letter dated 1 May 2023, the Applicant yet again agreed to extend his notice of resignation until 31 July 2023 (again in a secondment role).
On 28 July 2023, the Applicant, through his lawyers, sent a letter to the Respondent which (in summary) advised:
a) the Applicant felt well-supported in his employment with the Respondent until “approximately 14 months ago”;
b) the Applicant had become aware that “his contemporaries” within [the Respondent] had been receiving salaries higher than his;
c) the Applicant is unmotivated;
d) the Applicant rescinded or revoked his resignation in April 2022, and undue pressure has been applied to him to continue to sign letters extending his notice of resignation;
e) the Applicant is now being forced to resign so that he can progress his career;
f) this is a case of genuine redundancy, and he wants a redundancy payment;
g) as an alternative to a redundancy payment, he wants a permanent and on-going role at the Respondent on a higher salary; and
h) if the Applicant’s demands are not agreed to, he will file an unfair dismissal application with the Fair Work Commission, and seek that the Respondent pay his legal costs in respect of such proceedings on an indemnity basis.
On 30 July 2023, the Applicant emailed Ms Lisa Wark, Human Resources Business Partner, and Mr David McKee, Head of Human Resources (Australia and New Zealand), advising them that:
a) they should have received his lawyer’s letter (of 28 July 2023) by now;
b) he has headed off to the snow until 3 August 2023;
c) he had hoped to give them a “heads up” about his lawyer’s letter before he went to the snow, but did not get around to it (either in person, over the phone, or online); and
d) he is happy to have a chat about his lawyer’s letter when it suits.
On 1 August 2023, the Respondent advised the Applicant that a further secondment has not been able to be secured, and that his employment would therefore come to an end on 31 July 2023 (as agreed in the 1 May 2023 letter, and referrable back to his resignation on 13 April 2022).
Consideration
In limiting my findings in this matter to the evidence and submissions of the parties that are necessarily relevant to the determination of the jurisdictional objection raised by the Respondent (i.e. whether or not the Applicant has been “dismissed”), I have adopted the general proposition or approach of ‘confinement’ stated by Callinan J in the High Court case of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd[8]:
“But as a general proposition, all civil courts, including intermediate appellate courts, should confine themselves to the issues which are necessary for the disposition of the case.”[9]
The Applicant contends that he revoked his resignation (made in writing on 13 April 2022) on 5 May 2022.[10] The difficulty here is that there is no evidence (documentary or otherwise) of such resignation revocation. The Respondent denies that the Applicant ever made it aware that he had revoked his resignation.
As stated in paragraph [12] above, once given, an employee’s resignation cannot be revoked without his or her employer’s approval. Nor can it be said, as a matter of law, that the Applicant’s acceptance of a secondment (by reference to the 13 May 2022 letter) gives rise to some form of automatic resignation revocation.
The 13 May 2022 letter acknowledges the Applicant’s resignation, confirms a delayed end date to that resignation, and identifies that the Applicant’s resignation date has been “future dated”. It also states:
“Please sign this letter indicating your agreement with your 6 month secondment to Risk ORM, and your revised end date with [the Respondent], and return it to Lisa Wark.”
The Applicant signed and dated the 13 May 2022 letter, straight below the words: “I, Stephen Gock, hereby agree to the terms stated in this letter”.
Both of the letters dated 14 November 2022 and 1 May 2023 refer to future dating, or extending, the Applicant’s original resignation notice period. And both of these letters are signed by the Applicant, straight below the words: “I, Stephen Gock, hereby agree to the terms stated in this letter”.
During cross-examination by Mr Minucci, including whilst being taken through each of the 13 May 2022, 14 November 2022, and 1 May 2023 letters, the Applicant acknowledged (admitted), the following:
a) he resigned in writing on 13 April 2022;
b) he signed each of the three letters;
c) he understood each of the three letters that he signed;
d) there was no ambiguity from his perspective in the words set out in the letters;
e) each letter acknowledged that the Applicant had resigned;
f) he agreed by signing each of the letters that his effective end date (by way of resignation) with the Respondent was being extended;
g) what he agreed to in writing (by signing the letters) is fundamentally different to his evidence as to his interactions with Mr McKee;
h) there is no suggestion in any of the letters that his resignation was withdrawn or revoked;
i) there is no suggestion of any guarantee with respect to on-going or continued employment with the Respondent at the end of each secondment or extension;
j) despite there being an active proposal for yet a further secondment with the Respondent post 31 July 2023, no agreement had been reached, and no further secondment letter had been issued; and
k) he agreed and understood that his employment came to an end by way of resignation on 31 July 2023, pursuant to the terms of his resignation on 13 April 2022, and the terms of the 1 May 2023 letter that he agreed to by signing same.[11]
In the High Court case of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[12], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ, state:
“[43] More recently, in words that are apposite to the present case, in Wilton v Farnworth, Latham CJ said:
"In the absence of fraud or some other of the special circumstances of the character mentioned, a man cannot escape the consequences of signing a document by saying, and proving, that he did not understand it. Unless he was prepared to take the chance of being bound by the terms of the document, whatever they might be, it was for him to protect himself by abstaining from signing the document until he understood it and was satisfied with it. Any weakening of these principles would make chaos of every-day business transactions."
[44] In Oceanic Sun Line Special Shipping Company Inc v Fay, Brennan J said:
"If a passenger signs and thereby binds himself to the terms of a contract of carriage containing a clause exempting the carrier from liability for loss arising out of the carriage, it is immaterial that the passenger did not trouble to discover the contents of the contract."
[45] It should not be overlooked that to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, as Latham CJ put it, whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it.”
In the Full Federal Court of Australia case of Murphy v Chapple[13], it is pointed out the “essential point” is that “unless some law provides otherwise, parties are free to contract as they see fit”.[14] I note that there is nothing unlawful contained in the 13 May 2022, 14 November 2022, and 1 May 2023 letters.
It follows that I find that the terms of the three letters signed by the Applicant are valid and enforceable on their terms, as between the Respondent and the Applicant. To repeat the words of Latham CJ in the High Court case of Wilton v Farnworth[15], “unless [the Applicant] was prepared to take the chance of being bound by the terms of the [letters], whatever they might be, it was for [him] to protect [himself] by abstaining from signing the document until [he] understood it and was satisfied with it”. Further, “[a person] may not trouble to inform himself of the contents of a document, but that fact does not deprive the party with whom he deals of the rights which the document gives to [them].”[16]
The 1 May 2023 letter, signed (and agreed to) by the Applicant, plainly identifies that the Applicant’s employment contract, and his employment relationship, with the Respondent would come to an end on 31 July 2023. I therefore ultimately find that the Applicant was not terminated (or dismissed) at the Respondent’s initiative (s.386(1)(a) of the Act), nor was he forced to resign (s.386(1)(b) of the Act). Indeed, there is no evidence whatsoever of any duress being applied to the Applicant to sign any of the 13 May 2022, 14 November 2022 and 1 May 2023 letters.
Conclusion
Given that I have found that the Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Act, the Commission has no jurisdiction (or power) to proceed any further with the Applicant’s case. I will therefore issue an Order dismissing the Applicant’s Application, which will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Mr Stephen Gock, appeared for herself.
Mr Matthew Minucci, of Counsel, instructed by Mr Deegan Fitzharris, Partner, Shanahan Tudhope lawyers, appeared with permission for the Respondent.
[1] [2023] FWCFB 194.
[2] Transcript, PN1-PN10.
[3] Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd [2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd [2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
[4] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941. See also Bruce v Fingal Glen Pty Ltd (in Liq)[2013] FWCFB 5279 and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680.
[5] Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, at [47].
[6] Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July 1999, and the authorities cited at 377-378, [12]-[16].
[7] Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586; Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia (1976) 176 CAR 884.
[8] (2006) 229 CLR 577.
[9] Ibid, at 634, [172].
[10] Exhibit A1, at [13].
[11] Transcript, PN236-PN316.
[12] (2004) 219 CLR 165; [2004] HCA 52.
[13] [2022] FCAFC 165.
[14] Ibid, at [31]. See also at [40].
[15] (1948) 76 CLR 646, at 649.
[16] Ibid.
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