Sudharson Thapaliya v The Arnhem Land Progress Aboriginal Corporation
[2024] FWC 1380
•28 MAY 2024
| [2024] FWC 1380 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal
Sudharson Thapaliya
v
The Arnhem Land Progress Aboriginal Corporation
(C2024/201)
| DEPUTY PRESIDENT ANDERSON | ADELAIDE, 28 MAY 2024 |
Application to deal with contraventions involving dismissal – jurisdiction – whether application out of time – extension granted – whether dismissed – resignation – whether forced resignation – conduct of parties – reliance on resignation reasonable – no forced resignation – no dismissal – jurisdictional objection upheld – application dismissed
Sudharson Thapaliya (Mr Thapaliya or the applicant) has made a general protections application to the Commission under s 365 of the Fair Work Act 2009 (Cth) (FW Act) alleging contraventions of the FW Act associated with an alleged dismissal.
Mr Thapaliya’s application is against The Arnhem Land Progress Aboriginal Corporation (the Corporation, the employer or the respondent).
The Corporation oppose the application. It filed a response on 5 March 2024 raising a jurisdictional issue (no dismissal). In its submissions, the Corporation raised a second jurisdictional issue (application out of time).
The decision of the Full Court of the Federal Court of Australia in Coles Supply Chain Pty Ltd v Milford[1] requires the Commission to determine a dispute about the fact of a dismissal from employment under s 365 of the FW Act before the Commission can exercise powers conferred by s 368. It is thus necessary to determine the two jurisdictional issues if Mr Thapaliya’s application is to proceed.
I issued directions on 3 April 2024 and heard the matter by video on 15 May 2024.
Prior to the hearing, Mr Thapaliya made a request that the matter be re-allocated to a “non-white/aboriginal to decide”.[2] The ground advanced was:
“I have right to get fair justice or trial. If trial is biased then discrimination will be excuse and decision will be white is always right. And please don’t tell me what law says, when genocide of aborigines happened there was law too.”
On 18 March 2024 I declined the request. I informed the parties that the Commission allocates matters on a non-discriminatory basis. At the hearing I invited Mr Thapaliya to draw to my attention any cultural sensitivities that may arise or be of concern to him in the conduct of proceedings. None were raised.
Mr Thapaliya was self-represented. The Corporation was represented by Mr Bradstock, Employment Relations Adviser.
I received evidence and submissions, including oral evidence from two persons:
Mr Thapaliya (applicant); and
Ms Nancy Morley (Area Manager).
Both witnesses were conscientious and respectful. Ms Morely had good recall and her evidence was measured and unembellished. Mr Thapaliya had reasonable recall but his belief in having been wronged led to generalisations and opinions about the motives or conduct of others. I treat those aspects of his evidence with some caution. Where conflict exists, I prefer the evidence of Ms Morley.
I make a further observation about Mr Thapaliya’s evidence. In his prepared statement[3] Mr Thapaliya refers to certain persons as “baby white”, “puppy white”, “mummy white”, “daddy white” and “grandad white”. Having heard the oral evidence, I do not consider these phrases warranted on cultural grounds. They are gratuitous references to persons involved in this matter. No matter how genuinely Mr Thapaliya feels that he was bullied or dismissed for racial reasons, insulting or irrelevant content in statements is inappropriate. I have regard to Mr Thapaliya’s evidence but not to those gratuitous epithets.
I declined to receive into evidence a statement from a Mr Damien Walmsley included in Mr Thapaliya’s materials on the basis that I had directed all witnesses to be present at the hearing and Mr Walmsley was not made available to give evidence. That statement was marked for identification but does not form part of the evidence in this matter.
Some (but not all) facts relevant to the jurisdictional issues are in dispute. To the extent necessary, I deal with these issues in the body of this decision.
This decision deals solely with the jurisdictional issues; not whether adverse action was taken for an unlawful reason.
Facts
I make the following findings.
The Corporation provides services to Aboriginal and Torres Strait Islander communities, and in particular the Yolnju people of Arnhem Land, in the vast expanse of the northeast of the Northern Territory, Australia. It is a large employer.
Within the territory where the Corporation provides services is the township of Lajamanu. Here, the Corporation operates a retail store and adjacent mechanical workshop.
Mr Thapaliya is of Nepalese ethnicity. He has resided in Australia for some years. In September 2023 he came to be employed by the Corporation as workshop manager at Lajamanu. His recruitment was undertaken by the Corporation’s then recruitment manager Mr Nima Lou.
Mr Thapaliya commenced employment on 25 September 2023. He moved to the township for this purpose. He was provided a residence by the Corporation.
Mr Thapaliya worked for three months before his employment ended.
Whilst employed, Mr Thapaliya reported to an Area Manager Ms Nancy Morley. A second Area Manager (Mr Damon Ryan) also, from time to time, oversaw operations. In the workshop Mr Thapaliya was assisted by and trained two other (non-full time) employees from the local community.
Mr Thapaliya did not report to the Corporation’s employees who worked in the store. However, being under the same roof, there was frequent communication. The store was managed by Mr Grant Richardson. Two other employees (a Ryan and a Lisa) were employed in the store.
15 December 2023
On 15 December 2023 an altercation occurred in the store office. A non-employee from the community (Jason) had arrived at the store and spoke to Ryan, alleging that Mr Thapaliya had not paid for cigarettes. According to an incident report in evidence,[4] Mr Thapaliya and Jason had an altercation which required Ryan to intervene between the two and ask Mr Thapaliya to leave the store. Mr Thapaliya reported the incident to local police. Having done so, Mr Thapaliya’s evidence was that an argument continued with Ryan who had asked why he had spoken to the police rather than reporting the incident to Ms Morley.
On about 18 December 2023, upon hearing about the incident, Ms Morley informally spoke to Mr Thapaliya and suggested that he should have handled the incident better than he did.
19 December 2023
On the morning of 19 December 2023 Mr Thapaliya was on the computer checking workshop orders and deliveries. He came across the incident report, which was unknown to him, and read it. Mr Thapaliya was annoyed that the store manager had prepared an incident report and had placed it in company records. Mr Thapaliya considered that the report wrongly attributed blame to him.
Mr Thapaliya’s evidence was that he felt stressed and unwell after reading the incident report.
Mr Thapaliya left work and went to the township medical clinic. He gave Mr Richardson the keys to the workshop and closed the workshop as the other two workshop employees were not working that day.
Mr Richardson sent the following text to Ms Morley:[5]
“Nancy
Subi has just given me the keys and resigned”.
Shortly after, Ms Morley received the following text from Mr Thapaliya:[6]
“I quit. Next time plz make sure you put in contract that all whites are to be freely served.
Thank you”.
Mr Thapaliya’s evidence was that his reference to “all whites are to be freely served” was a reference to his view that the Corporation was allowing store products (including cigarettes) to be given free to whites but had to be paid for by persons of colour. No evidence was led in this hearing to support that proposition. It was rejected by Ms Morley in her evidence.
Ms Morley was not entirely surprised to see the “I quit” text from Mr Thapaliya as, based on earlier discussions with him, she believed that Mr Thapaliya had been unhappy in dealings with store employees and some others in the community. Ms Morley decided to discuss the text with Mr Thapaliya.
Ms Morley telephoned Mr Thapaliya and the following conversation, or words to this effect, ensued:[7]
“Ms Morley:Hello I received your text and Grant let me know that you gave him the keys to the workshop.”
Mr Thapaliya: I can’t do this anymore, I have paid for the cigarettes. In relation to the incident report, it is all lies.”
Ms Morley:It’s all factual information, it’s not for any reason other than record keeping purposes. I accept your resignation, and I will need to speak with others to arrange for your travel out of community.”
After leaving the workshop, Mr Thapaliya went to the local medical clinic and obtained, what he claimed in evidence, was a sick certificate for three days. That certificate was not put before the Commission. It is unclear whether it was given to the employer. Mr Thapaliya believed he had suffered a panic attack after reading the incident report.
Mr Lou sent Mr Thapaliya the following email at 12.30pm:[8]
“Hi Sudharson
Thank you for your time on the phone earlier. Can you please confirm that you are resigning as the Workshop Manager at Lajamanu?
Regards”
Mr Thapaliya replied that day by email:[9]
“Hi Nima
It’s not resignation but its forced to leave. Let me go out of here because my mental stress is going to high and then I will think about it when I am cooled.
First thing let me go out of here.
Thank you.”
According to Ms Morley, Mr Lou did not forward this email exchange to her.
Mr Lou and Mr Thapaliya then spoke. Mr Thapaliya repeated his request that Mr Lou help arrange his travel out of the township and to a larger city for medical supervision.
As Mr Thapaliya had a contractual right to flights out, and whilst (according to Ms Morley’s evidence) it was not within Mr Lou’s job description to do so, Mr Lou arranged for Mr Thapaliya to travel to Adelaide.
Mr Thapaliya then went to his residence.
Unknown to Mr Thapaliya, on the afternoon of 20 December 2023 the Corporation’s payroll department was advised by Mr Bradstock that Mr Thapaliya had resigned and that his final pay should be made up to that day.[10]
On 20 December 2023 Mr Thapaliya packed his personal belongings in the residence (leaving some linen) and travelled to Adelaide. He did not return to Lajamanu.
Whilst in Adelaide, Mr Thapaliya went to a hospital for a check-up, was not admitted, but was referred to a general practitioner. He then saw a general practitioner. He remained in Adelaide.
27 December 2023
On 27 December 2023 Mr Thapaliya received in his bank account a payment from the Corporation. The payslip indicated that the payment was for two days work until 19 December 2023 and for the payout of accrued entitlements on “termination”.[11]
Mr Thapaliya’s evidence was that whilst he saw the payment in his account on or about 27 December, he does not believe that he received or read the payslip until about 2 January 2024.
However, on 27 December Mr Thapaliya sent the following text to Ms Morley:[12]
“After coming to Adelaide, I went to emergency hospital. And a doctor told me its anxiety type of attack and told me to see doctor for regular check-up. Don’t know about what alpa want to but if you can convert my absent days in annual leave then it would be great to me.
Any help would be grateful.
Thank you.”
Ms Morley was surprised to receive this message believing Mr Thapaliya’s employment had ended the week prior and entitlements paid out.
29 December 2023
On 29 December 2023 Ms Morley responded to Mr Thapaliya by email:[13]
“Dear Suhardson
We received your text and confirm that all your unused annual leave and entitlements were paid to you following acceptance of your resignation on 19.12.2023.
Regards
Nancy Morley Area Manager”
Mr Thapaliya replied:
“Hi Nancy Thanks for mail. I didn’t resign but left Lajamanu as my conditions was really worst to think about anything than to leave there for my own safety.
Thank you for letting me know.”
Mr Thapaliya then sent a further email:
“Please send me copy of workers compensation claim form too.”
Ms Morley replied:
“Hi Suhardson
As you are no longer an employee, if you wish to make a claim for an injury or illness allegedly sustained during your employment, you will need to seek this form yourself. You should be able to obtain online.
Regards”
In the fortnight that followed Mr Thapaliya gave thought to returning to Nepal but as his finances were low he decided not to travel. He decided to make a Work Cover claim and a dismissal claim.
11 January 2024
According to Commission records,[14] confirmed by Mr Thapaliya’s evidence, on the afternoon of 11 January 2024 Mr Thapaliya telephoned the Commission and spoke to a client services officer. Mr Thapaliya indicated that he wanted to make a dismissal claim but was having difficulty doing so on-line. The officer proceeded to take Mr Thapaliya’s application by telephone, but the details provided by Mr Thapaliya for the F8 application were incomplete.
Following the telephone call, the incomplete application was entered into the Commission’s case management system, the application was allocated a matter number and a standard letter acknowledging receipt of a general protections dismissal application was sent to Mr Thapaliya.
The following day (12 January) a client services officer again spoke to Mr Thapaliya, informed him that the application was incomplete and that he would need to send a completed application before the application could be further progressed.
The Corporation was not served with the incomplete application nor knew of it.
21 January 2024
On 21 January 2024 Mr Thapaliya, having received the incomplete application, populated the application form afresh and re-sent it electronically to the Commission.
The Corporation was then served with the application dated 21 January 2024.
Submissions
Mr Thapaliya
Mr Thapaliya submits that he was forced to resign due to the conduct or course of conduct by the employer. As such he submits that he was dismissed within the meaning of the FW Act.
The conduct relied upon by Mr Thapaliya is a combination of the following:
· an allegedly unsafe and unsupportive workplace, including being subjected to racial bullying and harassment;
· an incident report that allegedly contained “lies” and wrongly blamed him for the 15 December incident; and
· being (according to his evidence) told or asked to resign by the Area Manager.
Mr Thapaliya submits that these were, in combination, unreasonable actions of the Corporation which made his employment untenable and forced him to resign.
The Corporation
The Corporation submits that Mr Thapaliya resigned, that reliance on his resignation was not unreasonable, and that it did not force Mr Thapaliya to resign.
The Corporation refutes the claim by Mr Thapaliya that he was told or asked to resign by Ms Morley or any other manager.
The Corporation rejects the assertion that the 15 December 2023 incident report was inappropriate or unfair. It says it was necessary to record the incident to meet its record-keeping obligations. It did not use the report to discipline Mr Thapaliya and no disciplinary action occurred or was foreshadowed.
The Corporation submits that it did not fail to support Mr Thapaliya or provide him a safe working environment or access to medial support. The Corporation rejects the assertion that it condoned, participated in or ignored any incident of racial discrimination or bullying directed at Mr Thapaliya.
Consideration
Out of time issue
I deal firstly with the issue of whether Mr Thapaliya’s application is out of time and, if so, whether time should be extended.
I make the finding (below) that Mr Thapaliya’s employment ended by resignation on 19 December 2023.
Given that Mr Thapaliya had resigned a week earlier, I do not consider it reasonably open to conclude that the employment ended only when Mr Thapaliya saw the termination payments in his bank account on 27 December 2023 or when he received Ms Morley’s email on 29 December 2023.
Whilst, in its email on 29 December 2023, the employer communicated the fact of Mr Thapaliya’s employment having ended, this was a response to Mr Thapaliya’s earlier text wanting different treatment of his absence. Whilst Mr Thapaliya gave the impression that his employment was continuing, given my finding as to resignation on 19 December 2023, the payment on 27 December and communication of 29 December was the employer giving effect to and confirming the fact of an earlier resignation.
This being so, the application is out of time as it was not made within twenty-one days of 19 December 2023 (by 9 January 2024).
I reject the employer’s submission that the application was not made until 21 January 2024 when a completed application was filed in the Commission. It is well established that an incomplete application can be an application within the meaning of the FW Act.[15]
Relevantly, the Fair Work Commission Rules permit telephone applications of the type made by Mr Thapaliya.[16] Given that an application, albeit incomplete, was made by telephone on 11 January 2024, and given that the Commission formally advised Mr Thapaliya of that fact, I am comfortably satisfied that the application was made on 11 January 2024.
Accordingly, the application is two days out of time.
I observe that if, contrary to my finding, Mr Thapaliya’s employment did not end until the employer deposited the payment on 27 December 2023 or its text communication on 29 December, then the application would not be out of time.
For the application to proceed, an extension of time is required under s 366 of the FW Act. An extension requires the Commission to be satisfied of exceptional circumstances having regard to the factors set out in s 366(2).
For the following reasons I am satisfied that exceptional circumstances exist and time should be extended.
Reason for the delay (s 366(2)(a)): It is readily apparent that Mr Thapaliya was upset and unwell in the wake of his employment ending. He travelled interstate for medical assessment and remained in Adelaide. The employer facilitated that travel. It is also apparent that it was not until 27 December 2023 when he received a final payment, 29 December 2023 when the employer by email confirmed the fact his employment had ended, and 2 January 2024 when he read the payslip, that Mr Thapaliya accepted he was no longer employed by the Corporation.
I also take into account that in this period Mr Thapaliya found other consequences of his employment ending difficult to manage, such as uncertainty about whether to inform his family of the events which had occurred and whether he should return to Nepal.
Given his absence from Lajamanu, and his apparent uncertainty as to his employment status until 29 December 2023, this reason weighs somewhat in favour of granting an extension.
Action to dispute the dismissal (s 366(2)(b)): Mr Thapaliya informed the Corporation on the day his employment ended and then again on 29 December 2023 that he considered his resignation to have been forced. Accordingly, the employer was on notice from the earliest possible time that this issue was in contest. This factor weighs in favour of extending time.
Prejudice to the employer (s 366(2)(c)): Whilst the Corporation will have to submit itself to a determination on the dismissal issue, there is no practical prejudice. The extension of time issue has been dealt with in the same proceedings, and the employer did not give notice of the extension of time issue until a late stage in these proceedings. This is a neutral consideration.
Merits (s 366(2)(d)): The application requires a jurisdictional issue (forced resignation) to be determined. The workplace right alleged to have been breached appears to relate to similar considerations relevant to this further jurisdictional issue (alleged discrimination on the ground of race and unsafe workplace). Given my findings below, the case on merit is not strong. However, in the context of an extension of time assessment, this is a neutral consideration given that further evidence would be able to be called if a merit hearing were to occur.
Fairness between the parties (s 366(2)(e)): No submission was put that this is a relevant consideration in this matter.
The employer was on clear notice from the time Mr Thapaliya left Lajamanu that he disputed that he had resigned of his own free will. The late filing was in part a product of Mr Thapaliya’s absence from Lajamanu, some uncertainty about his employment status, the fact that confirmation of his employment having ended was not formally notified until 29 December 2023 and Mr Thapaliya’s personal circumstances (including health). Taking the above considerations collectively into account they amount to exceptional circumstances.
Given this and the absence of any other reason not to extend time, it is appropriate to do so.
I observe that if, contrary to my finding, the application was not made until 21 January 2024 and thus twelve days out of time (rather than two) my conclusion that an extension of time was warranted would equally apply.
Dismissal issue
Section 365 of the FW Act provides:
“365 Application for the FWC to deal with a dismissal dispute
If:
(a) a person has been dismissed; and
(b) the person, or an industrial association that is entitled to represent the industrial interests of the person, alleges that the person was dismissed in contravention of this Part;
the person, or the industrial association, may apply to the FWC for the FWC to deal with the dispute.”
Section 365 requires a dismissal to have occurred as a jurisdictional fact. “Dismissal” for these purposes (and other purposes of the FW Act) is defined in s 386(1). It provides:
“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.”
Determining whether, on the facts, a person has been dismissed is an objective exercise. That a person believes they have been dismissed or another believes or believed the contrary does not make it so.
A finding as to whether there has been a dismissal is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties.
Dismissed on initiative of employer
Although on 29 December 2023 the Corporation confirmed the fact of employment having ended, the evidence does not support a finding that Mr Thapaliya was dismissed on the initiative of the employer at that or some other time.
No decision was made by the Corporation to dismiss Mr Thapaliya. Nor did its conduct initiate his employment ceasing. The instruction to payroll on 20 December 2023 to make up his termination pay was an administrative act which referred expressly to Mr Thapaliya having “resigned from ALPS effective 19 December 2023”.[17] For reasons set out below, I find that Mr Thapaliya did in fact resign. The employer’s belief in the fact of resignation was objectively reasonable.
Mr Thapaliya’s submission that the employer dismissed him and then re-characterised the termination as a resignation is not supported by the evidence.
Resignation
Did Mr Thapaliya resign?
The following facts, considered individually and collectively, support a finding that Mr Thapaliya resigned:
on the morning of 19 December 2023 Mr Thapaliya sent a text message to Ms Morely in which he stated “I Quit”;
this text message was not immediately acted upon. Rather, Ms Morley took steps to be satisfied that this was Mr Thapaliya’s intention and, after doing so, was so satisfied;
on the morning of 19 December 2023 Mr Thapaliya stated, in the telephone conversation with Ms Morley words to the effect “I can’t do this anymore”; and
in his email to Mr Lou on 19 December 2023 Mr Thapaliya did not claim that he did not resign, but rather that his resignation had been forced and made before he had “cooled”.
I find that Mr Thapaliya’s employment ended by resignation.
In making this finding I consider three other factors relied on by the employer to be neutral rather that weighing clearly in favour of this finding.
Firstly, the return of the workshop keys. Prior to his text and telephone communication with Ms Morley on 19 December 2023, Mr Thapaliya had earlier closed the workshop and given the keys to the store manager. Whilst this conduct is consistent with Mr Thapaliya having ended his employment by resignation, it is also consistent with Mr Thapaliya needing to go to the local medical clinic and not leaving the workshop unattended. I do not take into account the fact that Mr Richardson’s text to Ms Morley about the keys also referred to resignation, as Mr Richardson did not give evidence about any conversation he had with Mr Thapaliya.
Secondly, whilst Mr Thapaliya left Lajamanu and travelled to Adelaide, he did so on the recommendation of the local medical clinic that he be seen to at a larger city. The fact he travelled interstate and that travel was arranged by the Corporation from his remote work location did not, of itself, mean that his employment had ended, let alone by resignation. That he remained in Adelaide and did not return is also a neutral factor given that he emailed the employer on 27 December about his circumstances.
Thirdly, the fact that Mr Thapaliya cleared his personal belongings (other than some linen) from the residence prior to travelling interstate is a neutral consideration given that his evidence was that he had only a few personal effects and took those he needed with him.
Reliance on resignation
Circumstances may exist where a resignation is a dismissal for the purpose of s 386(1)(a) if the resignation was made in the “heat of the moment” by words that may be quickly regretted and if the employer had not sought to clarify within a reasonable time whether the employee genuinely wanted to resign.[18]
Was it unreasonable for the Corporation to rely on the resignation of 19 December 2023 and, the following day, use it to make up a termination payment via the payroll?
It is open to find, as I do, that Mr Thapaliya’s resignation was made impulsively and in frustration. It had been the build-up in his mind of negative interactions with store employees and some in the community over preceding weeks, including the incident on 15 December (which included both a community member and a store employee). I also accept Ms Morley’s evidence that she had, separate to that incident, detected from regular discussions with Mr Thapaliya a degree of unhappiness on his part as he had sought to adjust to remote living and working in the township and with other employees. Reading the incident report on the morning of 19 December 2023 was clearly the trigger for the resignation. It was the straw that broke the camel’s back as far as Mr Thapaliya was concerned.
In this sense it could be said that the “I quit” text to Ms Morley was an impulsive act taken in the heat of the moment especially taking into account that Mr Thapaliya had felt upset when he did so.
I take into account that, during the afternoon of 19 December 2023 and in the context of seeking employer support to travel, Mr Thapaliya informed Mr Lou that his stress was high and that he would think about things further once he was “cooled”. However, by then his resignation had been made and had been accepted by his Area Manager.
Materially, by then Ms Morley and Mr Thapaliya had spoken. Ms Morley did not action the resignation purely on the basis of the “I quit” text. Rather, Ms Morely initiated a telephone call to Mr Thapaliya and spoke to him about it. Albeit briefly, she provided him an opportunity to confirm his intention and reasons. Mr Thapaliya did so. Even though Ms Morely did not agree with Mr Thapaliya that the incident report was “all lies” she told him that it was for no purpose other than record keeping. She knew of Mr Thapaliya’s views on the 15 December incident as, in the days prior, she had informally counselled Mr Thapaliya about handling conflicts (such as the incident) and had suggested he should have handled it better and should pay for the cigarettes (which Mr Thapaliya did). I accept Ms Morley’s evidence[19] that the tone of her conversation and Mr Thapaliya’s response during their telephone discussion on the morning of 19 December 2023 was normal.
Only at the end of this exchange, brief as it was, did Ms Morely indicate that she would accept the resignation.
In handling the matter in this manner Ms Morley acted reasonably.
Clearly, in the hours and days that followed Mr Thapaliya regretted having resigned, but he had done so at least twice on the morning of 19 December 2023 (by text and then by phone to Ms Morley). Neither that regret nor his subsequent uncertainty about his status (in his email of 27 December 2023) after receiving his final pay altered that fact.
In these circumstances, I do not find that it was unreasonable for the Corporation to rely on the resignation even though it was made in the context of Mr Thapaliya feeling upset and wronged.
Forced resignation
I now consider whether Mr Thapaliya’s resignation was “forced” within the meaning of s 386(1)(b).
A Full Bench of the Commission has observed that the statutory test requires an assessment of “whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign”.[20]
Conduct or a course of conduct forcing a resignation is not required to be repudiatory or unlawful. It could, depending on the circumstances, simply be conduct which, in an objective sense, forced the employee’s resignation.
In considering this question, it is appropriate to observe that clearly Mr Thapaliya felt as though he had been forced to resign. Relevantly, he had made this known in express terms to Mr Lou by email on the afternoon of 19 December 2023 when he stated “It’s not resignation but it’s forced to leave”. He repeated this ten days later to Ms Morely when he stated “I didn’t resign but left Lajamanu as my conditions was really worst to think about anything than to leave there for my own safety”.
Whilst these are relevant matters, the question whether a resignation was forced is considered objectively taking into account all relevant circumstances. It is not based solely on subjective belief.
I now deal with the three forms of conduct relied upon by Mr Thapaliya.
Unsafe workplace
There are two elements to this submission.
Firstly, Mr Thapaliya submits that he had an unsafe and unsupportive workplace because he was subject to racial bullying and harassment.
It is apparent from Mr Thapaliya’s oral evidence and written materials that, being a person of non-white ethnicity, he considered that “white” employees including those working in the store bullied and harassed him on racial grounds. It is less apparent whether Mr Thapaliya believed that he was also bullied or harassed by members of the community because of his Nepalese ethnicity.
Whilst these feelings appear to have been genuinely held, and whilst it is plausible that in a remote township there were tensions or a heightened awareness of who was of what ethnicity, the evidence before me goes no further than to suggest that from time to time there were arguments with some staff and, less frequently, community members. There is no evidence that leads me to conclude that those issues arose for racial reasons, and even if they did, there is no reliable evidence as to who was responsible for those incidents or that they were not appropriately managed by the employer. For example, it would appear that an argument occurred between store employee Ryan and Mr Thapaliya on 15 December 2023 when the store employee questioned why Mr Thapaliya had taken the incident earlier that morning to the police rather than report it to the Area Manager. There is nothing to suggest the disagreement was connected to issues of race; rather it appears to have been about reporting protocols.
Materially, there is no evidence that the Corporation engaged in, permitted or turned a blind eye to inappropriate let alone racially discriminatory conduct whether directed at Mr Thapaliya or otherwise. Ms Morely’s evidence was clear that the Corporation and its mission operates to support indigenous communities and persons of colour. There is nothing before me to suggest otherwise.
Whilst I accept that Mr Thapaliya saw the workplace conflicts that arose through the prism of race and ethnicity, and whilst I am only able to deal with the limited evidence before me, I reject the submission that his workplace was unsafe on account of racial bullying or other harassment.
Secondly, Mr Thapaliya submits that his workplace was unsafe because of his “workload”[21] and because he was denied access to medical support and treatment.
There is no evidence about Mr Thapaliya’s workload or that it was unreasonable. I reject this submission.
I do not find that Mr Thapaliya was denied or refused timely access to medical treatment. Ms Morley’s evidence was that she encouraged Mr Thapaliya to obtain medical treatment when needed for genuine medical issues (the example she gave was when Mr Thapaliya earlier had a toothache). On 19 December 2023 Mr Thapaliya went to the medical clinic when experiencing anxiety symptoms. The Corporation did not preclude this, counsel against it or criticise Mr Thapaliya for doing so.
Whilst the workplace had tensions, and some of those tensions may have arisen from the township and workplace context and its remoteness, I do not find that Mr Thapaliya had an unsafe or unsupported workplace environment.
Incident report
Mr Thapaliya submits that the incident report of 15 December 2023[22] contained “lies”, wrongly blamed him for the incident that morning, and that this forced him to resign.
The incident report, according to the evidence, was prepared by the store manager and placed on file.
I do not consider a manager placing a report on file of a workplace incident involving verbal and physical aggression in the workplace for which they are responsible to be anything other than appropriate. The employer had workplace safety obligations to document the incident and doing so was appropriate human resources practice.
The report appears to be the manager’s summary of the incident. I take into account that Mr Thapaliya did not know of the incident report before it was placed on file and was not given a chance to provide input directly into it. Given this, Mr Thapaliya was entitled to form his own view about what it stated, and was entitled to disagree and seek correction.
As events occurred, Mr Thapaliya formed his view (that it was “all lies”) but did not seek its correction or the addition of his views. Rather, he resigned.
Further, the report is expressed as a narrative and does not purport to attribute blame or fault or recommend action against any person.
Whilst Mr Thapaliya was not informed of a report on file that related to an incident involving him four days earlier, neither the making or filing of the report, nor its contents, reasonably forced Mr Thapaliya to resign.
Pressured to resign
Mr Thapaliya submits that he was told or asked by Ms Morely to resign.
I reject this submission. It is unsupported by the evidence. Ms Morley’s evidence was that at no time on 19 December 2023 or otherwise did she suggest or tell Mr Thapaliya to resign. I accept that evidence. It is consistent with Ms Morley’s conduct in not immediately actioning the “I quit” text message or what she had been told (through text) by Mr Richardson, but rather deciding to contact Mr Thapaliya and satisfy herself that resignation was what he had decided.
For these reasons, I do not consider that the Corporation engaged in conduct or a course of conduct which, collectively or individually, forced Mr Thapaliya to resign. Resignation was not the probable consequence of the employer’s conduct.
Conclusion
I have found that Mr Thapaliya’s application was filed out of time but that time for late lodgement should be extended.
I have found that Mr Thapaliya was not dismissed on the initiative of the employer.
I have found that Mr Thapaliya resigned and that, whilst he resigned because he felt wronged, he was not forced to resign within the meaning of the FW Act.
I have found that it was not unreasonable for the employer to rely on the resignation.
Given this, Mr Thapaliya was not dismissed within the meaning of the FW Act. The jurisdictional objection by the Corporation is upheld. The application must be dismissed.
An order giving effect to this decision accompanies its publication.[23]
DEPUTY PRESIDENT
Appearances:
Mr S. Thapaliya, on his own behalf.
Mr S. Bradstock, of and on behalf of The Arnhem Land Progress Aboriginal Corporation.
Hearing details:
2024.
Adelaide (by video),
15 May.
Final written submissions:
The Arnhem Land Progress Aboriginal Corporation: 16 May 2024
Sudharson Thapaliya: 16 May 2024
[1] [2020] FCAFC 152
[2] Email to chambers 16 March 2024
[3] A2
[4] R1 NM6
[5] R1 NM1
[6] R1 NM2
[7] R1 paragraphs 12 to 15
[8] R1 NM3
[9] A3
[10] R2
[11] R1 NM7
[12] NM4
[13] A4
[14] FWC1
[15] Arch v Insurance Group Australia Group Services Pty Limited[2020] FWCFB 601; Hedger v Trustee for Perrott Trust trading as Perrot Engineering[2023] FWCFB 231, [52] – [54]
[16] Fair Work Commission Rules 2013 Rule 9
[17] R2
[18] CF Capital PLC v Willoughby Court of Appeal (Civil Division) per Rimer LJ [2011] EWCA 1115; Gunnedah Shire Council v Grout (1995) 134 ALR 145; Kwik-Fit (GB) Ltd v Lineham (1992) ICR 18
[19] Audio hearing 15.5.2024 2:48
[20] Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Tavassoli[2017] FWCFB 3941, [47]
[21] F8 item 3.3
[22] R1 NM6
[23] PR775368
Printed by authority of the Commonwealth Government Printer
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