Tony Stephens v Department of Communication and the Arts

[2019] FWC 6399

[2019] FWC 6399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tony Stephens
v
Department of Communication and the Arts
(U2019/4526)

DEPUTY PRESIDENT DEAN SYDNEY, 18 SEPTEMBER 2019

Application for an unfair dismissal remedy – whether dismissed – no dismissal – application dismissed.

[1] On 20 April 2019 Mr Tony Stephens made an application to the Fair Work Commission pursuant to section 394 of the Fair Work Act 2009 for a remedy in respect of his alleged unfair dismissal by the Department of Communications and the Arts (the Department).

[2] The Department objected to the application on the basis that Mr Stephens resigned from his employment voluntarily and was therefore not dismissed within the meaning of s.386(1) of the Act. Mr Stephens contended that he was forced to resign.

[3] The matter was listed for hearing in Sydney on 26 July 2019. At the hearing, Mr Stephens was self-represented. Mr P McNulty appeared, with permission, for the Department. Mr Stephens gave evidence on his own behalf and Ms S Bourke and Ms J Talbot gave evidence for the Department.

Factual background

[4] The factual background of this matter is largely uncontested.

[5] Mr Stephens had been employed by the Commonwealth of Australia as the Director of the Artbank program since October 2012. He continued with the role when the Arts portfolio was moved to the Department from 21 September 2015.

[6] Mr Stephens’ role was an Executive Level 2 (EL2) position in the Australian Public Service (APS) and was subject to the APS Code of Conduct as contained in Section 13 of the Public Service Act 1999 (Cth) (PS Act) and the APS Values in section 10 of the PS Act. The performance of his role was also subject to the Public Governance, Performance and Accountability Act 2013.

[7] On 25 October 2018, Mr Stephens was informed by the Department of its decision to commence an investigation into a number of allegations against him with respect to breaches of the APS Code of Conduct.

[8] The investigation was conducted by an external investigator. During the course of the investigation process, some of the allegations were revised and withdrawn.

[9] Mr Stephens was assisted by Harmers Lawyers during the investigation process and his solicitors had on a number of occasions written to the Department on his behalf.

[10] Mr Stephens provided detailed written response on 17 December 2018 and met with the investigator for an interview on 8 January 2019. The investigation concluded on 21 January 2019 and the investigator’s report was provided to Mr Stephens on 11 February 2019.

[11] By letter dated 11 February 2019, Mr Stephens was advised by Ms S Vandenbroek (Chief Financial Officer, being appointed as Breach delegate) that she had determined that he had engaged in misconduct which amounted to breaches of the APS Code of Conduct. Ms Vandenbroek advised that the matter was to be referred to the Sanction delegate, Ms Talbot, to determine the proposed sanction to be imposed.

[12] By letter dated 4 March 2019, Mr Stephens was advised by Ms Talbot that she had formed a preliminary view that termination of his employment was the appropriate sanction to be imposed. Mr Stephens was asked to respond within 7 days prior to a final decision on sanction being made. This period was later extended to 15 March 2019 at Mr Stephens’ request.

[13] On 15 March 2019, Mr Stephens provided written response to Ms Talbot’s preliminary view on sanction and concluded that email correspondence by tendering his resignation with two weeks’ notice.

[14] On 18 March 2019, Ms Talbot wrote to Mr Stephens to confirm his resignation and acknowledged his employment with the Department ceased on 29 March 2019.

Issue to be determined

[15] It is not in dispute that Mr Stephens resigned his employment on 15 March 2019. The question to be determined is whether he was forced to resign because of conduct or a course of conduct engaged in by the Department.

[16] For the reasons set out below, I find that Mr Stephens was not forced to resign and that the termination was not at the department’s initiative. Given my findings, it is not necessary for me to consider the merits of the application, although I will make a brief observation about the merits later in this decision.

Relevant legislation and case law

[17] Section 394 of the Act provides that a person who has been dismissed may apply for unfair dismissal remedy.

[18] The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:

(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.

[19] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli 1(Bupa), a Full Bench of the Commission examined the relevant authorities at great length and summarised the definition of ‘dismissed’ under s.386(1) as follows:

(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation 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.

(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is 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 probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.

[20] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park 2 Deputy President Sams, in considering the issue of ‘forced resignation’, cited the principles set out by Roberts C in Daffey v MSS Security Pty Ltd3. Of particular relevance to the present case are the following:

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

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

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

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

In Mohazab, the Full Court also said:

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

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

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

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

‘Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.’

The Full Bench went on to cite:

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

If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant …These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objective.’

In Pawel v Australian Industrial Relations Commission (Pawel) Dowsett J said:

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

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

‘In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 32 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.’

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

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

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

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

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

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

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

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

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

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

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

…

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

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

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

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

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

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

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

Evidence

Mr Stephens

[21] Mr Stephens denied that he resigned of his own volition and said that he felt he had no option other than to resign. He believed that it had always been the intent of the investigation process to end his employment and he was not treated fairly.

[22] Mr Stephens said that he worked effectively with his former manager for over five years without any issue. He claimed that his new manager did not provide him with any managerial support and failed to address issues with him as they arose prior to proceeding to an investigation. He claimed that the lack of training and induction he was given in the areas of breach rendered the proposed sanction of termination unfair and excessive.

[23] Mr Stephens contended that there was a lack of procedural fairness in the investigation process and that the Department failed to act on his various concerns. He claimed that the initiation of the investigation was unjustified and the subsequent outcome was not impartial. Mr Stephens said that the concerns he raised about one of the complainants relating to conduct and performance issues were never dealt with by the Department and he felt bullied, unfairly treated and that there was a different level of accountability for different staff.

[24] Mr Stephens also claimed that there was a conflict of interest involving Ms Talbot and his direct manager Ms Fulton and therefore the decision made by Ms Talbot was unfair.

[25] Mr Stephens said that at the meeting with Ms Bourke on 4 March 2019 where he was given the letter from Ms Talbot detailing the proposed sanction, he indicated to Ms Bourke that he was considering remedy through the Fair Work Commission but was concerned that it might be easier if he was terminated. He said that Ms Bourke responded in words to the effect ‘well you have a letter saying you are going to be terminated’.

[26] Mr Stephens said that since leaving the employment, he had two job offers withdrawn based on information provided by the Department. This had a significant impact on him financially and he had been struggling to obtain new employment due to the widespread knowledge of the actions the Department had taken and the belief that he had been terminated. 4

[27] In cross examination, Mr Stephens agreed that he had a job offer at the time he tendered his resignation and agreed that it was the best option for him in all the circumstances. 5

Ms Burke

[28] Ms Burke is the Acting Assistant Secretary, Human Resources and Security Branch, and has been acting in this role since 21 January 2019.

[29] Ms Burke said that after conducting an initial review of the allegations against Mr Stephens she referred the matter to the then Assistant Secretary, Human Resources, Ms D Kerrins. It was Ms Kerrins’ decision to commence a formal APS Code of Conduct investigation into the allegations.

[30] Ms Burke said that Ms Fulton was removed from any involvement in the decision making regarding the investigation process due to the interpersonal issues between Mr Stephens and Ms Fulton.

[31] Her evidence went to her recollection of her meeting with Mr Stephens on 4 March 2019. Her evidence was that Mr Stephens asked her what would happen should he resign and she said to him that a sanction could not be applied if he resigned prior to a decision being taken. She also told him that she could not advise him as to what he should do. Mr Stephens told her that he was advised by Fair Work Commission that it would be better to let the Department ‘fire him’ so he could show he lost his job rather than resigning.

[32] Ms Burke denied saying to Mr Stephens at the meeting the words ‘well you have a letter saying you are going to be terminated’. She further said that she had reminded Mr Stephens that he had 60 days to submit a review of the breach decision.

[33] Ms Burke said that Mr Stephens also expressed a concern at the meeting that there was a conflict of interest between Ms Talbot and Ms Fulton because they were ‘friends’ and ‘went to school together’. Attached to Ms Burke’s statement are email correspondences sent by her to Ms Talbot and Ms Fulton on 8 March 2019 regarding the perceived conflict of interest and their responses on 8 and 12 March respectively. She later wrote to Mr Stephens on 14 March 2019 to confirm that she was satisfied that there was no conflict of interest.

Ms Talbot

[34] Ms Talbot is the Chief Operating Officer of the Department and in her role is responsible for the human resources, financial, information technology, communications governance and legal functions of the Department. She was appointed by the Secretary to the Department to make a determination as to what sanction should be imposed on Mr Stephens following the findings against him were made.

[35] Ms Talbot’s evidence went to the requirements of Mr Stephens’ role and set out the matters which she had considered in forming her preliminary view that termination of employment is the appropriate sanction to be imposed on Mr Stephens.

[36] Ms Talbot said that she had confirmed with Ms Burke on 8 March 2019 that she did not have any relationship with Ms Fulton and therefore there was no actual or perceived conflict existed.

Submissions

Mr Stephens

[37] Mr Stephens’ submissions largely went to his criticisms of the Department’s handling of the investigation. He contended that there was insufficient evidence to support the conclusion reached by the Department with respect to the three areas of concerns.

[38] Mr Stephens submitted that the sanction imposed was harsh in all the circumstances.

The Department

[39] It was submitted that Mr Stephens’ resignation was clear, unequivocal and was arrived at following a period of consideration. The resignation was not tendered in the ‘heat of the moment’ or in a state of emotional stress or mental confusion and the Department was entitled to treat it as effective.

[40] The Commission’s attention was drawn to the actions of Mr Stephens prior to his decision to resign. In particular, he

•  made enquiries with Ms Bourke in relation to the effect of resigning from his employment when he was informed of Ms Talbot’s preliminary view as to sanction on 4 March 2019;

•  had clearly turned his mind to resignation prior to 4 March 2019. He advised Ms Bourke on 4 March 2019 that he had made inquiries with the Commission and had been told it was better to let the Department ‘fire him’ so he could show he lost his job, rather than resigning;

•  requested an extension of time to respond to Ms Talbot’s preliminary view on sanction, to 15 March 2019. This request for an extension of time was granted by Ms Talbot;

•  clearly communicated his resignation in a letter after having ten days to consider his decision;

•  gave two week’ notice of his resignation. Despite his contention that he gave notice because he thought he was required to do so, the fact that he gave such notice demonstrates that his decision was properly considered, that he intended for the resignation to be legally effective and that it was not a decision made in ‘the heat of the moment’ or in circumstances where he did not intend to convey a real intention to resign;

•  emailed Ms Bourke on 23 March 2019 after having resigned, stating that he ‘thought he would touch base and see if there is anything I need to do to finalise my separation?’

•  did not, during the two week period between tendering his resignation and his resignation taking effect, seek to rescind his resignation;

•  made it clear in the application that he had considered his options carefully and had exercised a choice to resign. He noted that he was ‘unsure’ if he could emotionally deal with being formally terminated and as he had been offered alternate employment, he considered that was ‘the best option’.

[41] It was submitted that it cannot be reasonably concluded that Mr Stephens’ resignation was a direct or consequential result of any action taken by the Department with the intention of bringing the employment to an end. In this regard, submissions were made that:

a. each of the procedural concerns raised by Mr Stephens and his solicitors during the course of the investigation was promptly addressed and responded to by the Department.

b. the Department took steps to ensure that the process was fair and impartial, including by appointing an external investigator to undertake the investigation, a senior officer of the Department to determine breach and a different senior officer of the Department to determine sanction.

c. Ms Talbot’s letter of 4 March 2019 clearly states that no decision had been made or would be made in relation to a sanction being imposed until Mr Stephens had been provided with an opportunity to respond to her preliminary view on sanction.

d. The mere fact that Ms Talbot indicated to Mr Stephens that her preliminary view was that termination of employment was the appropriate sanction is not conduct which leaves him with ‘no real choice but to resign’. Instead, Mr Stephens was invited to respond to the preliminary decision and to provide reasons why his employment should not be terminated. This is consistent with an approach of affording Mr Stephens procedural fairness. It was open to him to seek legal advice regarding the options available to him. There is no evidence to suggest that his views would not have been considered by Ms Talbot.

e. At no stage did the Department provide Mr Stephens with an ultimatum nor raise resignation of employment as an option available to him. Instead, in his meeting with Ms Bourke on 4 March 2019, Mr Stephens asked what would happened should he resign from his employment. Ms Bourke responded by saying that it was entirely a matter for him but that no sanction could be imposed if he chose that course.

f. Mr Stephens’ contention that Ms Bourke said to him words to the effect that ‘well you have a letter saying you are going to be terminated’ are refuted, and Ms Bourke’s version of conversation between her and Mr Stephens on 4 March 2019 should be preferred, particularly in light of the detailed file note that was taken by Ms Bourke immediately after the conversation occurred.

g. The correspondence between Mr Stephens and the Department during the period 4 March 2019 and 15 March 2019 (being the day he resigned) is not consistent with a contention that the Department was seeking to bring about Mr Stephens’ resignation. Rather, the actions of the Department demonstrate an interest in affording Mr Stephens every opportunity to avail himself of his right to natural justice:

1. Ms Bourke discussed with Mr Stephens on 4 March his right to seek a review of action under the PS Act with respect to the breach decision,

2. His request for an extension of time to respond to Ms Talbot’s preliminary view on sanction was granted

3. His concerns regarding that there being an actual or perceived conflict of interest between his supervisor, Ms Fulton, was carefully considered and responded to by Ms Talbot.

4. Ms Bourke reminded Mr Stephens of his submission being due by an email dated 14 March 2019.

h. His decision to resign was voluntary. His decision was considered and involved him weighing the risks of having his employment terminated against the consequences of his resignation, in the context of him having being offered other employment. This was demonstrated in his application where he stated that “I was unsure I could emotionally deal with being formally terminated as I have been offered another role, I thought it the best option.”

[42] Mr McNulty submitted that if it was found that Mr Stephens was terminated by the Department, the termination was neither harsh, unjust nor unreasonable. The Department took a considered process and there were a number of separate decision makers involved at various stages of that process. Mr Stephens was afforded procedural fairness throughout the investigation.

Consideration

[43] In determining whether Mr Stephens was dismissed in accordance with s.386(1), I am guided by the authorities cited earlier in this decision.

[44] For a resignation to be a dismissal under s.386(1)(b), it must be a resignation forced upon the employee because of a conduct or a course of conduct engaged by the employer. The test is whether the employer engaged in conduct with the intention of bringing the employment to an end or whether the termination was the probable result of the employer’s conduct such that the employee had no effective or real choice but to resign.

[45] It is not in dispute that Mr Stephens resigned in writing on 15 March 2019 and the circumstances leading to his resignation are largely uncontested. There is no evidence that the Department requested Mr Stephens resign his employment as an alternative to dismissal. At the time Mr Stephens tendered his resignation, the Department had not made its final decision as to the sanction to be imposed on him.

[46] On the evidence, I do not find the investigation process adopted by the Department unfair. Mr Stephens was made aware of the allegations concerning his conduct and was given opportunity to respond and defend himself. The investigation was conducted by an external investigator. Mr Stephens was represented by solicitors during the process and was invited to bring a support person at the investigation interview and at the meeting with Ms Burke on 4 March, although he declined to do so. There is evidence that the concerns raised by Mr Stephens were properly considered and responded by the Department.

[47] Given Ms Burke’s contemporaneous file note, I accept her evidence as to what occurred at the meeting with Mr Stephens on 4 March 2019.

[48] On an objective analysis of all the circumstances in this matter, I am not satisfied that the Department’s actions directly or probably resulted in Mr Stephens’ resignation.

[49] Mr Stephens’ decision to resign was a considered one, having discussed it with Ms Bourke prior to it being given, and when he did resign it was with two weeks’ notice. There is also no contention that his resignation was a decision made in ‘the heat of the moment’.

[50] Although the Department’s proposed sanction was to terminate Mr Stephen’s employment, it was open to him to put forward the mitigating factors for the Department to consider. Resignation was not the only option for Mr Stephens. Further, Mr Stephens was able to submit a review of the breach decision, a path which he chose not to pursue. It is also probable that his decision to resign was influenced by the securing of alternative employment, in that he had another job offer that had been made to him.

[51] Accordingly, I find that Mr Stephens was not dismissed in accordance with s.386(1) of the Act and the Commission has no jurisdiction to consider his application for a remedy.

[52] I note two matters in conclusion. First, had Mr Stephens been dismissed based on the material before me, I would have found his dismissal to be unfair. In my view the matters relied upon by the Department did not support a decision to dismiss him. As Mr Stephens contended, there was insufficient evidence to support the conclusion reached by the Department with respect to the three areas of concern. Second, the Department represented to Mr Stephens that the circumstances leading to the cessation of his employment would be kept confidential. The evidence showed that it did not do so, and as a result Mr Stephens had two job offers withdrawn. The Departments’ conduct in this regard has had the effect of depriving Mr Stephens of earning a living and has caused significant financial hardship for him. I expect that the Department will immediately take steps to ensure that the person or persons responsible for this breach of confidentiality are appropriately dealt with, and that no further such conduct will occur.

[53] Based on my conclusions above that Mr Stephens was not dismissed within the meaning of the Act, I now dismiss his application.

DEPUTY PRESIDENT

Appearances:

T Stephens, on his own behalf.

P McNulty, for Department of Communications and the Arts.

Hearing details:

2019.

Sydney:

July 26.

Printed by authority of the Commonwealth Government Printer

<PR712390>

 1   [2017] FWCFB 3941.

 2   [2012] FWA 2473.

 3   [2011] FWA 3983.

 4   Transcript PN36.

 5   Transcript PN192-194.