Fair Work Act 2009
s.394—Unfair dismissal

Rima Sawan
v
Victoria Police
(U2021/8981)

Application for an unfair dismissal remedy.

Introduction

[1] Ms Rima Sawan sent an email to her employer on 17 September 2021 giving four weeks’ notice that she was resigning from her employment with Victoria Police. The resignation would have taken effect on 15 October 2021. Ms Sawan maintains that she was forced to resign from her employment because her employer commenced a show cause process which she believed would result in her dismissal and in which Victoria Police wrongly concluded that she failed to comply with a direction to attend a medical examination. As events transpired the resignation did not end the employment relationship. Shortly after the notice of resignation was given, Victoria Police purported to treat her resignation as being open to acceptance and brought her effective resignation date forward to 17 September 2021 without her agreement. It is uncontroversial that this meant that Ms Sawan was “dismissed” within the meaning of s 386(1)(a) of the Fair Work Act 2009 (Act). Ms Sawan has applied for an unfair dismissal remedy under s 394 of the Act.

[2] I have concluded that Ms Sawan’s dismissal was not unfair and the application for a remedy should be dismissed. My reasons for that conclusion follow.

Factual background

[3] Ms Sawan commenced employment with Victoria Police on or about 2 November 2020 in the position of Unit Manager. Before commencing her employment with Victoria Police Ms Sawan had been employed in the Commonwealth public service. In that role she was classified as an Executive Level 1, a position which carried a higher salary than the VPS-5 classification (5.1 increment) assigned to the unit Manager Position. At the time of her employment, Victoria Police agreed to match Ms Sawan’s previous Commonwealth public service salary.

[4] At the outset it should be observed that Ms Sawan has sought to conduct her application in part to agitate various conflicts in the workplace the subject of a workplace complaint, and other grievances that arose during her employment with Victoria Police. However, as is evident from the application itself Ms Sawan’s claim that she was dismissed and that her dismissal was unfair, is based solely on a contention that she was forced to resign because of a show cause process commenced by Victoria Police. By correspondence dated 8 September 2021 Victoria Police advised Ms Sawan as follows:

“. . . on 12 August 2021 you were issued with a lawful and reasonable direction to attend an IMA with IRP Dr Philip Haynes on 25 August 2021. On this day, you attended the MLCOA’s office, however, refused to sign MLCOA’s consent form for the IMA, resulting in the appointment not being able to proceed.

. . .

It is reasonable to expect that as an employee you will be able to comply with the terms and conditions of your employment. Including that you will have the capacity to regularly attend work and undertake the duties and responsibilities to which you are employed. However, you have now been continually absent from the workplace since 10 May 2021.

Victoria Police has taken reasonable steps to obtain relevant medical information to understand your capacity to safely perform the inherent requirements of your substantive role as a unit manager within the DSSD, however, you have failed to participate in the process.

Based on the information available, Victoria Police is unable to consider any reasonable adjustments to accommodate you within your substantive position.

Accordingly, Victoria Police proposes to terminate your employment on the basis that you are unable to perform the inherent violence of your substantive role as a VPS-5, unit manager within the DSSD.

. . .

The purpose of this correspondence is to provide you with a full and fair opportunity to respond to the proposed termination of your employment.

You are entitled to provide any medical information you consider relevant as to why your employment should not be terminated on grounds that you are unable to perform the inherent requirements of your role.

This may include but is not limited to provision of further medical information about your capacity to perform the inherent requirements of your position within the foreseeable future.

I request that you provide any response by 18 September 2021 . . .” 1

[5] Consistent with the material in her application, during the hearing of her application Ms Sawan confirmed that the conduct which she contends forced her to resign was confined to the show cause process. 2 Ms Sawan does not say that she resigned because of any complaint that she made; she says she resigned because she felt that the outcome of the show cause process was going to be her dismissal.3 However other bases, including the workplace conflict issues, for the forced resignation contention are raised in some of the written material filed by Ms Sawan. Consequent reference will be made to the workplace conflict issues for the purposes of background and where necessary for the purpose of dealing with the other bases for the forced resignation contention. Except as indicated below, the material facts are not seriously in contest.

[6] After Ms Sawan commenced her role as Unit Manager she formed a view that her skills and experience were higher than those required to fill the duties and responsibilities of the Unit Manager position. 4 And although her previous salary was being matched, Ms Sawan was aggrieved by the gap in superannuation contributions being made by Victoria Police compared to those made by the Commonwealth in her previous role.5

[7] Ms Sawan wanted to have the position re-classified, or for the increment assigned to her VPS-5 classification to be increased to increment 5.2. 6 Victoria Police did not accede to Ms Sawan’s request to be reclassified. Ms Sawan also wanted to undertake a conflict mediation training opportunity in the Office of the Chief Digital Officer. Another employee was selected for the conflict mediation training opportunity.7

[8] From 10 May 2021 until the employment relationship ended on 17 September 2021, Ms Sawan was absent from work and certified as being medically unfit for work. 8 During this period of absence, Ms Sawan used various forms of accrued paid leave available.9

[9] On or about 26 May 2021, Victoria Police received a written complaint from Ms Sawan about her treatment in the workplace by Mr David Overend, the Unit Head of the Strategy and Policy Unit within the Digital Services and Strategy Department, and Ms Sawan’s manager. 10 Ms Siva Dhanashekar, a Senior Workplace Relations Lead with Victoria Police at the time was given the complaint for assessment.11

[10] After reviewing the complaint and assessing it against the Victoria Police Manual – Workplace Behaviours policy Ms Dhanashekar concluded, in consultation with Ms Natasha Ilievski, the acting Director of Workplace Relations Division, that the behaviours alleged in the complaint did not meet the definition of inappropriate conduct, bullying or harassment in the policy and did not warrant a formal investigation. 12 Instead the complaint was assessed as involving inter-personal conflict and/or workplace incivility and the conduct about which Ms Sawan complained should be addressed through various local management intervention measures.13 Ms Sawan was notified of the outcome of her complaint, including the various local management intervention measures to be taken, by letter from Ms Ilievski dated 16 July 2021.14

[11] Ms Sawan gave evidence that she would have welcomed the opportunity to participate in the local management interventions recommended by Ms Dhanashekar, had Mr Nicholas Winton, a Director in the office of the Chief Information Officer in the Digital Services and Security Department, “not interfered in the process and gaslighted me to the wellbeing officer”. 15 The so called “gaslighting” is said to have occurred following the telephone call between Mr Winton and Ms Sawan on 16 June 2021, in which the former called the latter to discuss a secondment opportunity Ms Sawan had requested. The substance of the call is in dispute, but I need not determine the veracity of the competing claims. Mr Winton made a contemporaneous note of sorts in the form of an email sent to Ms Jennifer McGrath shortly after the telephone call concluded.16 Ms Sawan’s version of events is recorded in an email she sent the following day to Ms Tara Simmons.17 In their evidence both deny being aggressive towards one another and each accused the other of being either aggressive or emotional during the discussion.

[12] As a result of the call, Mr Winton contacted Ms Sawan’s welfare contact within Victoria Police, Mr Jack Wood, to ask that he undertake a welfare check on Ms Sawan. 18 Though Ms Sawan maintained her contention that she “never said [the words alleged by Mr Winton] to him, not as he portrays them”19 she nonetheless acknowledged during cross-examination that it was reasonable for Mr Winton to make that contact with Mr Wood20 but in her closing submissions Ms Sawan still contends that “Nicholas Winton gaslighted me to Jack. No doubt about that”.21 The word “gaslighting” is used to describe a form of psychological abuse where a person or group makes someone question their sanity, perception of reality, or memories. I do not accept the contention that the request by Mr Winton of Mr Wood to conduct a welfare check amounted to “gaslighting” as that term is understood. There is no evidentiary foundation for the assertion. Mr Winton set out in his evidence that he made the call to Mr Wood out of concern for Ms Sawan’s Welfare based on his impression of what had transpired during his telephone discussion with Ms Sawan.22 Ms Sawan’s subjective views about his motivation is not evidence of that motivation. It seems to me that Mr Winton’s call to Mr Wood was a reasonable response to an uncomfortable discussion he had had with Ms Sawan, particularly as by this stage Ms Sawan had been absent from work (medically unfit) for nearly five weeks. What is clear from the competing versions of the discussion (the substance of which need not be repeated here), is that the discussion was uncomfortable and unproductive.

[13] Ms Sawan was paid her normal salary payments between 5 and 16 July 2021 but in August 2021 Victoria Police became aware that Ms Sawan did not have any leave recorded during this period. 23 Its leave policy provides that if an employee provides a medical certificate and has exhausted personal leave entitlements, the employee may elect to use other accrued leave entitlements or take personal leave without pay [and] if an employee does not nominate a preference, Victoria Police will automatically deduct other accrued leave entitlements.24 Following its leave policy, Victoria Police’s Payroll Services in consultation with Ms Sawan, rectified the issue by applying a portion of her accrued leave balance to that period in order to avoid an overpayment.25

[14] As earlier noted, Ms Sawan remained absent from work pursuant to the medical certificates provided to Victoria Police following the advice given as to the outcome of her complaint. Beyond the general information provided in the medical certificates Victoria Police had no additional information about the nature of the medical condition nor the likely timeframe within which Ms Sawan would be fit to return to work. 26 In early August 2021, Victoria Police commenced to make inquiries about Ms Sawan’s medical condition.27

[15] On 3 August 2021, Mr Winton sent a letter to Ms Sawan seeking an understanding of her capacity to safely perform the inherent requirements of her position. 28 That correspondence set out the information that Victoria Police required to make an assessment as to Ms Sawan’s capacity, the names of three occupational physicians from which Ms Sawan could choose to undertake the assessment, the date by which the election should be made and an indication that if she did not wish to nominate one of the occupational physicians, Victoria Police would do so and would thereafter schedule an appointment.29 As no response to the letter from Ms Sawan was received by the due date, another copy was sent by courier to Ms Sawan’s home on 12 August 2021.30 Ms Sawan responded on 17 August 2021 and provided the necessary authority which Victoria Police had required for Dr Phillip Haynes, one of the nominated occupational physicians, to undertake the assessment.31 Subsequently, a letter dated 17 August 2021 was sent to Dr Haynes requesting that he provide a written report on various questions regarding Ms Sawan’s medical capacity to perform the inherent requirements of her role.32 Ms Sawan was scheduled to be assessed by Dr Haynes on 25 August 2021 at 3:00pm.33 Ms Sawan accepts that she was directed to attend the assessment.34 There is some controversy about what precisely occurred thereafter.

[16] Mr Winton gave the following evidence:

On 24 August 2021, Rima sent me a text message (see NW-12) which said “just called to cancel the appointment as my lawyer is lodging a worksafe claim for me due to being unfit for work”.

I responded on the morning of 25 August 2021 by text, saying:

“Good morning Rima. Thank you for your text message. I confirm that you have been issued with a lawful and reasonable direction to attend the appointment with Dr Haynes at 3.00pm today. It is important for you to attend the appointment today so Victoria Police can understand your fitness for work capacity and your ability to perform the inherent requirements of your position in light of your extended absence from work. The appointment will not be cancelled. Regards, Nick”

At 3:01pm that day, Rita sent me a new medical certificate stating that she was unfit for work from that day until 17 September 2021. She then sent me a text message saying:

“i went out of goodwill even though i have notified u that my lawyer has lodged a claim. On his instruction he asked me not to sign anything. Drs office asked me to sign another consent. i told them that ive already signed one and provided to u and they tried to reach you then rang me to say that there s not enough time to be seen today. they rang me bcos i was putting money in the meter.” 35

[17] Ms Sawan’s evidence in essence was that she attended the appointment as scheduled and was given a consent form to sign. She said that she had been advised not to sign any forms by her lawyer and indicated that she had thought she had already signed a consent form. Attempts were made by staff of Doctor Haynes to contact Victoria Police. Meanwhile Ms Sawan left Doctor Haynes’ office to attend to placing some money in the parking meter at which her car was parked. Whilst there, Mr Swan received a call from one of Doctor Haynes’ staff. During the call Ms Sawan said that she would come back to Doctor Haynes’ office and would review and if necessary, sign the consent form, but says she was told that there was now not sufficient time to conduct the assessment. 36

[18] At 3:13pm on 25 August 2021, Victoria Police received an email from an administrative assistant in Dr Haynes’ office as follows:

“Hello Tara, Nicholas

My colleague Victoria who is working in the office today has advised that Rima has arrived in the rooms, however is refusing to sign the consent form for the assessment. Without the consent form being signed the appointment cannot proceed.

Please contact our rooms urgently on 03 9650 2000 – Victoria has been unable to reach either of you over the phone.

Thank you!” 37

[19] The staff member from Doctor Haynes’ office who interacted with Ms Sawan did not give evidence. Whilst it is unnecessary to make precise findings about what occurred, it is plain and I accept that Ms Sawan attended the appointment as scheduled, she declined on legal advice to sign a consent form which Dr Haynes’ office required before an examination could be undertaken. Thereafter an examination did not take place and the assessment requested by Victoria Police was not made.

[20] On 8 September 2021, Victoria Police sent to Ms Sawan correspondence earlier mentioned requiring her in essence to show cause why her employment should not be terminated because she was unable to safely perform the inherent requirements of her position.

[21] Ms Sawan did not respond to the show cause correspondence. Instead, at 4:47pm on 17 September 2021 the day before a response was due, Ms Sawan sent an email to Ms McPherson as follow:

“Pls find below the actual summary of events copied to me from Dr Haynes office.

As you can see, it does not match what you describe in the review letter you sent me on 8/9/21.

Also attached is an authority that I have signed addressed to Dr Haynes dated 17/8/21.

Subsequently, it is with regret that I inform you my intention to resign from my Unit Manager position with DSSD effective four weeks from today and in accordance with the VPS Enterprise Agreement 2020.

Enjoy your weekend and I hope you and your team stay safe.” 38

[22] Earlier that day Mr Winton had received an email from Ms Bonnie McKernan from Victoria Police Payroll Services attaching a medical certificate for Ms Sawan for the period 16 September 2021 to 14 October 2021. 39

[23] Following receipt of Ms Sawan’s 17 September 2021 email above, Mr Winton received a telephone call from Ms Dhanashekar who told Mr Winton that Ms Sawan had resigned, that she will send him an email about it, and enquiring whether he wanted Ms Sawan to serve out her four weeks’ notice or whether he would accept her resignation effective immediately. 40

[24] Mr Winton responded with words to the effect that as Ms Sawan “has notified me that she’s unfit for work for the next month or so, and, as this is my last day before I go on leave for the school holidays, I’m happy to accept it effective immediately”. 41

[25] Ms Sawan was advised of the truncation of her notice period and purported acceptance of her resignation by email on the same day which relevantly provided as follows:

In accordance with clause 20.3 of the VPS Agreement the minimum required notice based on your length of service is four (4) weeks, unless agreed otherwise.

Please be advised the delegate has accepted your resignation effective immediately, being today – Friday, 17 September 2021.

Payroll will be notified of your resignation and process your final payment accordingly. 42

[26] On 10 January 2022, well after Ms Sawan lodged her application, Ms Ilievski wrote to Ms Sawan in the following terms:

I refer to your previous employment with Victoria Police, which ended with your resignation on 17 September 2021.

As you know, Victoria Police treated your resignation as taking effect on the date it was given, by waiving the requirement that you give notice. However, Victoria Police should have first sought your agreement to bringing your resignation date forward. In the absence of such agreement, your resignation would have taken effect four weeks from the date of your notice, being 15 October 2021.

At the time of your resignation, you were certified by a medical practitioner (by a certificate dated 16 September 2021) as being medically unfit for work until 14 October 2021. You had exhausted all paid leave entitlements other than long service leave, and you had been taking that long service leave to maintain your pay while you were away from work.

The long service leave you may have chosen to take during your notice period was paid out to you upon termination. However, by your resignation being taken as effective on 17 September 2021, rather than 15 October 2021, you did not receive the annual leave entitlement that would have accrued to you during that period. You also did not receive superannuation that would have been paid into your nominated fund during that period.

It is also possible that you would have been medically fit for work on the last day of your notice period, 15 October 2021, which your medical certificate did not cover. It is therefore possible that you may have been entitled to be paid for that day.

Based on the above, Victoria Police will shortly pay an amount of $1086.67 (gross), less any applicable taxation, into your bank account. That amount includes payment for the annual leave that you would have accrued between 18 September and 15 October 2021 (being 11.66032 hours), and one full day’s pay for 15 October 2021.

Victoria Police will also pay an amount of $608.67 ($108.67 Super Guarantee and $500 personal salary sacrifice contribution) into your superannuation fund, being the amount of superannuation you would have received during the period, and also an amount equal to the voluntary pre-tax contribution you had made in the pay run at the time of your resignation. Victoria Police will not require you to make a payment for the amount equal to the voluntary contribution.

Once the payments have been made, which will be in next available pay run, you will receive a payslip setting out the breakdown of these payments.

Please let me know if you have any questions. 43

[27] On 14 January 2022, Victoria Police sent an email to Ms Sawan indicating that the amount to be paid in recognition of Ms Sawan’s notice period would also include an amount for the four weeks of annual leave loading. 44 All payments promised in the two communications with Ms Sawan in January 2022 were made on 14 January 2022.45

Forced resignation?

[28] It is plain that the notice of resignation given by Ms Sawan on 17 September 2021 did not end the employment relationship. Victoria Police correctly, though belatedly, accepted that it was not in a position to accept the resignation as no such acceptance is required nor to unilaterally determine to bring forward the date of effect of the resignation. By doing so, Victoria Police accepts 46 and I find that the employment relationship between Ms Sawan and Victoria Police ended because Ms Sawan’s employment was terminated on the initiative of Victoria Police.

[29] Although it is not necessary to determine whether Ms Sawan was, or more properly, would have been forced to resign because of the conduct or course of conduct engaged in by her employer, for the purposes of determining whether she was dismissed within the meaning of s 386(1)(b) of the Act, a determination of that question is needed in order to properly assess whether the dismissal was unfair and if so to determine what remedy if any should be ordered.

[30] Ms Sawan contends that she was dismissed withing the meaning of s 386(1)(b) of the Act because “I felt forced into tendering my resignation as there was no doubt in my mind that they were going to terminate me on 18 September 2021 as per their review of employment letter dated 8 September 2021”. 47 Although as I indicated earlier, during the hearing of her application Ms Sawan confirmed that the conduct which she contends forced her to resign was confined to the show cause process48 and she does not say that she resigned because of any complaint that she made, but rather because she felt that the outcome of the show cause was going to be her dismissal,49 as other bases for a forced resignation were raised in some of the written material filed, I will for completeness deal with those bases. Ms Sawan also contends that that “I felt bullied into resigning and my pleas for an alternate work arrangement and secondment were blocked and decisions not communicated directly to me so that I can follow process by way of review of actions in a timely manner”.50 Ms Sawan points to the earlier mentioned payment rectification issue in August of 2021 as proof that the plans were in process to terminate her employment as Victoria Police would not have been able to recover payments following a termination.51

[31] The essential question requiring determination when an employee contends that they were forced to resign because of an employer’s conduct is whether the conduct was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign. 52 Put another way the question is whether Ms Sawan had no reasonable choice but to resign by reason of the conduct of Victoria Police about which she complains. And the focus is on the conduct of Victoria Police, rather than any subjective beliefs of Ms Sawan.53

[32] Dealing with the first contention, the evidence discloses that Ms Sawan was directed to attend an independent medical assessment for the purpose of providing Victoria Police with information to assess her capacity to perform the inherent requirements of her position in circumstances where she had been absent from work for some time and without any indication as to the likely date on which she would be fit to resume her duties or the nature of her medical condition. For the reasons discussed earlier, although Ms Sawan attended the scheduled appointment after earlier attempting to cancel it because she was medically unfit, the examination did not proceed and an assessment was not made.

[33] Ms McPherson wrote to Ms Sawan on 8 September 2021 (the relevant text of which is earlier extracted) indicating that Victoria Police had taken steps to obtain relevant medical information to understand her capacity to safely perform the inherent requirements of her substantive position, but that Ms Sawan has failed to participate in the process. The letter indicated that Victoria Police proposed to terminate Ms Sawan’s employment on the basis that she was unable to perform the inherent requirements of her role. She was given until 18 September 2021 to respond to that proposal.

[34] The letter stressed that its purpose was to provide Ms Sawan “with a full and fair opportunity to respond to the proposed termination” and urged her to provide any medical information she considered relevant as to why her employment should not be terminated on grounds that she was unable to perform the inherent requirements of her role. She was also advised that the further information could include further medical information about her capacity to perform the inherent requirements of her position within the foreseeable future.

[35] At the time of sending the letter Victoria Police had little or no information about Ms Sawan’s capacity to perform the inherent requirements of her position, other than the knowledge that her extended absence was certified on unspecified medical grounds.

[36] The text and context of the letter of 8 September 2021 do not suggest a foregone conclusion but rather a preliminary assessment based on the information to hand. Whether the preliminary assessment was justified in the circumstances is beside the point. That which is relevant is that no concluded view had been formed and Victoria Police was inviting Ms Sawan to provide medical evidence as to her capacity to perform the inherent requirements of her position either immediately or within the foreseeable future. Ms Sawan could have provided additional medical evidence but chose not to do so. She could have responded to the correspondence by communicating her version of events on 25 August 2021. She could have said she was willing to participate in an assessment by Doctor Haynes. She did not do so. In short Ms Sawan had the opportunity to persuade Victoria Police that she was, or would in the foreseeable future be, able to perform the inherent requirements of her position or to cooperate with Victoria Police in obtaining a medical assessment as to her capacity.

[37] By doing so she might well have been able to persuade Victoria Police to depart from its preliminary view. Indeed, had she indicated a willingness to undertake an assessment, it would have been surprising if Victoria Police had not departed from its preliminary view. Instead, on 17 September 2021 she gave notice of her resignation. In the circumstances there was nothing unreasonable in Victoria Police seeking medical information about Ms Sawan’s capacity. By engaging in this conduct and even by forming a preliminary view that she was unfit to perform the inherent requirements of the position and as a consequence that her employment might be terminated, Victoria Police did not engage in conduct that was of such a nature that resignation was the probable result or that Ms Sawan had no effective or real choice but to resign. To the contrary, Ms Sawan had real and viable available options, which had she acted upon them, might well have resulted in her continued employment. The tendering of her resignation was the product of Ms Sawan making an effective and real choice instead of pursuing the other real and viable available options. Consequently, I am not persuaded that Ms Sawan was forced to resign by reason of the conduct discussed above. Her subjective view that “I felt forced into tendering my resignation” takes the matter no further.

[38] The contention that she felt bullied into resigning and that her pleas for an alternate work arrangement and secondment were blocked, is at best tenuous. The allegation does not appear in her application and only emerged in the material filed in preparation for the hearing. Her feelings about being bullied take the matter no further. The evidence as to the reasons for the refusal of requests for a secondment and alternative work arrangements appear sound and were not the subject of any cross-examination. Describing the refusals as having her requests “blocked” amounts to no more than a subjective description, not borne out by the evidence, from a person plainly disappointed that her requests were refused.

[39] As to the workplace conflict issues as contributors to her resignation, Ms Sawan had no entitlement to be reclassified in the position she occupied despite her views as to her skills and experience. Any reclassification dispute could have been processed under the dispute settlement procedure of the applicable enterprise agreement. The refusal of a reclassification was not conduct of such a nature that resignation was the probable result or that Ms Sawan had no effective or real choice but to resign. As to the conduct about which she complained in her correspondence of 26 May 2022, that conduct had been dealt with by Victoria Police and the outcome communicated to Ms Sawan. She had been absent from work both before she made the complaints and since she was advised of the outcome. She therefore did not have the opportunity to assess whether the proposed local management interventions had a positive effect on the relations between her and those about whose conduct she complained. Also, as earlier noted, Ms Sawan said she would have welcomed the opportunity to participate in the local management interventions recommended by Ms Dhanashekar, had Mr Winton “not interfered in the process and gaslighted me to the wellbeing officer”. For the reasons earlier given, the “gaslighting” description of Mr Winton’s conduct is neither apposite nor made out. There is nothing in the conduct of Victoria Police in refusing any reclassification or secondment, or in the way it dealt with Ms Sawan’s complaint which raises to the level of conduct of such a nature that resignation was the probable result or that Ms Sawan had no effective or real choice but to resign. Nor does Mr Winton’s conduct about which complaint is made rise to that level.

[40] Finally, Ms Sawan’s contention that the earlier mentioned payment rectification issue in August of 2021 is proof that plans were in process to terminate her employment as Victoria Police would not have been able to recover payments following a termination, is baseless and is not accepted. The events which led to the sending of the 8 September 2021 letter were yet to transpire. The payment rectification issue is proof only that Victoria Police was seeking to rectify a pay related issue as it was entitled and required to do. Moreover, the underlying assumption in the contention – that an overpayment could not be recovered from an employee after termination of employment – is erroneous.

[41] Ms Sawan was not given any ultimatum to resign, and she was not deprived by reason of any of the matters discussed above of a real and effective choice but to resign. Moreover, during cross-examination, Ms Sawan gave the following evidence:

But you thought, as you say in your submission that if you were to be terminated in accordance with that process your employment was to be terminated in accordance with that process that that would be adverse for future employment opportunities for you?---It is definitely because it is a question asked in every public service job you apply for.  There is a series of questions - Are you under investigation?  Have you been terminated from a position?  And that is common knowledge because I have applied for so many jobs in my life I know that off by heart. 54

[42] This is consistent with Ms Sawan’s chronological statement of evidence. 55 All of this is consistent with a choice made to resign rather than to participate in the “show cause” process which was then underway.

[43] It follows from the forgoing that I am not persuaded Ms Sawan’s notice of resignation given on 17 September 2021, which but for an intervening event would have resulted in the ending of the employment relationship on 15 October 2021, would have meant that she was dismissed withing the meaning of s 386(1)(b) of the Act.

Whether dismissal was unfair

Protection from unfair dismissal

[44] An order for reinstatement or compensation may only be made if I am satisfied Ms Sawan was, at the date of the dismissal, protected from unfair dismissal under the Act and that the dismissal was unfair. Section 382 of the Act sets out the circumstances that must exist for the Applicant to be protected from unfair dismissal as follows:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[45] There is no dispute, and I am satisfied, that Ms Sawan was, on 17 September 2021, protected from unfair dismissal within the meaning of s 382. Ms Sawan’s dismissal will have been unfair if, on the evidence, I am satisfied that all the following circumstances set out in s 385 of the Act existed:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[46] For the reasons earlier stated there is no dispute that Ms Sawan was dismissed at the initiative of Victoria Police within the meaning of s 386(1)(a) of the Act and s 386(1)(b) is not engaged. Victoria Police is not a Small Business employer, so the Code is not engaged, and the dismissal of Ms Sawan was not a case of genuine redundancy within the meaning of s 389. Ms Sawan was dismissed because Victoria Police erroneously accepted the resignation and unilaterally brought forward its date of effect.

[47] That leaves the question whether Ms Sawan’s dismissal was harsh, unjust or unreasonable to be determined.

Harsh, unjust or unreasonable

[48] A consideration of whether a dismissal was harsh, unjust or unreasonable, requires the following matters in s 387 of the Act be taken into account:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[49] A statutory requirement that a matter be taken into account means that the matter is a ‘relevant consideration’ and is a matter which the decision maker is bound to take into account. 56 To take into account the matters set out in s 387 means that each of the matters must be treated as a matter of significance in the decision-making process57 and requires the decision maker to evaluate it and give it due weight, having regard to all other relevant factors.58 In weighing relevant matters, the weight given to a particular matter is ultimately a matter for the Commission subject to some qualifications, which for example might lead a court to set aside a decision if the decision maker has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance.59

[50] As to the phrase “harsh, unjust or unreasonable”, a dismissal may be harsh but not unjust or unreasonable; it may be unjust but not harsh or unreasonable; or may be unreasonable but not harsh or unjust. There will be cases where these concepts will overlap. In any given case all the concepts may be present, or only some, or none. A dismissal may be unjust because the employee was not guilty of the misconduct on which the employer acted. It may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. And may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 60 But the assessment of whether any or all of these concepts are present in a given case of dismissal is undertaken in a statutory context and it is the matters set out in s 387 of the Act to which regard must be had in assessing whether a particular dismissal was harsh, unjust or unreasonable. I deal with each of these matters below.

[51] Before doing so I should note that Ms Sawan has not engaged, in her various written submissions filed both before and after the hearing, with the matters in s 387, or with how any of these matters should be assessed in light of the evidence, or with the weight I should ascribe to any particular matter. Ms Sawan has instead focussed almost exclusively on the matter which she says forced her to resign, a contention I have rejected for the reasons earlier given.

Valid reason – s 387(a)

[52] The essence of a valid reason is that the reason is a sound, defensible or a well-founded reason – one that is not capricious, fanciful, spiteful or prejudiced. 61 The issue is whether there was such a valid reason related to Ms Sawan’s capacity or conduct. As already noted, Ms Sawan was dismissed because Victoria Police erroneously accepted the resignation and unilaterally brought forward its date of effect. This is not on any view a valid reason related to Ms Sawan’s capacity or conduct. Victoria Police contends that the question whether it had a valid reason to dismiss Ms Sawan based on her performance (capacity) or conduct in s 387(a) is not relevant.62 I disagree. The relevant question is whether there was a reason for the dismissal which meets the description in s 387(a). The answer is no. The circumstances of the dismissal, which arose from the notice of resignation (which I have found to have been freely given), its erroneous acceptance and the unilateral truncation of the period of notice, are matters which are to be assessed in the weight that is to be assigned to the absence of a valid reason.

[53] The absence of a valid reason for Ms Sawan’s dismissal weighs in favour of a conclusion that the dismissal was unfair but the circumstances in which the dismissal was effected means that the weight assigned is not significant.

Notification of the reason for dismissal and opportunity to respond – s 387 (b) – (c)

[54] Notification of a valid reason for termination should be given to an employee protected from unfair dismissal before the decision is made, 63 in explicit terms,64 and in plain and clear terms.65 This is an element which may be described as procedural fairness in order that an employee may respond to the reason. Procedural fairness requires that an employee be notified of the reason for the dismissal before any decision is taken to terminate employment in order to provide them with an opportunity to respond to the reason identified. Section 387(b) and (c) would have little practical effect if it was sufficient to notify an employee and give them an opportunity to respond after a decision had been taken to terminate employment.66 An employee protected from unfair dismissal should also be given an opportunity to respond to any reason for dismissal relating to the employee’s conduct or capacity.

[55] Because of the circumstances in which the employment relationship ended there was only notification of the dismissal (by communicating acceptance of the resignation and the unilateral truncation of the notice) but as there was no valid reason related to Ms Sawan’s capacity or conduct there was no communication of that reason nor an opportunity to respond to the reason. In the circumstance this consideration weighs neutrally.

Any unreasonable refusal by the employer to allow the person to have a support person – s 387(d)

[56] There were no discussions relating to the dismissal. Consequently, this consideration does not arise.

Warnings regarding unsatisfactory performance – s 387(e)

[57] The dismissal of Ms Sawan was not related to any unsatisfactory performance and so this consideration does not arise.

Impact of the size of the Respondent on the procedure followed – s 387(f)

[58] The consideration in s 387(f) is not concerned with standards but with the likely impact on the procedures followed of the size of the employer’s enterprise. Victoria Police is a large and well-resourced employer. Its size and available resources ought to have meant that it had available or could have accessed advice about its capacity to unilaterally alter or truncate the notice given of Ms Sawan’s resignation before taking the step it did. But its size did not impact on the procedure it adopted to effect Ms Sawan’s dismissal. The problem here was undue haste. This consideration weighs neutrally.

Absence of dedicated human resources management specialist/expertise on procedures followed – s 387(g)

[59] This consideration is concerned with “the degree to which the absence of dedicated human resources management specialists or expertise” would be likely to have impacted on the procedure it adopted to effect Ms Sawan’s dismissal. Victoria Police has dedicated human resources management specialists or expertise available to it. The consideration does not arise.

Any other matters that the Commission considers relevant – s 387(h)

[60] Victoria Police submits and I accept that it is relevant, in assessing whether the dismissal of Ms Sawan was harsh, unjust or unreasonable, to consider the position in which Ms Sawan would have found herself but for the erroneous intervention by Victoria Police in unilaterally truncating the period of notice given by Ms Sawan.

[61] But for the intervening event Ms Sawan’s employment would have ended on 15 October 2021. Her notice of resignation was communicated in writing, it was unequivocal, and gave four weeks’ notice of the effect of her resignation. I have already concluded that the resignation was not (or would not have been) a forced resignation. At the conclusion of her employment on 15 October 2021, she would have been paid in various accrued entitlements as well as wages, if any, during the notice period, and bearing in mind that she was medically unfit as certified by her doctor to work during the preponderance of the notice period.

[62] As I have earlier noted Victoria Police has since taken steps to put Ms Sawan in the position that she would have been in had she continued to be employed in her position for the entirety of her notice period in accordance with her notice of resignation. It has written to Ms Sawan to notify her that she will be paid the entitlements she would have received had she remained employed during her notice period, noting that she was medically certified as being unfit for all but one day of that period and had exhausted her personal leave and that the payment includes a sum which assumes Ms Sawan would have been able to return to work on the last day of her notice period. Victoria Police also paid an amount into Ms Sawan’s superannuation fund equal to the voluntary pre-tax contribution Ms Sawan had made from her final pay. All these payments were made by Victoria Police on 14 January 2022. 67 This action is, in my opinion, a significant consideration in assessing overall whether in the circumstances Ms Sawan’s dismissal was harsh, unjust or unreasonable.

[63] Neither party identified any other matter which might be relevant and as I have already noted, Ms Sawan did not engage with the considerations in s 387 of the Act.

Conclusion

[64] In the result there was no valid reason for the dismissal related to Ms Sawan’s capacity or conduct, a consideration which weighs slightly in her favour. The other mandatory considerations discussed above either way neutrally or do not arise in the circumstances. Weighed against the absence of a valid reason is the fact that Ms Sawan’s employment would have come to an end on 15 October 2021 by reason of the notice of resignation given by her on 17 September 2021. The steps taken by Victoria Police to put Ms Sawan back in the position she would have been in but for its erroneous intervention following the notice of resignation are significant in the overall assessment and outweigh the absence of a valid reason. I am therefore not satisfied that Ms Sawan’s dismissal was harsh, unjust or unreasonable. The dismissal was therefore not unfair. Consequently, the application should be dismissed.

[65] However, even if I am wrong in this conclusion and there is some unfairness in dismissal of Ms Sawan by Victoria Police (and bearing in mind that the dismissal constituted the erroneous truncation of the notice period given in a resignation tendered by Ms Sawan which was not a forced resignation) I do not consider it is appropriate to order any remedy in the circumstances. My reasons for this conclusion may be briefly stated.

[66] As to reinstatement, firstly, as Ms Sawan resigned from her employment with Victoria Police by notice, which would have taken effect on 15 October 2021, an order for reinstatement would operate well beyond the period of employment that Ms Sawan had indicated by her resignation that she wanted to remain employed. That Ms Sawan now regrets having tendered her resignation is not a reason to order reinstatement and to override what was otherwise or would otherwise have been a valid and effective resignation. Secondly, but for the erroneous intervention by Victoria Police, Ms Sawan’s application for a remedy could only have proceeded upon the basis that she was dismissed because she was forced to resign. For the reasons earlier given that case would have failed, consequently the question of remedy would not have arisen. For these reasons reinstatement of Ms Sawan would be inappropriate.

[67] As to compensation, a starting point for the assessment of compensation would be to assess the remuneration that Ms Sawan would have received or would likely have received if she had not been dismissed. This would involve assessing the period of likely ongoing employment but for the dismissal. In many cases such an assessment involves a degree of speculation but in this case the precise period of likely ongoing employment is known. But for the erroneous intervention by Victoria Police, the employment of Ms Sawan by Victoria Police would not have continued beyond 15 October 2021. The steps taken by Victoria Police, earlier discussed, to rectify the financial position of Ms Sawan so as to put her in the position she would have been in but for its erroneous intervention means that the assessment of any compensation taking into account all of the matters required by s 392(2) of the Act would result in an outcome of zero. This is because Ms Sawan has now not suffered any financial loss by reason of the dismissal.

[68] Compensation under the Act can only be ordered if it is appropriate in all the circumstances. Given the absence of any financial loss consequent upon Ms Sawan’s dismissal by Victoria Police, it would plainly be inappropriate to make a compensation order.

Order

[69] I order that the application in U2021/8981 be dismissed.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR739675>

Appearances:

Ms R Sawan on behalf of herself

Mr M Garozzo of Counsel on behalf of the respondent

Hearing details:

2022

Melbourne (via video)

19 January

Final written submissions:

Applicant, 8 February 2022 and 1 March 2022

Respondent, 22 February 2022

 1   Correspondence to Ms Sawan from Belinda McPherson, Director Recruitment, Development and Workplace Relations Division, Human Resources Department dated 8 September 2021

 2   Transcript PN864-PN873

 3   Transcript PN869-PN870; Ms Sawan does not take issue with this proposition – see Closing submissions of the Applicant (blue text following [3.3])

 4   Transcript PN137-138

 5   Transcript PN141

 6   Ibid

 7   Exhibit 7 at [26] – [33]

 8   Exhibit 8 at [6] – [7]

 9   Ibid at [8] – [9]

 10   Ibid at [12]; see also email correspondence from Ms Sawan to Ms Tara Simmons, the then Acting Senior Workplace Relations Lead dated 26 May 2021

 11   Ibid at [13]

 12   Ibid at [13]

 13   Ibid at [14]-[15]

 14   Ibid at [17]; see also correspondence from Ms Ilievski to Ms Sawan dated 16 July 21

 15   Applicant’s Response to Ms Ilievski’s Statement, page 3 [2]

 16   Exhibit 7, annexure NW-10

 17   Email from Ms Sawan to Ms Simmons dates 17 June 2021

 18   Exhibit 7 at [70]

 19   Transcript PN439

 20   Transcript PN438

 21   Applicant’s Annotated Transcript, annotations to PN437 and PN438

 22   Exhibit 7 at [69]-[70]

 23   Exhibit 8 at [19]-[20]

 24   Ibid at [21] and Annexure NI-3

 25   Ibid at [22]

 26   Ibid at [25]

 27   Ibid at [27]

 28   Exhibit 7 at [77] – [79]; see also annexure NW – 14

 29   Exhibit 7; annexure NW – 14

 30   Exhibit 7 at [80]

 31   Ibid

 32   Ibid at [81]; see also annexure NW – 15

 33   Ibid at [82]

 34   Transcript PN450

 35   Exhibit 7 at [83]-[85]

 36   Transcript PN448-PN530; See also Response to Outline of Submissions of the respondent at [4.12] and Closing submissions of the Applicant (in reply) at [5.5]

 37   Exhibit 8 at [33] and annexure NI -4

 38   Exhibit 7, Annexure NW-17

 39   Exhibit 7 at [87] and annexure NW-16

 40   Ibid at [88]

 41   Ibid at [89]; see also at [90] and annexure NW-17

 42   Exhibit 8 at [42] and Annexure NI-6

 43   Ibid at [46] and annexure NI-7

 44   Exhibit 9 at [5] and Annexure NI-9

 45   Ibid at [6]

 46   Outline of submissions of the Respondent at [4.3]

 47   Applicant’s outline of Argument at [6b]

 48   Transcript PN864-PN873

 49   Transcript PN869-PN870; Ms Sawan does not take issue with this proposition – see Closing Submissions of the Applicant (blue text following [3.3])

 50   Ibid

 51   Ibid

 52   See Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 at 206; P O’Meara v Stanley Works Pty Ltd [2006] AIRC 496; Bupa Aged Care Pty Ltd v Tavassoli [2017] FWCFB 3941 at [34]

 53   See Bupa Aged Care Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]

 54   Transcript PN584

 55   Exhibit 1 – 17 Sep 21

 56   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24; see also Griffiths v The Queen (1989) 167 CLR 372 at 379; Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] and cited in Hasim v Attorney-General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65]

 57   Friends of Hinchinbrook Society Inc v Minister for Environment (No 3) (1997) 77 FCR 153; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121; Edwards v Giudice [1999] FCA 1836 and National Retail Association v Fair Work Commission [2014] FCAFC 118

 58   Nestle Australia Ltd v Federal Commissioner of Taxation (1987) 16 FCR 167 at 184

 59   Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others [1986] HCA 40, (1986) 162 CLR 24 at [15]

 60   Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410 at 465

 61   Selvachandran v Peteron Plastics Pty Ltd [1995] IRCA 333, (1995) 62 IR 371 at 373

 62   Outline of submissions of the Respondent at [5.2]

 63   Chubb Security Australia Pty Ltd v Thomas Print S2679 at [41]

 64   Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at [150]–[151]

 65   Previsic v Australian Quarantine Inspection Services Print Q3730

 66   See also Crozier v Palazzo Corporation Pty Ltd (2000) 98 IR 137 at 151 which was dealing with the corresponding provisions in s.170CG(3)(b) and (c) of the Workplace Relations Act 199

 67   Exhibit 9 at [6]