DECISION

Fair Work Act 2009
s.365 - Application to deal with contraventions involving dismissal

Boyd Andrews
v
Pradella Developments Pty Ltd & Kim Pradella

(C2021/6503)

Application to deal with a general protections dispute involving dismissal – jurisdictional objection – whether Applicant was dismissed – the Applicant was dismissed – jurisdictional objection dismissed

[1] Boyd Andrews (the Applicant) lodged an application with the Fair Work Commission (the Commission) pursuant to s.365 of the Fair Work Act 2009 (the Act) to deal with a general protections dispute in relation to the termination of his employment by Pradella Developments Pty Ltd (the First Respondent) and Kim Pradella (the Second Respondent) (collectively, the Respondents).

[2] The Applicant had been employed by the First Respondent as a design manager since 1 December 2003. The Applicant alleges that he was notified of his dismissal on 1 September 2021, effective immediately. The Respondents dispute that the Applicant’s employment was terminated at their initiative. Instead, they assert that he resigned. If the Commission determines that he resigned, the Applicant pleads in the alternative that the resignation occurred in the heat of the moment, in that he was in a particular state of emotional distress and confusion, such that it was not a legally effective resignation, and the termination of his employment was in fact at the First Respondent’s initiative per s.386(1)(a) of the Act. Given the findings made below, it is unnecessary for me to consider the alternative argument.

[3] The jurisdictional objection was allocated to my Chambers. Directions were issued with respect to the filing of material and the matter was listed for hearing on 26 November 2021, at which both parties sought to be represented at the hearing. Granting permission to be represented under s.596 requires that the Commission be satisfied of the presence of one of the criteria under s.596(2) and give “consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.” 1 This process “involves an evaluative judgment akin to the exercise of discretion.”2

[4] In the interests of hearing the discrete jurisdictional point in an efficient and effective manner, I was satisfied that that it was appropriate to grant both parties permission to be represented. Accordingly, Mr Mossman from Wotton Kearney Lawyers appeared for the Applicant and Mr Heath of Carter Newell Lawyers appeared for the Respondents at the hearing which was held virtually on 26 November 2021.

[5] The primary question before me was whether there was a dismissal within the meaning the Act. Both parties referred to the significance of the conversation that occurred between the Applicant and the Second Respondent on 1 September 2021. However, it is worth briefly summarising the events which led to that conversation.

Events leading to 1 September 2021

[6] In July 2021, the Applicant made a request for two-weeks of annual leave in August 2021. Over the course of his nearly two decades of employment with the Respondent, he had accrued significant annual and long service leave entitlements. The basis of the Applicant’s leave request was so that he could investigate some health concerns. This was articulated – albeit in a cursory way – to the Second Respondent. The leave request was refused because it overlapped with a material milestone of a project on which the Applicant was a key worker.

[7] The Applicant was referred to specialists to undergo a colonoscopy and endoscopy procedure which were scheduled in early September. On 3 August 2021, the Applicant made a further request for two-weeks of annual leave in September 2021, after the key milestone was to be met. This leave was for the purpose of undergoing the necessary procedures, as well as a period afterward to recover and deal with the outcome of those procedures. This request for leave was also refused.

[8] In late August 2021, the Second Respondent made changes to the project in question. The Applicant formed the view that the material milestone date of 1 September 2021 was likely to require extension to at least 1 November 2021. The Respondents’ assert that the milestone date had been moved until 8 October 2021. The Applicant asserts that he was not aware of this change at the time of his request for leave. This point was the subject of contested evidence which will be dealt with below.

[9] Nevertheless, the Applicant made a further request for two-weeks of annual leave in September 2021 on the evening of 30 August 2021 (the Final Leave Request). This request was the catalyst for the events on 1 September 2021.

The Applicant’s evidence

[10] The Applicant’s evidence was that in the morning of 1 September 2021, the Second Respondent pulled him aside to discuss his Final Leave Request. The Applicant says that he continued to press for the leave in September and explained the reasons for it, to which the Second Respondent purportedly said words to the effect that “we’re at an impasse. You should rethink your position”. When the Applicant continued to press for the leave, stating that the need for the leave had not changed, the Second Respondent responded, “we’re done then”.

[11] The Applicant denied ever saying at the 1 September meeting that he did not care and that he was going to take his leave. He stated in evidence that if he was not able to have the procedures during the period of leave requested, he would have experienced a significant delay in dealing with his health concerns given the next available appointment was in the new year.

[12] Following the conversation with the Second Respondent on 1 September 2021, the Applicant was shocked returned to his desk and texted his wife, “I am gone, fired”. He also told his colleague that he had just been let go when she asked what was wrong. Shaken, he left the workplace at around 11am.

[13] On 2 September 2021, the Applicant returned to work to pack up his things. The Second Respondent asked him to come for a coffee. At the café, the Applicant stated that, “I don’t want to leave. I only need the holiday”. The Second Respondent again stated that they were at an impasse and proposed a mutual dissolution of his employment. The Applicant reiterated that, “I don’t wish to lose my job just take a holiday for health concerns”. During that conversation, it became clear to the Applicant that the Second Respondent’s mind had not changed since the day before and that the Applicant’s employment was at an end. In those circumstances, the Applicant told the Second Respondent that “if it is over then make it over effective immediately”.

[14] On 3 September 2021, the Applicant received an email from the First Respondent which referred to a mutual agreement to end the employment, provided a draft Settlement Deed and offered an additional payment of 12 weeks’ notice to the Applicant in return for its execution.

[15] On 10 September 2021, the Applicant responded to that email indicating that his understanding was that he had been terminated as at 1 September 2021.

The Applicant’s submissions

[16] The Applicant’s case was four-fold:

(a) If the Applicant repudiated the employment contract (which is denied), the acceptance of that repudiation by the Respondents is an act which constitutes a dismissal within the meaning of s.383(1)(a) of the Act;

(b) In the alternative, it was the Respondents by using the words that the parties were at an “impasse” and the phrase “sorting out the terms of your exit” who terminated the employment on 1 September 2021;

(c) In the alternative, there was no conduct by the Applicant which could be said to amount to a termination of the employment at the Applicant’s initiative; or

(d) In the alternative to (a), (b) and (c) above it was the Respondents’ conduct which forced the Applicant to leave the employment within the meaning of s.386(1)(b) of the Act.

[17] In respect of the repudiation of the employment contract by the Applicant, his representatives pointed to the Commission in Saranov v KJ & J Roman No. 2 Pty Ltd where Senior Deputy President Richards dealt with the matter where the employer had accepted the repudiation by an employee who absented themselves from the workplace during the completion of a critical task. 3 In that case, the Commission held – in keeping with authorities from superior courts – that acceptance by the innocent party of a repudiation is necessary to terminate the contract. That is, an unaccepted repudiation does not terminate a contract. This proposition has been applied to contracts of employment.4

[18] If the Applicant repudiated the contract (which the Applicant denies), the Respondents still had the choice of accepting or rejecting the repudiation and insisting on performance or waiver. On their own case the Respondents chose to accept the repudiation which is the act of terminating the employment within the meaning of s.386(a) of the Act.

[19] The Applicant asserts that contrary to the Respondent’s intimations, his absence for two weeks would not result in a stoppage of work on the project. He had ensured that work had been allocated to the consultants during his time off on leave and that work on the project would still be undertaken whilst he was away.

[20] In any event, the Applicant submits that there is no evidence before the Commission that if a direction had of been given to the Applicant that he must attend the work on 6 September 2021 and not take any annual leave that he would not have ultimately complied with that direction (assuming it was lawful and reasonable). What might have happened if the parties continued their discussions about leave between 1 September and 6 September is a matter of pure speculation because the Applicant was dismissed by the Respondent.

[21] On the Applicant’s behalf, his representatives asserts that it should not be lightly inferred is that, with approximately 17 years of service with the Respondent and a significant amount of accrued sick leave, the Applicant would freely and voluntarily resign in circumstances where he was facing a potential cancer diagnosis.

[22] Further, the Applicant submits he was entitled to make requests for annual leave, there is no limit to the number of times he was entitled to do so and he was legally protected from any adverse action in seeking to exercise this right. His requests cannot properly be divorced from his personal circumstances, which were outlined above.

[23] The Applicant submits that the language used by the Second Respondent during their conversation on 1 September 2021 were consistent with an employer terminating an employee at their own initiative. In particular, the Applicant points to the use the word “impasse” and the phrase “sorting out the terms of your exit”. The Applicant also stated that the Second Respondent stated that “we’re done then”, though it must be noted that the Second Respondent denies saying such a thing.

[24] The Applicant asserts that he never said anything that that would indicate he was resigning or otherwise voluntarily leaving his employment. Rather, he indicated that he did not want to leave his employment but rather needed a couple of weeks of annual leave to deal with his health concerns. He claims that there was nothing in his language that suggested he would defy any lawful and reasonable direction to attend work or that he was voluntarily leaving his employment.

The Respondents’ evidence

[25] The Second Respondent gave evidence on behalf of the Respondents. His evidence was that it was a fundamental operational requirement of the Applicant’s employment that the Respondents achieve the project milestone date 8 October 2021 and that the Applicant was aware of that date. To support that assertion, he points to the minutes of a meeting that he says was attended by the Applicant on 24 August 2021.

[26] The Second Respondent stated that the Applicant had a unique skill set which made him an integral part of the business.

[27] In respect of the conversation between himself and the Applicant, the Second Respondent stated:

“When I saw the [Final Leave Request] come through on the 31st, I was away. I came in on the morning of the 1st, grabbed Boyd and had a chat. I spoke to him about the fact that I thought we'd had those conversations many times before and that we were at an important part of the project. I said that I couldn't approve any leave and I thought I was entitled to say that. Boyd said he wasn't prepared to change his holiday times and I formed the view that there was no further opportunity to - we'd reached an impasse basically”.

[28] Of the significance of the period of leave sought by the Applicant, the Second Respondent stated that given the impending milestone on 8 October 2021, the Applicant’s absence during the period of leave requested would have made reaching that deadline untenable. Indeed, the Applicant was particularly important to the project which had been given the 8 October 2021 milestone; so much so that his departure from the company impacted the Respondents’ ability to meet that milestone. At the time of the hearing, the Respondents had not been able to replace him.

[29] The Second Respondent asserted that despite being at an impasse with the Applicant, he did not want to lose the Applicant as a resource and offered to engage the Applicant as a consultant. This would have been for a short period of time – perhaps 12 months – and was only offered once it became clear to the Second Respondent that, he says, the employment relationship was ending. This offer was declined.

[30] The Second Respondent’s evidence was that until the milestone was reached, no annual leave was being entertained. He says that the Applicant:

“…said he wanted to have the holiday. He did mention that he had something with his bowel and heart. I kept treating that all in the vein of the fact that we'd spoken about he was doing a colonoscopy, there was no issues on the fact that he could take sick leave, but he kept talking about holidays and so that was my view and, based on that, he wasn't prepared to change his holidays, and he kept using the work 'holidays', and that's when I said we'd reached an impasse and we'd talk about it on Thursday and Friday regarding the exit.”

[31] The Second Respondent denied ending the conversation with the Applicant with the words, “we’re done then”.

[32] During the conversation at the coffee shop on 2 September 2021, the Second Respondent stated that:

“I reiterated once again that I couldn't approve it [the leave], because of the materials milestones, I couldn't approve his holidays. He reiterated that he wanted to take the holidays, so we then went down a path of, 'Can you work till the end of October?' He said, no, he would prefer to draw the line on 1 September””

[33] The Second Respondent denied that he was angry or irate by the Applicant’s Final Leave Request. He said he was surprised and disappointed, given the Applicant would have been aware of the significance of the upcoming milestone. His view was that the Applicant’s continued requests for leave in September, despite the Respondents’ denials of it and at such a critical time in the project’s life, sent a signal that the Applicant was not prepared to continue his employment.

[34] The Second Respondent said that on 1 September 2021 it was clear to him that they were at an impasse because he did not think he had to approve the annual leave and the Applicant was not prepared to withdraw his request. This was confirmed in the Second Respondent’s mind following the discussion with the Applicant on 2 September 2021.

Respondents’ submissions

[35] The Respondents submit that the Applicant’s employment was not terminated at the initiative of the employer – but rather ended at the Applicant’s initiative – and thus was not a dismissal within the meaning of the Act so as to enliven the Commission’s jurisdiction. The Respondent helpfully summarised a number of authorities which considered the meaning of “dismissal” within the Act. I have considered those authorities in more detail below.

[36] As to how the law applies to the facts, the Respondents made a number of submissions. First, that the Applicant’s insistence upon taking leave, which he lodged by way of a calendar invite sent on 30 August 2021 after having the leave request previously rejected, and which he insisted upon taking at the meeting with the Second Respondent on 1 September 2021, was unreasonable. He was a key person responsible for ensuring that the Respondents met the milestone in question. Given the operational requirements and the impending milestone date, the Respondents’ refusal to accommodate the leave was not unreasonable.

[37] Second, any suggestion by the Applicant that he was not fully aware of the 8 October milestone cannot be accepted. To accept that proposition one would have to determine that a key person in the project was unaware of the date and that he was operating on an entirely different timeframe for the project, from the Second Respondent, who was funding the project, and everyone else on the design team. Further, there was no discussion between the Applicant and the Second Respondent about the delaying of the deadline until November.

[38] Third, the Respondents submit that the end of the Applicant’s employment came about because the Applicant himself had repudiated the employment contract by insisting upon taking leave during at a critical time. The Respondents reject the notion that the termination date was triggered by their conduct, arguing that such a proposition is inconsistent with the Applicant’s evidence to the effect that it was he who nominated the date of termination of 1 September 2021.

[39] In respect of the termination of the Applicant’s employment, the Respondents submit that it occurred by way of mutual agreement.

[40] The Respondents sought to distinguish the present circumstances from Stevens v Horsley Park Supermarket Pty Ltd trading as Carlo’s IGA Horsley Park, in which the Commission upheld an unfair dismissal application by an employee who took a holiday which had not been approved by her employer.  5 In that case, the Commission took the view that “The employer decided to construct a disingenuous portrayal of the circumstances that involved the real reason for the dismissal of the applicant.” 6 No such observation can be made in the present case.

[41] Importantly, in Stevens, the Commission observed that, whilst an employer must not unreasonably refuse a request by an employee to take annual leave, the criteria relevant to the decision as to whether there was an unreasonable refusal, is a matter which “involves careful assessment of all the particular circumstances of each case. Matters such as the nature and size of the employer’s business operation, and the period of notice provided for any requested leave, are matters of significance in any assessment of whether refusal to grant leave was unreasonable”.  7 Unlike in that case where the Respondent did not deny the Applicant’s request for leave until some 10 weeks after it was made and only around two weeks before her international departure date, the Respondents in the present case responded quickly and efficiently and the date in question was only weeks away.

[42] Among others, the Respondent pointed to a case in which the denial of leave had been held to be reasonable, 8 one in which employees had worked off the job,9 and another where an employee who held strong and censorious views about the conduct of her employer and her immediate supervisor had been taken to have resigned.10 For the reasons set out below it is unnecessary for me to restate each here.

Was the Applicant dismissed?

[43] Section 386(1) of the Act relevantly provides that 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.

[44] The Full Bench in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli traversed the relevant authorities that consider what it means for an employee’s to be terminated at the initiative of the employer. 11 In short, it is not sufficient to simply demonstrate that the employee did not voluntarily leave their employment.12 While it may be that some action on the part of the employer is intended to bring the employment to an end, it is not necessary to show the employer held that intention.13 It is sufficient that the employer’s conduct, would, on any reasonable view, be likely to bring the employment relationship to an end.14 Put another way, did the employer’s conduct have the objective probable result of bringing about the end to the employee’s employment or leaving the employee with no effective or real choice but to resign?15 It is necessary to conduct an objective analysis of the employer’s conduct to determine if it was of such a nature that resignation was the probable result or that the employee had no effective or real choice but to resign.16 All the circumstances – including the conduct of both the employer and employee – must be examined.17 In other words, it must be shown 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.”18

Consideration

[45] I have had regard to the submissions and evidence given by both parties. Each witness was plainly spoken and appeared credible.

[46] It is uncontentious that the Applicant asked for leave on multiple occasions but was denied. What is clear from the frank evidence provided is that both parties had considerable pressures at the relevant time. The Applicant had serious concerns for his health and the Respondents were anxious about the looming milestone deadline which, without the Applicant’s knowledge and experience, they were worried they could not meet.

[47] I do not accept the Respondents’ submissions that the repeated requested for leave by the Applicant evinced his intention to not be bound by his employment contract. He was entitled to ask for leave and the Respondent was entitled to say no. I do not consider that the employment contract was repudiated by either party during this exchange.

[48] It seems that the Respondent was agreeable to the Applicant taking sick leave should the procedure be required during the period in question. It is curious why this option was not more fulsomely explored by either party. In any event, it seems that it was the length of time off – to be taken as annual leave – during that specific period that the Respondent was not willing to accommodate. Given the events of 1 and 2 September 2021, it is unnecessary for me to determine whether the desire for, and refusal of, the leave was reasonable.

[49] Based on the evidence before me, I am satisfied that on 1 September 2021 the Second Respondent indicated to the Applicant that he would not be accommodating the Final Leave Request and that in those circumstances, the pair were at an “impasse”. This, quite reasonably, was taken by the Applicant to mean that if he did not attend work the following week, his employment would be terminated.

[50] The Applicant maintained during that conversation that the reason for which he needed the leave had not changed and pressed his request. This was confirmed again during their discussions on 2 September 2021. I am satisfied that it was then the Second Respondent who raised mutual separation as the solution. This was restated in the email, which the Applicant then replied to indicating the termination had occurred on 1 September 2021. I am also satisfied that it was the Applicant who indicated that if his employment was to be terminated, it should be immediate.

[51] Though the Applicant had stated he wished to take annual leave the following week, he never had the opportunity to actualise his intention or change his mind. Rather, his employment was terminated by the Respondents before the Applicant had an opportunity to act. The parties were indeed in a deadlock. However, there were options available to both of them. Prior to the period of leave requested, the Applicant may have reconsidered his position and not pressed his request for leave. He may have attended work as per normal the following week. Alternatively, he may have maintained his position and been absent from the workplace the following week. Equally, in the intervening period the Second Respondent could have reconsidered his position in respect of the Applicant’s Final Leave Request. What would have happened in the week of 6 September is the subject of conjecture. The Respondent’s action was precipitous.

[52] I can understand that the Second Respondent, being a busy businessman with a looming deadline who was no doubt frustrated and surprised by the Applicant’s insistence of taking leave at a critical time, did not wish to leave the matter sit for another week so he acted. However, in doing so, he terminated the Applicant before the Applicant had the opportunity to do anything that warranted termination of his employment. Had the Applicant in fact not attended in the week of 6 September 2021 and the Respondent then relied on his absence to terminate him from his employment, the matter may be quite different.

[53] However, in the present circumstances, based on the evidence and reasons set out above, I am satisfied that the Applicant was terminated at the Respondents’ initiative and therefore was dismissed within the meaning of the Act.

[54] I order that the jurisdictional objection be dismissed.

[55] I will list the matter for further conference and attempt to conciliate the matter. If that is unsuccessful, a certificate will be issued pursuant to s.368(3).

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR737538>

 1   Wellparks Holdings Pty Ltd t/as ERGT Australia v Mr Kevin Govender [2021] FWCFB 268 [48].

 2   Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618.

 3   Saranov v KJ & J Roman No. 2 Pty Ltd [2015] FWC 3842.

 4   Purcell v Tullett Prebon (Aust) Pty Ltd [2010] NSWCA 150 [38], [40] and Byrne v Australian Airlines Ltd [1995] 185 CLR 410, 427 and Visscher v Giudice [2009] 239 CLR 361, 379-81.

 5   Stevens v Horsley Park Supermarket Pty Ltd trading as Carlo’s IGA Horsley Park [2017] FWC 4626.

 6   Ibid [43].

 7   Ibid [47].

 8   Australian Municipal Administrative, Clerical and Services Union; Ashley Hardy, Howard Jones v Shire of Moyne [2019] FWC 136.

 9   Lin v Chand and Li International Pty Ltd [2021] FWC 1514.

 10   O’Keefe v Ramsay Health Care Australia Pty Ltd [2021] FWC 4796.

 11   Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941.

 12   Ibid.

 13   Ibid; see also Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161; see also O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006); Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 14   Bruce v Fingle Glen Pty Ltd [2017] FWCFB 5279; Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154, 160-161 cited in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [31].

 15   O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (11 August 2006) [23].

 16   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200.

 17   Whirisky v DivaT Home Care [2021] FWC 650 [77].

 18   Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 and Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin Tavassoli [2017] FWCFB 3941 [28].