Note: An appeal pursuant to s.604 (C2011/393) was lodged against this decision - refer to Full Bench decision dated 16 September 2011 [[2011] FWAFB 6265] for result of appeal.

[2011] FWA 3610

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Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Ross Davidson
The Commonwealth of Australia (represented by the Department of Climate Change)



Termination of employment - alleged constructive dismissal - existence of employer course of conduct - jurisdictional objection - whether termination at the initiative of the employer.


[1] This matter arises from an application for unfair dismissal remedy under s.394 of the Fair Work Act 2009 (the Act) lodged on 30 January 2011 by Mr Ross Davidson (the applicant) in respect of the termination of his employment by the Commonwealth of Australia, represented by the Department of Climate Change and Energy Efficiency (DCCEE, the Department or the respondent), on or about 25 January 2011. 1 The applicant claimed constructive dismissal.

[2] On 9 February 2011 the respondent objected to Fair Work Australia’s jurisdiction to hear the application on the basis that the applicant’s employment had not been terminated at the initiative of the employer. Consequently, on 10 February 2011 directions were issued and the matter was listed for a jurisdiction hearing.

[3] In accordance with the directions, both parties duly filed submissions and witness statements and the matter was arbitrated in Canberra on 28 March 2011.


[4] The important facts of this matter are largely not in dispute. During the relevant time period the applicant was on leave and the majority of the pertinent facts are contained in documents created at the time and annexed to the statement of Ms Lynn Polglase, 2 a witness for the Department, and/or the statement of the applicant.3 The chronology4 prepared by the applicant also corroborated to a large extent the facts that are apparent on the face of the documents provided.

[5] The applicant commenced non-ongoing employment with the respondent on 18 March 2010. He had prior periods of service in five other Commonwealth agencies over the previous seven years. He was offered ongoing employment as an EL2 with the Department on 22 March 2010 and accepted this offer. His ongoing employment commenced on 29 March 2010. In late October 2010 the applicant began to be supervised by Ms Kerryn Vine-Camp (Assistant Secretary of the Home Insulation Compliance and Transition Branch - HIC). In early December the Branch supervised by Ms Vine-Camp was subjected to a restructure. The applicant expressed some dissatisfaction with the restructure to Ms Vine-Camp prior to commencing, on 9 December 2010, a period of pre-arranged sick leave.

[6] On 22 December 2010 an article was published in the ‘Tips and Rumours’ section of the website. The article was brought to the attention of Ms Vine-Camp who suspected, and informed a number of her colleagues, that the article may have been a “leak” from the Department.

[7] On 23 December 2010 Ms Vine-Camp sent an email to Ms Shona Moloney, an assistant secretary in the Department‘s corporate area, copied to a further three departmental employees, setting out “for assessment” her reasons for suspecting a leak and her reasons for suspecting that the applicant may have been the source of the leak.

[8] On 4 January 2011 Ms Vine-Camp sent a further email to Ms Moloney requesting an update on the “IT sweep” that was being undertaken in relation to the suspected leak, and advising that she was concerned about proceeding against the applicant as there may have been other employees with a similar understanding of the relevant matters. Ms Vine-Camp suggested that she raise the matter more generally with her EL2s at their next meeting, noting that if the IT sweep “picked up anything” it should be taken further. Ms Moloney’s reply agreed with the suggestion that the matter should not proceed based on Ms Vine-Camp’s suspicions alone.

[9] The applicant was due to return from his period of sick leave on 10 January 2011. On 7 January 2011 his doctor provided him with a further sick leave certificate for the period 7 January 2011 until 25 January 2011. Early on 10 January 2011 the applicant sent an email to Ms Vine-Camp stating he was still deemed unfit for work but had “further medical appointments over the next couple of weeks which will hopefully give clarity to my situation.” The applicant also requested an update on the “outcome of the restructure” and asked what he could “expect to be doing on his return”.

[10] By return email Ms Vine-Camp noted that the information supplied by the applicant “doesn’t sound good” and states that she “hopes everything goes okay”. Her email goes on:

[11] On 10 January 2011 Ms Vine-Camp was made aware by email of another rumour concerning the Department’s responsibilities under the Home Insulation Safety Program and associated initiatives published on the website that day.

[12] The applicant’s Blackberry was received by Ms Vine Camp later that day through the Department’s internal mail. Upon receiving the Blackberry Ms Vine-Camp had a discussion with Ms Charissa Moriarty (Agency Security Adviser). Later, by email, Ms Vine-Camp requested Ms Moriarty to restrict the applicant’s access to the building and the ‘system’. She also queried whether anything might be recovered from the Blackberry which she stated “looks like it has been cleaned”.

[13] On 12 January 2011 Ms Vine-Camp informed a Ms Lesley Butt by email 5 that she had held a meeting with the staff in the HIC Branch where she advised them about the Crikey leaks, talked about personal security and told them of the IT search conducted after the first suspected leak.

[14] On 12 January 2011, by email, the applicant provided Ms Vine-Camp with his medical certificates, noted that he had arranged for the Blackberry to be returned to her in the internal mail and advised that his next medical review was to be on 25 January 2011.

[15] On 14 January 2011 Ms Bernadette Welch (First Assistant Secretary Corporate Support Division) sent to the applicant a document titled “Notification of Investigation into Potential Breach or Breaches of the Australian Public Service (APS) Code of Conduct”. The allegations made against the applicant concerned

[16] The applicant was advised that an investigation into the allegations would be conducted by an independent external investigator, a Mr Ken Titheradge, who would be in contact with him shortly. On 17 January 2011 the applicant emailed Mr Titheradge asking him to forward as soon as possible any information he wished him (the applicant) to address Mr Titheradge replied that he had not yet received the relevant documentation, but upon receiving it he would conduct any necessary interviews and request any additional information he might need. Once he had the necessary material he would provide this to the applicant for his oral or written response.

[17] On 21 January 2011 Ms Welch again wrote to the applicant to inform him that she was proposing to suspend him from duty, with remuneration, effective close of business 25 January 2011. She noted that the suspension could occur pursuant to the Public Service Regulations, which provided that an employee could be suspended if there was a belief on reasonable grounds that the employee had breached the APS Code of Conduct and the suspension was in the public or the agency’s interest. The letter noted that the proposed suspension was not in any way a prejudgment of whether the applicant had committed a breach of the Code of Conduct. The applicant was requested to provide any comments he might have by close of business on 24 January 2011.

[18] On 24 January 2011 the applicant’s representative, a Mr Andrew Knox, wrote to Ms Welch on the applicant’s instructions, noting that an email attaching the letter had been received at that time but that the actual letter had not been delivered. Mr Knox’s correspondence requested further particulars of the allegations against the applicant and made a number of other claims about the process adopted by the Department, including that the applicant was being denied natural justice and procedural fairness.

[19] On 25 January 2011 Ms Welch replied to the letter of 24 January 2011 indicating that the investigation into the alleged breaches of the Code of Conduct was in its infancy and the documentation sought was not yet available. She allowed the applicant until 2pm on 28 January 2011 to comment on the proposal to suspend him from duty with pay, and indicated that she would make a decision on the matter after that time. She noted that the applicant would continue to be paid but would not be required to report for duty until a decision about the suspension had been made. She also noted that the applicant was an employee of the Department and that the Department reserved the right to communicate with him directly, should the circumstances warrant it, despite the applicant having given his representative instructions in the matter.

[20] On 28 January 2011 the applicant’s representative replied to Ms Welch reiterating that he acted for the applicant “in this and all employment related matters”. The letter contained the following paragraphs:

[21] The letter of 28 January 2011 also stated that Ms Welch’s letter of 27 January 2011 was “at variance with the above facts and we will rely on it, amongst other breaches, to assert your repudiation of the contract of employment. Proceedings will be issued forthwith”.

[22] By letter dated 28 January 2011 Mr Titheradge, the independent investigator, wrote to the applicant setting out particulars of the alleged breaches of the Code of Conduct and enclosing supporting documentation, including the record of his discussion with Ms Vine-Camp.

[23] On 30 January 2011 an application for unfair dismissal was lodged with Fair Work Australia by the applicant.

[24] On 3 February the applicant’s representative responded by letter to Mr Titheradge’s letter of 28 January 2011.

[25] On 3 February 2011 the Australian Government Solicitor, instructed by the Department, wrote to the applicant’s representative setting out a number of matters and informing the applicant that:

[26] The letter of 3 February 2011 from the AGS also stated that the claim of “an announcement being made to the staff of entire sections of the Department” which was in the letter of 28 January 2011 from Mr Knox (and which was reiterated in the applicant’s unfair dismissal application) was “incorrect or misrepresents what actually did occur”. Mr Knox was invited to provide evidence if he claimed that it did, in fact, occur.

[27] By further letter dated 8 February 2011 AGS responded to an email sent by Mr Knox on 3 February 2011 wherein Mr Knox invited AGS to consider his response to Mr Titheradge of 3 February 2011 and the unfair dismissal application lodged by the applicant. Having taken instructions from the Department AGS responded that:

[28] The AGS letter of 8 February 2011 advised the applicant that the Department considered him an employee and requested that he discontinue his unfair dismissal application if he wished it to continue to regard him as an employee. The letter also advised that if the application was not withdrawn the Department would object to Fair Work Australia dealing with it on the basis that the termination of the applicant’s employment was not at the initiative of the Department. It was noted that the applicant remained on ‘approved miscellaneous leave with pay’ and that he was continuing to be paid accordingly. The letter requested confirmation in writing by 12 noon on 10 February 2011 that the applicant wished to continue to be regarded as an employee of the Department.

[29] In response to an email received from Mr Knox on 9 February 2011 AGS noted in a letter of the same date that it understood from that email that the applicant was not willing to act in accordance with the proposals put in AGS’s letter of 8 February 2011, and that the Department “now accepts that from 30 January 2011 [the applicant] ceased to be an employee of the Department but takes the view that the employment relationship ended at [the applicant’s] initiative and not the initiative of the Department”. AGS indicated that it would, on the Department’s behalf, be pursuing the jurisdictional objection.

Respondent’s evidence

[30] The respondent called three witnesses:

Evidence of Ms Lynne Polglase

[31] Ms Polglase’s evidence was contained in her statement 6 filed on 3 March 2011. Under cross-examination she indicated that she was not involved in the creation of the documents annexed to her statement but performed a series of administrative actions in relation to them including collecting them for the purposes of the hearing.7

Evidence of Mr Dwayne Purdy

[32] In his statement 8 Mr Purdy gave evidence about his relationship with the applicant with whom he had worked in the Industry, Legal and Critical Incidents (ILCI) Section of the HIC Branch. He had known the applicant about 12 months. It was his evidence that he had been informed by the applicant in about late November or early December 2010 that he required an operation and that he was taking leave for that purpose and was expected to return in the New Year. According to Mr Purdy all the staff in the ILCI team were aware that the applicant was on sick leave and he would expect that staff in other areas would also be aware of the fact.

[33] In relation to the Crikey leak it was Mr Purdy’s evidence that “it was generally understood that the information published by Crikey was sensitive, confidential and not known outside the Department”. 9 He also considered that the information was probably obtained from a Departmental employee, but he did not know this for a fact. According to Mr Purdy, Ms Vine-Camp had told him on or about 23 December 2010 that she suspected the applicant of being the source of the Crikey leak. Ms Vine-Camp had wanted Mr Purdy’s opinion if there was a possibility the applicant could have been responsible for the leak given the nature of the information contained in the article. She also told Mr Purdy that she had communicated her suspicions to HR.

[34] It was also Mr Purdy’s evidence that on or about 4 January 2011 Ms Vine-Camp informed him that she did not think her suspicions were strong enough to warrant formal action being taken against the applicant. She told Mr Purdy that she did not want to ruin the applicant’s reputation and that there were other people who had access to the leaked information. She had noted that HR had agreed with her conclusion but that the IT team were conducting a search to establish who was responsible for the leak.

[35] According to Mr Purdy he was informed by Ms Vine-Camp about 10 January 2011 that the applicant was still unwell and would not be returning to work for some weeks.

[36] It was Mr Purdy’s evidence that the applicant was not named during the ‘all staff meeting’ of the HIC Branch on 12 January 2011. It was his evidence that Ms Vine-Camp called the meeting to talk about the Crikey leaks and security issues more generally. She reminded staff that it was necessary for all staff to present their security passes to the reader when entering the building and that ‘tailgating’ (the practice of passing through a security point by following closely behind someone else after they present their pass) was not allowed.

[37] It was also Mr Purdy’s evidence that at a Directors meeting of 24 January 2011 Ms Vine-Camp had identified the applicant as being the subject of disciplinary action “relating to him sending Departmental information about the debt project and the involvement of the Australian Federal Police in that project to someone outside the Department”. 10 It was also the witness’s evidence that Ms Vine-Camp had told the Directors that the matter was sensitive and should be handled with discretion. According to Mr Purdy, Ms Vine-Camp had advised at the time that the applicant was still on sick leave.

[38] Mr Purdy had no knowledge of any announcements made to “entire sections of the Department” indicating that the applicant had been suspended from duty, had his security pass revoked, illegally entered the building with the assistance of others or been escorted from the building. The first he had heard of such an allegation was when it was brought to his notice by the AGS (i.e. after the applicant had initiated unfair dismissal proceedings).

[39] When cross-examined on the content of the Directors meeting of 24 January 2011 Mr Purdy recounted the meeting as follows:

[40] Mr Purdy was cross-examined in detail about his statement that the information contained in the article published on 22 December 2010 was probably obtained as a consequence of a leak because the details were “sensitive, confidential and not known outside of the Department”. 12 Mr Purdy stated his belief that the first tranche of material was probably the result of a leak by a Departmental employee,13 but he did not believe that the applicant was the leaker.14

[41] It was Mr Purdy’s evidence that the information contained in the article published on 10 January 2011 was less sensitive and likely to have been known by a wider number of Department personnel. Mr Purdy conceded that the information in the articles was ‘similar in content’ or ‘similarly worded’ to pre-existing public information. 15 It was Mr Purdy’s evidence that the information about the Department facing ‘multi-million dollar law suits’ and financing the training costs of CSR Bradford sub-contract staff was information which had not at that time been disclosed.16

[42] When asked whether he agreed with Ms Vine-Camp’s assessment that the applicant was the likely source of the suspected leaks Mr Purdy said he did not agree because he had not seen any evidence to prove the allegation. 17 According to Mr Purdy the possible sources of the supposed leaks were limited to a group of about six people in the Department (including the applicant and himself) who possessed the requisite knowledge and access to sensitive information.18 It was Mr Purdy’s evidence that, like the applicant, his email account had been monitored to ascertain whether he had submitted anything outside the Department.19

[43] Mr Purdy was also cross-examined about Ms Vine-Camp’s reaction to the return of the applicant’s Blackberry. Mr Purdy recollected that Ms Vine-Camp was “visibly upset” when the applicant’s Blackberry arrived in an internal mail envelope on 10 January 2011 very soon after Ms Vine-Camp had sent the applicant an email 20 requesting that he return it.

[44] Mr Purdy stated that at the time he did not know that the applicant’s security card had been de-activated; his evidence was that he did not become aware of this until “some days or weeks after the fact”. 21 Ms Vine-Camp had told Mr Purdy that she did not know how the phone got into the building because the applicant’s pass had been deactivated from about 10 January 2011.

Evidence of Ms Kylie Burnett

[45] The final witness called on behalf of the respondent was Ms Kylie Burnett. The Department sought and was granted leave to call Ms Burnett at late notice, and without filing a statement of evidence, because the allegations regarding her involvement in the matter were only notified to the respondent the week before the hearing.

[46] In examination in chief the witness was asked about a meeting she had with her supervisor Mr Mark Painting (Branch Secretary Home Insulation Safety Program Branch - HISP). According to Ms Burnett, Mr Painting asked to speak to her in his office. Her recollection of the conversation was as follows:

[47] When asked during the hearing to clarify what she told her staff in a subsequent team meeting Ms Burnett stated as follows:

[48] When cross-examined Ms Burnett’s evidence was that she was advised by Mr Painting, although she could not recall exactly when, that the applicant had had his building access revoked and so she wanted to “…make sure that [her] staff were sure of their security obligations generally and also specifically in relation to providing access to someone they might know and think has access to the building and specifically Ross Davidson”. 24

[49] Ms Burnett was then shown an email 25 one of the meeting attendees, Mr Steve Farlow, had sent to the applicant on the evening of the day of Ms Burnett’s team meeting.

[50] According to Ms Burnett, Mr Farlow’s email was “very paraphrased” and failed to capture the intent behind what she said, which was to educate staff about their security obligations and not to give anyone access to the building, specifically Ross Davidson, given the current situation. 26

Applicant’s evidence

[51] The applicant gave evidence on his own behalf and called Mr Stephen Farlow, an APS 5 level DCCEE employee working in the Contract and Procurement team led by Ms Burnett. Both witnesses filed statements outlining their evidence.

[52] Ms Dowsett objected to large parts of the applicant’s witness statement on the basis that they were in the nature of submissions. In consequence, several paragraphs of the applicant’s statement were accepted as submissions rather than evidence. 27 A number of documents were annexed to the applicant’s statement and a collection of media articles (Book of Media) was also tendered. The applicant had also prepared a Chronology28 of the matter in response to which comments29 were provided by the respondent.

[53] Ms Dowsett objected to the receipt of the applicant’s Book of Media into evidence on the ground that its contents went largely to what was in the public arena at the time of the Crikey leaks and was not relevant to the issue for determination at the jurisdiction hearing. It was agreed that only those items which were marked for identification during cross-examination of the applicant’s witnesses would be accepted, 30 and that they would be given the appropriate weight given their relevance to the issue for determination, that is, whether there had been termination at the initiative of the employer.

Evidence of the Applicant

[54] The applicant was asked a number of questions about the contents of Ms Welch’s letters to him of 14 and 21 January 2011 31 which set out the Department’s allegations which were to be the subject of Mr Titheradge’s Code of Conduct investigation.

[55] The three allegations levelled against the applicant in those letters were as follows:

[56] To the extent that the applicant’s evidence was directed toward the substance of the Code of Conduct allegations it was largely irrelevant to the matter of whether there had been a termination at the initiative of the employer. 32

[57] The applicant was asked about the restructure that occurred about 8 December 2010. It was his evidence that he had approached Ms Vine-Camp after she announced the restructure seeking clarification about his duties, because there was some overlap between his existing role and the new position Ms Vine-Camp had created (Director Stakeholder & Strategy) to which Mr Purdy was appointed. 33

[58] When cross-examined the applicant agreed with the proposition that, notwithstanding the reorganisation carried out by Ms Vine-Camp, he still had ‘substantive duties to perform’ upon his return to work. It was his evidence, however, that it was not clear what his role would be and that “there was a discussion to be had” because, in his opinion, the restructure resulted in considerable overlap and did not ensure the best use of his skills. 34 The ‘overlap’ arose because Mr Purdy was to assume some of the handling of legal and high profile media issues, which were existing functions of the applicant.35

[59] The applicant gave evidence about the content of text messages he had received on his phone on 24 January 2011. Four messages were received from Ms Genevieve Boschman, an employee working in the HISP Division, and one from Mr Farlow, who also sent an email to the applicant that day. The text of those messages was as follows:

[60] It was noted that the applicant had saved the received messages on his Blackberry but had deleted, or failed to save, the messages he had sent which either elicited or responded to those messages. In response to a question in cross-examination concerning what message he had sent to Ms Boschman for her to respond that it “sounds like things are turning nasty”, the applicant said he could not recall what he had written. 36 He also stated that he had asked Ms Boschman to delete the text messages between them so that she didn’t get drawn into the situation.37

[61] It was the applicant’s evidence that he had not entered any building occupied by the respondent since he departed on sick leave on 8 December 2010. 38 He stated that he had arranged for his Blackberry to be returned via the internal mail system rather than advising Ms Vine-Camp of a suitable time and place.39 The applicant was asked why, in his email to Ms Vine-Camp of 10 January 2011, he did not give her an indication of when she could expect him to return to work. The applicant agreed that he had not given a time for his return but recalled informing the payroll section when he provided his medical certificates.40

[62] The applicant agreed that, as at 10 January 2011, he was on personal leave and not required to attend for work. 41 He stated, however, that there was no reason for him not to have IT and building access while he was on leave.42 He also conceded that someone on sick leave would not generally attend at the workplace but he could see no reason for his building pass to be revoked. Additionally it was the applicant’s evidence that he routinely accessed his emails remotely whilst on any form of leave. He noted that EL2 level employees tend to get a lot of emails even when they are off-duty.43

[63] It was the applicant’s evidence that, given the revocation of his IT and building access, he had effectively been suspended by the time he received Ms Welch’s letter of 21 January 2011 proposing to suspend him with effect from 25 January 2011. 44 While the applicant accepted that assurances were made in Ms Welch’s letter dated 25 January 2011 to the effect that no decision in relation to suspension had at that stage been made,45 he noted the events of 10 and 24 January 2011, the dates on which he stated that he had become aware that his IT and building access had been revoked.46 It was put to the applicant that his instructions to Mr Knox to send the letter of 27 January 2011 were given on the basis of Mr Farlow’s email of 24 January 2011,47 and the text messages he had received from Ms Boschman and Mr Farlow on 24 January 2011.48 The applicant denied this and said that the letter was also based on what he had been told about the suspension process and his phone calls to IT and security, as a result of which he discovered his IT and building access had been revoked.49

[64] It was also put to the applicant that his belief was based on information provided to him by junior employees which had been contradicted by what he had been told by senior management. The applicant accepted that his belief was partly based on what he had been told by Ms Boschman and Mr Farlow, 50 but he reiterated that his belief was based on other sources of information as well, including the revocation of his IT and building access and the fact that staff in his Branch had been briefed about his situation.

[65] The applicant was asked about correspondence from the respondent’s solicitors dated 3 and 8 February 2011 through which the Department had conveyed its position that it still regarded him as an employee, and invited him to discontinue his unfair dismissal application and resume the employment relationship. The applicant responded that returning to the employment relationship “wasn’t an option”. 51 He said he felt he had been “lied to” by the Department, and that it was saying one thing but doing another.52 He claimed that he had already been suspended and it was simply not open for him to return:

[66] According to the applicant a simple phone call could have clarified the suspicions which later formed the basis of the respondent’s breach of Code of Conduct allegations. It was the applicant’s opinion that the Department had “jumped the gun” by initiating disciplinary proceedings. 54

[67] The applicant agreed that he had retained the salary payment that was deposited into his account on Thursday, 20 January 2011 despite being aware from 10 January 2011 that he no longer had remote IT access. He responded that he did not return this pay as he had no reason to query it. 55

Evidence of Mr Stephen Farlow

[68] Mr Farlow had been a non-ongoing APS 5 employee in the HISP Division of the Department since August 2010. It was his evidence that he had known the applicant prior to joining the Department. According to his evidence on 10 January 2010 the applicant had asked him to return his Blackberry to Ms Vine-Camp through the Departmental internal mail, and he had done so. Mr Farlow stated that he had tried to leave the envelope containing the Blackberry with a security guard stationed at the bottom of the 5 Farrell Place building but the guard refused. His evidence was that he had then taken the envelope back to his own building located at 1 Farrell Place and deposited it in the internal mail.

[69] Mr Farlow also gave evidence about a meeting of six staff of the Contracts and Procurement Team he had attended on 24 January 2011 at which his supervisor, Ms Burnett, had made some statements about the applicant. It was his recollection of that meeting that Ms Burnett had told staff that:

Respondent’s submissions

[70] The respondent filed written submissions and made short oral submissions at the hearing.

[71] The respondent’s objection to the exercise of jurisdiction by Fair Work Australia was on the ground that the applicant's employment was not terminated at the Department’s initiative and that the applicant was not forced to resign due to a course of conduct engaged in by the Department which left him with no reasonable choice but to leave his employment. The respondent submitted that the applicant had freely resigned from his employment of his own volition and, as such, the Tribunal has no jurisdiction in respect of his application. It was put that the question for determination was whether the applicant was forced to resign due to a work environment which was so repugnant or oppressive that it was not reasonable to expect him to have to endure it.

[72] It was submitted for the Department that Australian authorities which have directly applied s.386 of the Act and its predecessors ought to be preferred over the English cases cited in the applicant’s submissions as authorities for the common law concept of ‘constructive dismissal’ underpinning s.386(1)(b). 57 It was also argued that if there was anything to extract from the English Court of Appeal decision in Woods v WM Car Services58 it was that each case must turn on its peculiar facts. The facts of this matter, it was submitted, lead to the conclusion that the applicant was not forced from his employment.

[73] The respondent submitted, applying the principles enunciated in P. O’Meara v Stanley Works Pty Ltd59 that an objective analysis of the employer’s conduct demonstrated the absence of a course of conduct on the part of the Department which was either intended to bring the employment relationship to an end, or which had as its probable result the end of the employment relationship.

[74] It was contended for the respondent that the revocation of the applicant’s IT and building access took place while the applicant was on a period of personal leave and therefore not required to undertake any duties. 60 It was also put that it was not unreasonable or ‘unusual’ for the Department to take such action while it was investigating a serious case of leaked sensitive information.61 In addition, the employer’s decision to commence a Code of Conduct process was appropriate in light of the legitimate concerns it had with conduct of the applicant unrelated to the Crikey leaks.

[75] It was noted that the Department, through its legal advisors, had twice invited the applicant to resume the employment relationship and informed the applicant that the Department still regarded him as an employee. The respondent’s submission was that the applicant had been invited to comment on the Code of Conduct allegations put to him and was given ample opportunity to do so.

[76] It was also put on the Department’s behalf that when, on 27 January 2011, the applicant purported to accept the repudiation of his employment contract he had been acting under a misunderstanding as to the status of the employment contract. Additionally, by letter dated 25 January 2011 the applicant was explicitly assured by the First Assistant Secretary of his Division that he had not been suspended. It was put that the fairly short period of time the applicant was initially given to respond to the proposed suspension was appropriate as he had been due to return to work on 27 January 2010. Further, it was submitted that no “broad announcement” to staff had been ever been made concerning the applicant.

[77] The respondent noted that at paragraphs [42]-[64] of the applicant’s written submissions he had referred to events that he conceded he was unaware of during his employment. It was put for the respondent that the applicant could not claim to have been forced to resign by circumstances of which he was unaware until after his employment had ended.

[78] In summary, it was the Department’s submission that it did not engage in a course of intimidatory conduct or systematically act so as to bring about the end of the applicant’s employment. Although an unwelcome turn of events for the applicant, the Department’s decision to pursue the Code of Conduct investigation did not render his work environment repugnant or oppressive.

Applicant’s submissions

[79] Written submissions were filed on the applicant’s behalf. It was the applicant’s submission that he had been ‘constructively dismissed’ within the meaning of s.386(1)(b) because the Department had engaged in a course of conduct which effectively left him with ‘no choice but to resign’ given the damage that had been done to his reputation, and the assumption of his duties by Mr Purdy following the reorganisation of his section, which effectively made him redundant.

[80] Relying on Moore J’s comments in Rheinberger v Huxley Marketing Pty Ltd 62 it was submitted by the applicant that it was irrelevant whether or not the Department intended by its actions to force him to resign, because it was sufficient that the cessation of the employment relationship was nonetheless the probable result of the employer’s conduct. In this regard, the applicant relied on paragraph 26 of Mr Purdy’s statement63 in which Mr Purdy recalled Ms Vine-Camp telling him on 4 January 2011 that she was very concerned not to ruin the applicant’s reputation. This showed, according to the applicant, that the respondent was well aware that the course of conduct it was about to embark on would be likely to ruin the applicant’s reputation.

[81] It was the applicant’s submission that the matter effectively comprised two distinct ‘phases’. Phase one consisted of the events and allegations which the applicant was aware of as at 30 January 2011 when he filed his application for an unfair dismissal remedy. Phase two related to the events and allegations which the applicant only became aware of on 3 March 2011 upon receiving the respondent’s submissions and statements.

[82] According to the applicant it became apparent in the second phase that the Department’s conduct had resulted in the destruction of the applicant’s reputation and employment prospects. But the ‘critical action’ from the applicant’s point of view happened before then, when officers of the Department briefed Branch staff on 24 January 2011 and thereby made it impossible, in the applicant’s submission, for him to resume his duties “with any dignity or credibility”. In addition to the staff briefing of 24 January 2011, the applicant’s submissions also noted the revocation of his IT and building access which “halted and barred him completely from his physical and functional office”. It was put for the applicant that locking him out of the Department’s premises and systems meant he was already impliedly suspended at the time when the Department professed to be ‘proposing’ to suspend him.

[83] It was the applicant’s submission that, having committed itself to exposing the applicant as the source of the Crikey leaks, the Department had adopted a course of conduct (including the initiation of the Titheradge investigation and the proposal to suspend him) as a stratagem or ‘sham’ to mislead and deceive the applicant into incriminating himself. It was further submitted that the allegations against him were misconceived and that he was denied procedural fairness by the haste with which the disciplinary process was carried out.

[84] It was also the position of the applicant that the creation by Ms Vine-Camp of the new position of ‘Director Stakeholders and Strategy’, and her appointment of Mr Purdy to that role, had in any event effectively made the applicant redundant.

[85] Finally it was argued that given the respondent’s failure to call important witnesses, including Ms Vine-Camp, Ms Welch and Ms Moriarty, Fair Work Australia should, in accordance with the rule in Jones v Dunkel64 assume that the evidence of those persons would not have assisted the respondent’s case.

The Legislation

[86] The fate of the jurisdictional objection raised by the respondent in this matter turns on whether there was a termination ‘at the initiative of the employer’. The relevant provision of the Act, section 386, provides as follows:


[87] In this matter the Department did not advise the applicant that his employment was terminated. The evidence is that the Department, at least until 9 February 2011, was prepared to accept that the applicant was still an employee despite the fact he had lodged, on 30 January 2011, an application pursuant to s.394 of the Act claiming that he had been constructively dismissed under s.386 (1) of the Act. The applicant claimed that on the basis of what he knew at 30 January 2011 he was “left with no choice but to resign and accept the employer’s repudiation of his contract of employment”. 65 In order to amount to a termination at the initiative of the employer the applicant must have been forced to resign by a course of conduct engaged in by the Department.

[88] The evidence adduced and the submissions put on the applicant’s behalf were directed at a finding that the Department had engaged in a course of conduct which amounted to a repudiation of his contract of employment and which forced his resignation. In this respect the applicant relied on evidence of the following matters:

[89] The following passage from the Full Bench decision in P. O’Meara v Stanley Works Pty Ltd provides a useful summary of the prominent authorities on constructive dismissal under the legislation extant at that time:

[90] The above passage mentions an earlier Full Bench decision of ABB Engineering. In that case the Full Bench also stressed the importance of examining the employer’s conduct in order to ascertain whether it was such as to support a conclusion that the employee in question had been constructively dismissed:

[91] A more recent decision of a Full Bench in Australian Hearing v L Peary 68 dealt with the matter of whether there was a requirement to show an intention on the part of the employer to bring about the resignation of the employee:

[92] Turning now to the application of the relevant provisions of the Act to the matter at hand, s.386(1)(b) of the Act is in much the same terms as s.624(4) of the previous legislation. I have approached the determination of this matter on the basis that the applicant need not show that the employer intended by its conduct to bring the employment contract to an end and compel the applicant to resign his employment. It will be sufficient if the employer engaged in a course of conduct that forced the applicant to resign. Thus, the conduct of the employer, complained of by the applicant, must be scrutinised to determine whether it was such that he was forced to resign.

[93] So far as the restructure of the applicant’s work area is concerned I do not accept that the evidence in relation to this matter could support a finding that there was a termination of the applicant’s employment at the initiative of the employer. His duties may well have changed and he may have considered that major areas that had previously been his responsibility had been allocated to Mr Purdy. Clearly he was not happy about the restructure. His evidence when cross-examined was that he was unclear what his role was to be under the new structure and that Ms Vine-Camp had not addressed his queries concerning his new duties. 69 But even accepting the Applicant’s evidence that major areas of his responsibilities had been reallocated to Mr Purdy, as the applicant commenced a period of sick leave on the day after the restructure was announced it is unsurprising that he had not been made fully aware of his new duties. Ms Vine-Camp had advised him to “concentrate on getting well and not working” when he raised the matter in an email upon extending his sick leave.70

[94] Similarly, I do not accept that the request by Ms Vine-Camp that the applicant return his Blackberry is an indication that his employment contract had been repudiated by DCCEE. When the applicant extended his sick leave he gave Ms Vine-Camp no indication of an imminent return. He did not inform her that his new medical certificate was for a period ending on 25 January 2011 but merely stated that he would be having further tests over the next couple of weeks and would have a better idea of his likely return at that time. I consider that Ms Vine-Camp, in those circumstances, was justified in requesting the return of his Blackberry to enable it to be used by the employee taking over his responsibilities in the interim. I note that the applicant at no time queried her request but immediately returned the phone. The applicant’s resignation was not a probable consequence of the request that he return his Blackberry.

[95] On the evidence it is apparent that Ms Vine-Camp, at 4:20 pm on 10 January 2011, requested that the applicant’s security pass be de-activated and that this followed the return of the applicant’s Blackberry through the internal mail system. 71 Shortly before that time Ms Vine-Camp had become aware of what she suspected was a second leak of Departmental information. This may have contributed to her decision to request that the applicant’s access to the building be removed. As the applicant was on sick leave at the time he had no need to access the workplace. The revocation of his access to DCCEE’s premises was therefore of less significance than would have been the case had he not been on a period of leave. The fact that Mr Davidson was unaware that his access had been removed until 24 January 2011, when security staff advised him that his pass had been deactivated, supports this assessment of the significance building access.72

[96] Similarly, the applicant’s access to the Department’s IT system was barred on or about 10 January 2010. 73 He stated that he became aware of this fact on 12 January 2011.74 I do not consider that this fact was in any way a repudiation of the contract of employment. The applicant was absent on sick leave and had been advised to concentrate on getting well rather than work. In light of the Code of Conduct investigation which formally commenced on 14 January 2011 I consider that the Department was entitled to restrict the applicant’s access to the IT system. At least one of the allegations made against the applicant concerned the possible misuse of that system. In light of his absence on leave and the nature of the investigation, the removal of IT access was not inconsistent with his continued status as an employee of the Department, nor did it have as its probable consequence the applicant’s resignation from his employment.

[97] The Code of Conduct investigation was commenced on 14 January 2011 on the basis of matters brought to the attention of the Department when an ‘IT sweep’ was conducted in an effort to identify whether the leaks had emanated from within the Department. The allegations made against the applicant were not connected with the suspected leaks to The Department was entitled to institute a Code of Conduct investigation and clearly the commencement of the investigation was not inconsistent with the applicant’s status as an employee. Such investigations may only be instituted against employees. The investigation, had it been completed, may have found that there was no substance to the allegations made against the applicant. Those allegations were to be investigated by an independent investigator. It cannot be said that the probable consequence of the commencement of an investigation into whether an employee has breached a code of conduct is that employee’s resignation.

[98] Nor do I consider the proposal to suspend the applicant from duty while the investigation was undertaken amounted to a repudiation of his contract of employment or some compulsion upon him to resign. In my experience it is not unusual for public servants who are the subject of Code of Conduct allegations to be suspended from duty with pay for the period of any investigation. The applicant was given an opportunity to put forward reasons why such a suspension should not occur. The applicant did not take the opportunity to mount any cogent argument against the suspension, but merely claimed to have been effectively suspended (given the denial of access to the workplace and the IT system) and that the Department had repudiated his contract of employment by, among other matters, simply proposing the suspension.

[99] The applicant claimed that the Department had repudiated his contract of employment by an “announcement” made to “entire sections” of staff concerning the investigation which made it impossible for him to return to the workplace. The applicant’s claim in this respect seemed to be based entirely on email and SMS updates he received from Mr Farlow and Ms Boschman on 24 January 2011. 75 The relevant reports are at paragraphs [49] (email) and [59] (SMS) above. The reports from Ms Boschman merely noted that her team had been told that the applicant’s security pass had been suspended and that staff should not allow people without passes, including the applicant, into the building. In my view nothing transpired at the meeting that meant that the applicant was unable to return to the workplace.

[100] Two accounts were provided about the Contract and Procurement Team meeting of 24 January 2011 that was reported to the applicant by Mr Farlow. Mr Farlow initially reported to the applicant that his team was told by Kylie Burnett not to allow the applicant access to the building or to talk to him about work matters. He also reported that they were told not to “talk or gossip about it”. 76 By a later email, which ended with the words “hope this helps”, Mr Farlow noted that the staff at the meeting had been told that the applicant had been suspended and had been escorted from the building by a guard, having had someone let him in. He reiterated that the staff had been told not to discuss the matter outside the meeting .

[101] Ms Burnett’s evidence was that she had been briefed by her Branch Head about the investigation concerning the applicant. She admitted that she had said at the meeting that the applicant had been escorted from the building by a security guard but that she had not been told this by anyone, it had been an assumption on her part based on a previous experience. Ms Burnett’s evidence was that she had instructed the staff about maintaining security of the building and had emphasised that the applicant was only being investigated, there had been no final decision made, and that it would be unfair of them to speculate or gossip about the applicant. She instructed the staff not to discuss the matter outside the room.

[102] While Ms Burnett’s claim that the applicant had been escorted from the building was both wrong and unfortunate, it was made to a very small group of people (5) and those people had been directed not to talk or gossip about the matter outside the room. There was no evidence that any other person had repeated the claim made by Ms Burnett, other than Mr Farlow. Had the applicant brought the statement to the Department’s attention the position was capable of simple rectification by a clarifying statement. The applicant chose not to take this course.

[103] That staff were instructed not to discuss work with the applicant during the investigation and not to permit access to the building by the applicant, or any other person without a valid security pass, is not, in my view, sufficient reason for the applicant to consider that it would be untenable for him to return to the workplace. Nor am I satisfied that the announcements made to other members of the applicant’s Division on 24 January 2011 (taking into account the erroneous information supplied by Ms Burnett) could amount to a termination of the applicant’s employment at the employer’s initiative.

[104] I am satisfied that all the matters set out above, taken together, do not amount to a course of conduct taken by the Department which forced the applicant’s resignation. It was open to the applicant to argue against the proposed suspension, this was invited by the Department which allowed additional time for him to do so. It was also open to the applicant to respond to the investigation that had been commenced in order to account for those matters which were the subject of that investigation. In all the circumstances of this case, including the Department’s reassurance to the applicant that any concerns he had about the proposed suspension and the investigation would be dealt with before the investigation proceeded, and the repeated requests that he confirm his continued employment, I am unable to find that the applicant was forced to resign.

[105] It was proposed by the applicant’s representative that I should draw adverse conclusions concerning the respondent’s failure to call as witnesses certain DCCEE employees who were involved in decisions made about the Code of Conduct investigation and the removal of the applicant’s security pass and IT access. The majority of pertinent facts of the matter were set out in the documentation tendered in evidence and the authenticity of that documentation was not in dispute. In the circumstances I do not draw any adverse conclusions from the failure of the Department to call additional witness evidence.


[106] I find that there was no termination of the applicant’s employment at the initiative of his employer, the Department.

[107] The application for relief pursuant to s.394 of the Act is dismissed.



Mr Andrew Knox, Cognisage Australia Industrial Relations, for the Applicant.

Ms Cathy Dowsett, of counsel, with her Ms Virginia Masters, Australian Government Solicitor, for the Respondent.

Hearing details:


March 28.

 1   The Form 2 - Application for Unfair Dismissal Remedy asserts that the Department repudiated the employment contract by Ms Bernadette Welch’s letter dated 25 January 2011, which repudiation was accepted by the applicant on 28 January 2011.

 2   Exhibit C1.

 3   Exhibit D1.

 4   Exhibit D2.

 5   Exhibit C1 Annexure LMP 9.

 6   Exhibit C1.

 7   PN158.

 8   Exhibit C2

 9   Exhibit C2 paragraph 21.

 10   Exhibit C2 Paragraphs 29-31.

 11   PN614-PN616.

 12   Exhibit C2 Paragraphs 21-22.

 13   Exhibit C2 Paragraph 22.

 14   PN388.

 15   See, eg, PN349, PN351, PN353, and PN458.

 16   See PN410 and PN471-PN473.

 17   PN388.

 18   PN390.

 19   PN393.

 20   Exhibit C1 Annexure LMP 10.

 21   PN555.

 22   PN697.

 23   PN706-PN717.

 24   PN724.

 25   Exhibit D1 Annexure RD11A.

 26   PN742-PN743.

 27   See PN893-PN896 where it was agreed that all of the respondent’s objections were sustained other than with regard to paragraph 38 of the applicant’s statement.

 28   Exhibit D2.

 29   Exhibit C3.

 30   See PN912-PN917 and PN946.

 31   Exhibit C1 Annexures LMP12 and LMP13.

 32   See PN64 where this particular aspect of the matter is made clear to the parties.

 33   PN1006-1008.

 34   PN1250.

 35   PN1010.

 36   PN1077

 37   PN1081.

 38   Exhibit D1 Paragraph 19.

 39   PN1122-1125.

 40   PN1119.

 41   PN1098 and PN1100.

 42   PN1102

 43   PN1179. See also PN1272.

 44   PN1188-PN1190.

 45   PN1185-PN1186.

 46   See Exhibit D1 paragraphs 29 and 39 (NB: paragraph 39 was omitted from evidence but accepted as a submission).

 47   Exhibit D1 Annexure RD11A.

 48   Exhibit D1 Annexure RD12

 49   PN1190-PN1192.

 50   PN1219.

 51   PN1237.

 52   See, eg, PN1190 and PN1222. See also Exhibit D1 paragraph 23.

 53   PN1238.

 54   PN1241.

 55   PN1285-PN1287.

 56   Paragraphs 13-14 Exhibit D7. See also PN1332.

 57   PN1364.

 58   Woods v W.M. Car Services (Peterborough) Ltd [1982] ICR 693.

 59   P. O’Meara v Stanley Works Pty Ltd (2006) PR973462 at [23] (Giudice J, Watson VP, Cribb C).

 60   PN1365.

 61   Paragraphs 44-45 and 49 of the Respondent’s Submissions.

 62   Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160-161 (Moore J).

 63   Exhibit D2.

 64   (1959) 101 CLR 298.

 65   Paragraph 41 of the Applicant’s written submissions.

 66   P. O’Meara v Stanley Works Pty Ltd (2006) PR973462 at [23] (Giudice J, Watson VP, Cribb C).

 67   ABB Engineering Construction Pty Ltd v Doumit (1996) Print N6999 (Munro J, Duncan DP, Merriman C).

 68   Australian Hearing v L Peary [2009] AIRCFB 680, 28 July 2009 (Giudice J, Kaufman SDP, Larkin C).

 69   PN1248 and following.

 70   PN1255 and Exhibit C1 Annexure LMP 6.

 71   Exhibit C1 Annexure LMP 8.

 72   See Exhibit D1 Paragraph 29.

 73   Exhibit C1 Annexure LMP 8.

 74   Exhibit D1 Paragraph 28.

 75   See Exhibit D1 Annexures RD11A and RD12.

 76   Exhibit D1 Annexure RD12.

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