[2011] FWA 8903

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Fair Work Act 2009
s.394—Unfair dismissal

Bruce Turton
FMC Australasia Pty Ltd



Unfair dismissal application - preliminary point - whether dismissal within the meaning of the Act - whether dismissal at the employer’s initiative - whether applicant resigned and if so, whether forced by employer’s conduct - whether application has no reasonable prospects of success - dismissal found - considerations going to whether dismissal unfair to be taken into account in the substantive hearing - matter to be listed for conciliation.


[1] This matter arises in the context of an application by Mr Bruce Turton (the applicant or Mr Turton) pursuant to s.394 of the Fair Work Act 2009 (the Act). The respondent employer is FMC Australasia Pty Ltd (FMC or the respondent).

[2] FMC has sought that the unfair dismissal application itself be dismissed on the basis of a preliminary point; namely, that it did not dismiss the applicant within the meaning of the Act. On that basis, it contends that the unfair dismissal application should be considered to be beyond the jurisdiction of Fair Work Australia and dismissed pursuant to s.587 of the Act given that it would be frivolous or vexatious, or in the alternative, having no reasonable prospects of success. The respondent employer relied upon the decision of the Federal Court in Australian Postal Corporation v Gorman [2011] FCA 975 (Gorman) to support the notion that these circumstances could be considered and dealt with pursuant to s.587.

[3] Section 587 of the Act provides as follows:

[4] It is common ground that during the course of a meeting conducted on 6 July 2011, the respondent informed the applicant that their employment relationship could not continue and that the relationship had effectively concluded by the end of the meeting.

[5] Mr Miller, who appeared for the respondent, contended that although the employer intended the employment relationship to conclude, what in fact occurred was that the parties agreed to a mutual termination where the applicant resigned as part of an agreed arrangement. This, it was contended, meant there was no dismissal and the resignation was an act of free choice. In that light, the applicant should not be given the opportunity to change his mind and have the alleged unfair dismissal matter determined. The respondent referred to Ozaras v Toll Pty Ltd [2008] AIRC 333 1 (Ozaras) as support for the proposition that a relevant dismissal should not be found in equivalent circumstances.

[6] The applicant, who was represented with permission by Mr Telfer (of counsel), contended that he was dismissed by the respondent employer and the alleged resignation was in fact the direct consequence of the employer’s decision to conclude the relationship. That is, the applicant had the choice to resign or be sacked. This, it was said, was a constructive dismissal within the meaning of the authorities and a dismissal within the meaning of the Act.


[7] I heard the evidence of Mr Pegg, 2 the respondent employer’s Managing Director, and Mr Turton3. I found both to be witnesses of truth and the tensions between their evidence were generally the result of marginally different, but genuine, recollections.

[8] In fact, there are only marginal differences between the versions given by each party and I have resolved those conflicts based upon my assessment of each witness and the consistency of that evidence.

[9] I note that a witness statement from Mr Walsh, the respondent’s Finance Manager, was also provided however he was unable to attend the hearing and FMC did not press for the admission of that evidence.


[10] Mr Turton was at the time of these events the Business Development Manager (SA, WA and NT) for the respondent employer. There had been certain performance and customer relationship issues discussed between the parties and a performance management process was being undertaken during most of 2011.

[11] On 6 July 2011, the applicant was in Brisbane to attend a national sales meeting that was due to be conducted over three days. Immediately prior to the scheduled time for the meeting to commence, Mr Turton was approached in the meeting room where the sales staff were assembled and requested by his immediate supervisor to have a private discussion with Mr Pegg.

[12] When Mr Turton attended Mr Pegg’s office, he found Mr Walsh was also there.

[13] Mr Pegg provided the applicant with a copy of a letter from a major customer of FMC which made a number of negative comments about Mr Turton and amongst other matters, indicated that he would not be welcome to attend at the customer’s premises. Without detailing the alleged basis of those concerns in this decision, it is appropriate to note that there was no suggestion of impropriety by Mr Turton.

[14] Mr Turton then made a number of comments about the basis of the customer’s alleged complaints and observed that the writer of the letter was a difficult person who had had strained relationships with others at FMC. This and related issues were then also discussed between the applicant and Mr Pegg.

[15] Mr Turton then said “Where are you going with this” and Mr Pegg said words to the effect of “We can no longer have you as part of FMC”.

[16] Mr Turton, not surprisingly, become concerned that he was being dismissed and sought details of what FMC was offering. Mr Pegg advised that he would be paid one months pay in lieu of notice and support from an outplacement service provider. Mr Turton was then handed a copy of that service provider’s brochure.

[17] Mr Turton indicated that they should be talking about a redundancy package of six weeks per year of service and an additional six weeks pay. Mr Pegg replied in effect that this was not a redundancy but rather a dismissal or alternatively, a resignation; that they could both save face; and the applicant should resign. Mr Pegg offered to give Mr Turton an extra months pay and the alternative of $2,000 in lieu of the outplacement services.

[18] The applicant indicated that this was “OK” and subsequently clarified that he wanted the outplacement services.

[19] It is also likely that the men discussed the applicant’s motor vehicle and other non-cash benefits, which were part of the salary package, as part of these exchanges and that their continuing provision was agreed.

[20] Mr Pegg indicated that he would have Mr Walsh write up a letter and they then discussed and agreed that Mr Turton would not (continue to) attend the sales meeting and would make arrangements to travel home to Adelaide that day. Mr Pegg directed the applicant to arrange his travel with another employee and that he was to leave his laptop computer with the national office (after removing any personal material).

[21] When attending upon the other employee, Mr Turton became aware that potential flights for him to travel back to Adelaide had already been sourced and that his laptop computer had already been removed from the meeting room where he had left it.

[22] After checking out of his Brisbane hotel, the applicant attended back at head office and was in due course given a letter by Mr Walsh to countersign, which he did. That letter read as follows:


[23] Fair Work Australia will only have jurisdiction to deal with the unfair dismissal application if Mr Turton was dismissed within the meaning of the Act. This is evident from s.385 of the Act which provides:

[24] Section 386 of the Act provides as follows:

[25] Only ss.386(1) is relevant to this application.

[26] Although applied under the previous Act, the following approach of the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd 4 in my view remains generally apposite:

[27] An objective consideration of the respondent’s conduct is required. If the applicant had resigned, the question would be whether the employer’s course of conduct was such that resignation was forced as the probable result or that the applicant had no effective or real choice but to resign.

[28] In relation to any form of alleged dismissal in a case such as this, it is also important to look beyond the stated intentions of the parties and to objectively consider the effect of the parties’ action in the context in which they occurred. 6

[29] There is little doubt that Mr Turton ultimately negotiated and agreed the terms upon which he was to leave the business. However, his only choice was in reality to resign (as part of a hopefully agreed package) or be dismissed. This choice was effectively acknowledged by Mr Pegg in his evidence. 7 The conclusion of the relationship was announced by Mr Pegg when he advised words to the effect of “We can no longer have you as part of FMC”. Thereafter, the parties discussed and agreed how that would be handled.

[30] This case is squarely on foot with that discussed in ABB Engineering and clearly distinguishable from that faced by the Commission in Ozaras. In Ozaras, the applicant had a choice to allow the disciplinary process to run its course, however he offered and provided his resignation on certain conditions. In this case, Mr Turton’s choice was, as put by Mr Telfer, resign or be sacked, having already been informed by the employer that the employment relationship was ending.

[31] The cessation of the employment relationship was objectively the inevitable result of the employer's decision to end the applicant’s employment and to advise him of that fact.

[32] The fact that it was agreed to handle the dismissal in the form of a resignation and to provide additional benefits in that regard are all relevant to the assessment as to whether the dismissal was unfair. 8 However, in this case these factors do not turn what was a dismissal at the employer’s initiative into a different legal character.

[33] Given that this matter has been argued pursuant to s.587, I have considered whether the subsequent agreed resignation should in its own right be taken to mean the substantive application has no reasonable prospects of success. This was raised indirectly by the respondent as part of its reliance upon the Gorman decision. In Gorman, Besanko J said:

[34] However, in this case there is no suggestion that the agreement between the parties represented any form of release from proceedings or legal rights and I have already found that it did not change the legal character of the dismissal for present purposes. There may also be other considerations raised by s.387 of the Act that could mean the dismissal was unfair, despite the apparent circumstances and the manner in which it was ultimately handled.


[35] I have found that Mr Turton was dismissed within the meaning of the Act. There is jurisdiction to hear and determine the unfair dismissal application. There is also at present, no basis to dismiss that application pursuant to s.587 of the Act.

[36] I note that conciliation of this matter has not yet taken place. Without making any more detailed assessment of the respective merits, as outlined earlier, the facts discussed in this application would be relevant to the consideration of whether this dismissal was unfair. There was also apparently a relevant recent history of performance management and this suggests that the respondent’s defence of the unfair dismissal application may have substance.

[37] Of course, I have not heard from the applicant as to the substantive merit of the application. In any event, it would be prudent for both parties to consider whether this application can be resolved without the need for further litigation and expense.

[38] The matter will be assigned for conciliation at the earliest opportunity.



J Telfer of counsel (with permission) for Mr Turton.

D Miller of the Australian Industry Group for FMC Australasia Pty Ltd.

Hearing details:

December 16

 1   Ozaras v Toll Pty Ltd [2008] AIRC 333, 23 April 2008 per Redmond C.

 2   Exhibits R1 and R2.

 3   Exhibit A1.

 4   PR973462, 11 August 2006 per Giudice J, Watson VP and Cribb C. This appeal was determined under the provisions of the Workplace Relations Act 1996 pursuant to the provisions of the Act as in force prior to the coming into operation of the Workplace Relations Amendment (Work Choices) Act 2005. As a result, the primary jurisdictional question was whether the applicant had been dismissed by the employer which was considered having regard to the formulation in the Termination of Employment Convention which in turn referred to the concept of termination at the initiative of the employer.

 5   PR973462 (footnotes omitted).

 6   See the discussion of related concepts in Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670, 9 April 2010 per Lawler VP, Richards SDP and Larkin C.

 7   Transcript PN66, PN70 to PN75 as examples.

 8   The considerations established by s.387 of the Act would include the nature of these matters.

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