FWAFB 4038
FAIR WORK AUSTRALIA
Fair Work Act 2009
s.604 - Appeal of decisions
SENIOR DEPUTY PRESIDENT HARRISON
SYDNEY, 30 JUNE 2011
Appeal against decision  FWA 7845] of Senior Deputy President Hamberger at Sydney on 24 November 2010 in matter number U2010/9231. No termination at the initiative of the employer; the employee resigned from employment.
 At the conclusion of the hearing of this appeal we said that we would not grant permission to appeal. We were not persuaded it was in the public interest to do so. These are our reasons for that decision.
 Ms Elgammal has appealed against a decision of Senior Deputy President Hamberger dismissing an application she had made pursuant to s.394 of the Fair Work Act 2009 (the Act). His Honour ruled that her employment had not been terminated at the initiative of her employer and further, that her resignation of employment did not constitute a dismissal within the meaning of s.386(1)(b) of the Act. The appellant's employer was BlackRange Wealth Management Pty Ltd trading as Commonwealth Financial Planning (the employer).
 The appeal is lodged under s.604 of the Act. As the decision of the Senior Deputy President was one made under Part 3-2 of Chapter 3 of the Act the appeal is subject to s.400 of the Act. That section is in the following terms:
“400 Appeal rights
(1) Despite subsection 604(2), FWA must not grant permission to appeal from a decision made by FWA under this Part unless FWA considers that it is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by FWA in relation to a matter arising under this Part can only, to the extent that it is an appeal on a question of fact, be made on the ground that the decision involved a significant error of fact.”
The decision under appeal
 His Honour noted that the appellant argued that her employment had been terminated at the initiative of the employer or, in the alternative, if she had resigned then it was a resignation in circumstances covered by s.386(1)(b) in that she was forced to do so because of conduct engaged in by the employer. The employer argued that the appellant had abandoned her position and voluntarily resigned. It is appropriate that we reproduce s.386(1) of the Act:
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
 His Honour set out in some detail the evidence before him. Witness statements and documentary evidence had been tendered. Oral evidence was given by the appellant and, for the employer, by Mr Nimmo who is the owner and director of the employer, Mr Goodburn and Ms Wengkang. Each was cross-examined.
 The appellant relied on a conversation she had with Mr Nimmo on Friday 14 May 2010 as constituting the termination of her employment. Before we come to how His Honour dealt with that conversation we can summarise briefly the relevant background matters he referred to. Ms Elgammal had been in full-time employment since June 2005. In March 2010 the employer had decided to outsource part of its activities to an external licensee and restructure the business. The appellant was offered a position that was then occupied by another employee. It seems that the offer was made to her as she was the longer serving employee of the two. The other employee, Ms Wengkang was to be made redundant effective 14 May 2010.
 As a result of the restructure the appellant assumed the position of Client Services Manager. The terms of her contract comprised a salary of $65,000 plus superannuation and commission. The hours of work were from 7:45am to 4:45pm Monday to Friday. The appellant and Mr Nimmo enjoyed a good working relationship. In particular, the appellant acknowledged that Mr Nimmo had accommodated her family circumstances allowing her to work flexible hours when required. Despite this it seems that in recent times the appellant’s punctuality had become an issue. There was a recurring pattern of lateness to work and leaving work earlier than was expected.
 His Honour considered text messages and telephone conversations between the appellant and Mr Nimmo which were sent or were had on 14 May 2010. He reproduced a number of extracts from those exchanges. It is clear from his reasons for decision that what each had said and done was closely considered by him as was the context in which the exchanges had occurred.
 Having referred to the evidence His Honour then considered the provisions of s.386 of the Act, the explanatory memorandum and the Full Bench decision in P. O’Meara and Stanley Works Pty Ltd. 1 The extract from that decision referred to by His Honour contained the following observation:
“... In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”
 In paragraph 20 of His Honours decision he referred to the appellant’s contention that Mr Nimmo had terminated her employment in the conversation she had with him on the morning of 14 May. His Honour there observes that the question he had to resolve was whether her view was consistent with an objective analysis of the facts. He found that on any objective assessment none of the evidence supported a finding that Mr Nimmo terminated the employment of the appellant. He had a concern about her lack of punctuality and this was aggravated by the knowledge that his one and only other employee had been made redundant and would be ceasing work on that same day. When the appellant was then running late for work and, prior to arriving at work, was going to get a cup of coffee Mr Nimmo had responded with an “outburst” which at most implied that if the appellant continued to be late for work either she should leave employment, or accept a reduction in pay. This had been said “in the heat of the moment” in a brief informal exchange. At no stage did Mr Nimmo say he was terminating her employment or anything to that effect. His Honour assessed the reference made by Mr Nimmo to reducing the appellant’s pay as a flippant remark and that, at most, if she could not turn up on time he would reduce the commission component of her salary. The appellant had said she would call Mr Nimmo back but did she not do so. She returned to her home. Shortly after 9am she sent a text message which His Honour records as both parties agreeing contained words to the following effect:
“I’ll post you my work key. 45 min late and you want to threaten me. You told me to piss off. I’ve been working so hard and reached my targets and that’s why you paid me extra. Organise with Robyn what needs to be done for my entitlements.”
 His Honour said that the evidence established that Mr Nimmo had expected the appellant would return to work that day but she did not do so, nor did she contact him again either that day or on the weekend. Mr Nimmo tried to contact her on two occasions but the appellant had chosen to not answer his calls. His Honour then referred to two email messages she sent on the following Monday, by which time it appears the appellant had taken some legal advice. The first was around midday in which she said she considered her employment had been terminated effective 14 May and asked for a letter setting out the reason for her termination and when she could expect her entitlements to be paid. The second was sent around an hour later asking for the earlier email to be responded to by 6pm that day otherwise she would take that to mean that he had terminated her employment effective 14 May. We here note that although His Honour did not refer to it, the employer responded to these emails confirming its view the appellant had resigned and, as she had not returned to work or taken Mr Nimmo’s calls her resignation stood. His Honour’s reasons then conclude as follows:
“ Ms Elgammal’s employment had not been terminated; rather, regrettably, she was the recipient of an impulsive and offhand threat by an employer who was clearly frustrated that his soon to be sole employee had arrived to work late (and moreover appeared quite unconcerned about this fact). I find that Ms Elgammal resigned from her employment.
 I am not satisfied that Mr Nimmo’s conduct, seen in its proper context, compelled Ms Elgammal to resign from her employment with the respondent. While Ms Elgammal was understandably upset by Mr Nimmo’s comments, they were far from indicating that it would be impossible for the two of them to continue to work together. A reasonable course of action for the applicant to have taken would have been to ask for a proper and dispassionate discussion about reconciling her difficulties in getting to work on time and the needs of the business.
 It is in these circumstances that I am unable to find that the applicant was terminated at the initiative of her employer, or that the resignation of employment constituted a dismissal within the meaning of s.386(1)(b) of the Act. The application is therefore, dismissed.”
Grounds of appeal/appellants arguments before the us
 Mr Addison submitted that His Honour’s decision contained errors of fact and law. We note however, that with one exception, the appellant takes no issue with His Honour’s summary of the evidence. No error in that summary nor any relevant omission is identified. The only suggestion of a factual error is the amount of her monthly base salary and whether it was $4200 or $3800. We note that in fact the paragraph containing this reference is to evidence that was given by Mr Nimmo. His Honour’s earlier finding about the appellant’s salary plus commission was consistent with the appellants own written statement and her oral evidence. Even if His Honour’s comment in paragraph 24 of his reasons could be said to reflect any error, it is minor and of no consequence to his conclusions. Accordingly, even if we were to accept the appellant’s submission it does not amount to a factual error that could be categorised as significant.
 The appellant also accepts His Honour set out the correct legal test to apply but, in its submission, he misapplied that test. The appellant submits the employer had repudiated the contract and that His Honour had wrongly taken into account Mr Nimmo’s actual intention. The correct test was whether a reasonable person in the circumstances of the appellant would consider the employer had indicated he was not prepared to be bound by the terms of the contact. In support of that submission the appellant referred briefly to the decision of the High Court in Visscher and Giudice 2 and that of Justice Ross in Whittaker and Unisys Australia Pty Ltd.3 Neither case was referred to below and before us little was said about their application to this appeal. The appellant submitted that these decisions support her argument that His Honour had applied the wrong legal test when considering whether what had occurred on 14 May amounted to a repudiation of the contract by the employer. It is adequate for us to indicate that we accept that when considering whether an employer has repudiated the contract the test is not the employer’s actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.
 The manner in which the appellant put her argument to us is somewhat different to how it was put below. We think however this matters little. The appellant needs to establish that she was dismissed, as that is defined in s.386. Before His Honour she concentrated on the two limbs of the definition. Before us she abandoned any reference to the alternative argument that, accepting she had resigned, it was nonetheless a dismissal which came within s.386(1)(b). The appellant relied solely on a few words in the brief conversation on 14 May and submitted that amounts to a repudiation by the employer of her employment contract. She submits she elected to accept the repudiation and was entitled to assert that her employment had been terminated at the initiative of the employer and unfairly so.
 The appellant’s argument ignores, or at best discounts, any of the background evidence and anything else said or done on 14 May 2010. The context is not referred to. In this matter in order to objectively assess whether there was a dismissal context is important and it is clear it was considered by His Honour. We have earlier, in paragraphs 10 and 11, referred to his findings.
 The appellant does not acknowledge the fact her commencement time was 7.45am. On 14 May, by the time she had the conversation with Mr Nimmo she was already running thirty five minutes late, was not then in the office and was asking about getting a cup of coffee. She overlooks other contextual facts such as her good working relationship with Mr Nimmo. He had only recently chosen the appellant to be the employee who would stay on and another employee was made redundant. The conversation occurred on the day when the other employee was to be made redundant leaving the appellant as the only employee in the office. The conversation was very short and was brought to an end by the appellant not by Mr Nimmo. She said she would ring back but did not do so. She declined thereafter to take any call from Mr Nimmo. She should have attended at the office on 14 May but instead she returned home and sent the text message we have referred to in paragraph 10. The conversation could not have reasonably been understood by the appellant to be an indication the employer would no longer be bound by the terms of the employment contract. We agree with His Honour’s assessment that Mr Nimmo had made a flippant remark which, at most, indicated what he may do in the future should her timekeeping not improve.
 We were unable to identify any error in His Honour’s decision as asserted by the appellant. This is a case that turns on its own peculiar facts which were properly considered by His Honour. No error of law is established. No significant error of fact is identified. The grounds do not establish any public interest warranting the grant of permission to appeal. It was for these reasons we refused permission to appeal.
SENIOR DEPUTY PRESIDENT
M. Addison, solicitor, for Ms M. Elgammal.
D. Nimmo for BlackRange Wealth Management Pty Ltd ACN 092 380 348 T/A Commonwealth Financial Planning.
2  HCA 34
3  VSC 9
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