[2011] FWAFB 6265

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Fair Work Act 2009
s.604 - Appeal of decisions

Ross Davidson
The Commonwealth of Australia (represented by the Department of Climate Change and Energy Efficiency)



Appeal against decision [2011] FWA 3610 of Commissioner Deegan at Canberra on 7 June 2011 in matter number U2011/151 - Code of Conduct investigation - constructive dismissal- appeal principles - permission to appeal.

[1] This is an appeal, for which permission is required, against a decision of Commissioner Deegan dismissing an application by Mr Ross Davidson (the Applicant) for an unfair dismissal remedy. The application was made pursuant to s.394 of the Fair Work Act 2009 (the Act) and alleged that the Applicant had been constructively dismissed from his employment with the Commonwealth Department of Climate Change and Energy Efficiency (the Department).

[2] The relevant facts of the matter are set out in the Commissioner’s decision and do not need to be repeated at length in this decision. In brief terms, the circumstances which lead to the application were as follows.

[3] The unfair dismissal application came before the Commissioner for the purpose of hearing and determining the jurisdictional objection raised by the Department, namely that the Applicant’s employment was not terminated at the initiative of the Department and that he was not forced to resign due to a course of conduct engaged in by the Department (see ss. 385 and 386(1) of the Act). In effect, the issue before the Commissioner was whether the Applicant had been “constructively dismissed” within the meaning of s.386(1)(b) of the Act.

[4] In her decision, the Commissioner summarised the evidence and submissions presented in the proceedings and referred to various authorities on constructive dismissal decided under the previous legislation. These included the following passage from the Full Bench decision in P. O’Meara v Stanley Works Pty Ltd 1:

[5] The Commissioner noted that s.386(1)(b) of the Act is in similar terms as the relevant section of the previous legislation and indicated that she approached the determination of the 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.” 3

[6] The Commissioner considered each of the matters relied upon by the Applicant in submitting that the Department had engaged in a course of conduct which amounted to a repudiation of the employment contract and which forced his resignation. In regard to these matters, we note in particular the following findings and/or conclusions reached by the Commissioner:

[7] The Commissioner concluded as follows;

[8] Section 604 of the Act provides that a person who is aggrieved by a decision such as the one made here may, with the permission of FWA, appeal against the decision. However s.400 of the Act limits that right in unfair dismissal cases. It provides:

[9] As was said by a Full Bench in GlaxoSmithKline Australia Pty Ltd v Makin 10:

[10] The Full Bench indicated some of the situations in which the public interest might be attracted:

[11] In the present matter, the parties were directed to file written outlines of their submissions. When the appeal came on for hearing the Bench indicated that, on the basis of the outlines filed, there were significant issues relating to the question of permission to appeal which should be addressed at the outset.

[12] In the grounds of appeal relied upon by the Applicant, it is alleged that the Commissioner erred in various respects including in failing to make findings about the Applicant’s state of mind, in not properly applying the rule in Jones v Dunkel 15, in not making findings as to the allegations regarding leaks and their bearing on the action taken against the Applicant, and in regard to several other factual matters. In the proceedings it was contended by the Applicant that the public interest requirement for the appeal is satisfied because of the magnitude and number of errors made by the Commissioner and because of the implications for other litigants as to the future conduct of such matters.16

[13] The Department submitted that permission to appeal should be refused on the basis that there was no “manifest injustice” or significant error of fact which had been demonstrated in the Commissioner’s decision.

[14] It was submitted by the Applicant, relying upon the decision in J. Searle v Moly Mines Limited 17, that in determining the issue of jurisdiction the Commissioner should not have considered the reasonableness of the Applicant’s response to the conduct of the Department, only the fact that the conduct lead to him leaving his employment. We consider that this submission involves a misunderstanding of the statutory requirement in s.386(1)(b) of the Act and what was decided in J. Searle v Moly Mines Limited. The inquiry as to whether the conduct of an employer has “forced” an employee to resign necessarily requires consideration as to the appropriateness of the employee’s response: whether the conduct of the employer left the employee with no reasonable choice but to resign.

[15] It was also submitted by the Applicant that the Department had concealed the causal link between the leak allegations and the Code of Conduct investigation and other actions taken against him and that this aspect of the evidence was not properly taken into account by the Commissioner in her decision. We note that the Commissioner referred to the Crikey.com allegations in setting out the background to the matter. However the Crikey.com allegations were not substantial issues upon which the case turned. The allegations did not form part of the Code of Conduct investigation and were not part of the conduct of the Department which the Applicant claimed had forced him to resign. On the Applicant’s own evidence, he did not know about the Crikey.com allegations at the time he filed his unfair dismissal application. The Commissioner was obliged to make findings on material facts being relevant to the issues of substance on which the case turned. There was no obligation to make findings on every matter raised in the proceedings.18

[16] It was also contended by the Applicant that the key persons who made the decision to institute the Code of Conduct investigation and the proposed suspension were not called as witnesses by the Department in the proceedings before the Commissioner. Therefore it was said that the Applicant was denied the opportunity to examine the decision-makers about real reasons for the actions taken against him and from showing why the Department’s conduct was sufficient for him to regard himself as being dismissed. The Commissioner noted in her decision that the Applicant’s representative submitted that adverse conclusions should be drawn regarding the failure of the Department to call certain witnesses. However the Commissioner stated that she would not draw any adverse conclusions in the circumstances of the present matter where the “majority of pertinent facts ... were set out in the documentation and tendered in evidence and the authenticity of that documentation was not in dispute.” 19 We consider that the approach adopted by the Commissioner was consistent with the rule in Jones v Dunkel and its application in industrial cases.20 It was open to the Commissioner not to draw the adverse inferences sought by the Applicant.

[17] The Applicant also sought to rely upon various alleged errors of fact in the Commissioner’s decision. None of these would, if established, amount to a significant error of fact as referred to in s.400(2) of the Act.

[18] In all the circumstances we have decided not to grant permission to appeal in this matter. It has not been shown that there was any manifest error in the decision of the Commissioner or that the appeal raises any principle of general application. The Commissioner identified and applied the correct principles in reaching her decision. There was no contest as to the key factual matters relevant to the issues to be determined, namely whether the employer’s conduct was such that resignation was the probable result or that the employee had no real or effective choice but to resign. The conclusions reached by the Commissioner are consistent with the authorities and the common understanding that the institution of an investigation and the proposed taking of action to suspend an employee during such investigation would not normally provide a basis for a claim of constructive dismissal. Such processes, provided they are accompanied by appropriate protections for the rights of the employee concerned, allow allegations of concern to an employer to be properly examined and tested. Overall we are not satisfied that the Applicant has demonstrated that there is an arguable case of appealable error in the decision of the Commissioner.

[19] Accordingly, permission to appeal is refused.



Mr A. Knox, Cognisage Australia Industrial Relations, for Ross Davidson.

Ms C. Dowsett, of counsel, with Ms Virginia Masters, Australian Government Solicitor, for the Commonwealth.

Hearing details:

August 11

 1   (2006) PR973462.

 2   P. O’Meara v Stanley Works Pty Ltd (2006) PR973462 at [23]. See also ABB Engineering Construction Pty Ltd v Doumit (1996) Print N6999 and Australian Hearing v L Peary [2009] AIRCFB 680, 28 July 2009.

 3   [2011] FWA 3610 at paragraph 92.

 4   Ibid at [93].

 5   Ibid at [94] and [96].

 6   Ibid at [95].

 7   Ibid at [97].

 8   Ibid at [98].

 9   Ibid at [99]-[103].

 10   (2010) 197 IR 266, [2010] FWAFB 5343.

 11   Workplace Relations Act 1996, s.685.

 12   Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [26].

 13   S.170JF(2) of the pre-Work Choices Workplace Relations Act 1996.

 14   Comalco v O’Connor (1995) 131 AR 657 at p.681 per Wilcox CJ & Keely J, citing O’Sullivan v Farrer (1989) 168 CLR 210.

 15   (1959) 101 CLR 298.

 16   Transcript PN 8.

 17   [2008] AIRCFB 1088 at paragraph 38.

18 See Barach v University of New South Wales [2010] FWAFB 3307 at paragraph 16.

 19   [2011] FWA 3610 at paragraph 105.

 20   See e.g. Xiu Zhe Huang v Rheem Australia Pty Ltd (2005) PR954993 at paragraph 33.

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