[2013] FWCFB 5279

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Fair Work Act 2009

s.604—Appeal of decision

Kylie Bruce
Fingal Glen Pty Ltd (in liq)



Appeal against decision - whether employee was dismissed - whether conduct or course of conduct by employer forced employee to resign - applicable principles - public interest.

[1] This is an application by Ms Kylie Bruce (the Applicant) for permission to appeal and, if permission is granted, an appeal pursuant to s.604 of the Fair Work Act 2009 (the Act). The Applicant seeks to appeal against a decision of Senior Deputy President O’Callaghan made pursuant to s.394 of the Act. 1 In the decision, the Senior Deputy President determined that the Applicant had not been dismissed by Fingal Glen Pty Ltd (the Respondent), and as such was not entitled to pursue an application for an unfair dismissal remedy against it.

[2] The background to the appeal can be briefly set out as follows. Between January 2012 and January 2013 the Applicant was employed by the Respondent as a part-time receptionist at the Comfort Inn Adelaide Riviera. Throughout this time her wages were frequently paid late, she was not paid on time for a period of annual leave taken in early January 2013, and the Respondent did not make any superannuation contributions on her behalf. The Applicant resigned her employment with the Respondent by a letter dated 10 January 2013, in which she sets out some of these complaints.

[3] The Applicant lodged an application for an unfair dismissal remedy with the Fair Work Commission (the Commission) on 29 January 2013. The Respondent filed its response to the application on 14 February 2013, relying on the Applicant’s resignation from her employment. Prior to the original listing for hearing of the matter, the Respondent was wound up by order of the Federal Court of Australia. The Senior Deputy President therefore directed the parties to file submissions in relation to whether the matter should proceed and who the correct respondent was. On 2 May 2013 the Senior Deputy President issued a decision 2 finding that various legislative provisions relating to companies in liquidation3 that might prevent the hearing of the matter did not apply, and that the matter could proceed.

The Senior Deputy President’s Decision

[4] In the proceedings before the Senior Deputy President, the Applicant contended in effect that she had been forced to resign because of conduct or a course of conduct engaged in by the Respondent, and that she had therefore been dismissed (see s.386(1)(b) of the Act). The Respondent did not appear in the proceedings. The Senior Deputy President was required to consider in his decision whether the Applicant had been dismissed within the meaning of the Act.

[5] In his decision the Senior Deputy President reviewed the part of the Explanatory Memorandum to the Fair Work Bill 2008 that deals with what became s.386 of the Act, and relevant decisions of the Commission’s predecessor bodies and the Federal Court. He noted that failure by an employer to pay an employee can in certain circumstances constitute dismissal by an employer, 4 and quoted a decision of Commissioner Deegan in which it was found that this had occurred.5 However the Senior Deputy President distinguished the matter before him on the basis that it was a less extreme case, and that wages due to the Applicant were paid, albeit late.6 He referred to provisions relating to the payment of wages in the modern award covering the Applicant’s employment,7 and noted a number of avenues by which she or her union could have taken action against the Respondent.8 He said that:

[6] The Senior Deputy President concluded that:

Appeal Principles

[7] An appeal under s.604 of the Act is an appeal by way of rehearing, with the powers of the Full Bench being exercisable only if there is error on the part of the primary decision-maker: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission. 9 The nature of the error which an appellant must demonstrate will depend upon the nature of the decision appealed.

[8] Because only a person who has been dismissed can pursue an unfair dismissal remedy (see s.385(a) of the Act), the question of whether an employee has been dismissed is a prerequisite to the exercise of the Commission’s jurisdiction under Part 3-2 of the Act. Whether a person has been dismissed within the meaning of the Act is a question of jurisdictional fact, not a matter for the exercise of the Commission’s discretion. 10 As such:

[9] An appeal under s.604 of the Act may only be pursued with the permission of the Commission. This would normally require an applicant to demonstrate an arguable case of appealable error and to refer to other considerations which would justify the granting of permission to appeal. Although s.604(2) requires the Commission to grant permission to appeal if it is satisfied that it is in the public interest to do so, this does not apply in relation to an application to appeal from an unfair dismissal decision. The effect of s.400 of the Act is that the general approach to dealing with appeals is varied in two significant ways in relation to appeals from unfair dismissal decisions. First, permission to appeal may only be granted where the Commission considers it is in the public interest to do so (s.400(1)). Secondly, where an appeal is based on an error of fact, the appeal can only be made on the ground that the decision involved a significant error of fact (s.400(2)).

[10] The meaning to be given to “public interest” in s.400(1) of the Act was considered in GlaxoSmithKline Australia Pty Ltd v Makin, 12 where the Full Bench said that:

Relevant legislative provisions and case law

[11] The Senior Deputy President decided that the Applicant had not been unfairly dismissed because she had not been dismissed (see s.385(a) of the Act). The word “dismissed” is defined in s.386 of the Act:

[12] According to the Explanatory Memorandum to the Fair Work Bill 2008,

[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 13 (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd14 (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

[14] It is important that this passage be read in the context of the judgment as a whole. 16 It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.17

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd 18 (Pawel) and ABB Engineering Construction Pty Ltd v Doumit19 (ABB Engineering), and we accept the Applicant’s submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.

[16] In Pawel the Full Bench said that:

[17] In ABB Engineering, the Full Bench said that:

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O’Meara v Stanley Works Pty Ltd 22 (O’Meara) as follows:

[19] Subject to the comments below, we accept and adopt this as a summary of the principles applicable in determining whether an employee has been forced to resign because of the conduct of the employer within the meaning of s.386(1)(b) of the Act.


[20] In the appeal the Applicant submitted that the Senior Deputy President applied the wrong test in deciding whether the Applicant had been dismissed within the meaning of s.386(1)(b). Reference was made to instances in the decision where the Senior Deputy President frames the relevant test as being whether resignation was “the only option available”. 23 It was said that by applying this test rather than that set out in O’Meara the Senior Deputy President erred and thereby reached the wrong conclusion in relation to s.386(1)(b).

[21] Assuming for present purposes that the test applied by the Senior Deputy President is materially different to that set out in O’Meara, we are not satisfied that in the circumstances of the present case the Applicant was dismissed. In relation to whether the Applicant had “any effective or real choice but to resign”, 24 two points should be noted. First, as referred to by the Senior Deputy President, there were options other than resignation by which the Applicant could have addressed the persistent late payment of her wages. Secondly, we accept that in some circumstances the late payment of wages and/or a failure to pay superannuation may be such as to amount to conduct which has forced an employee to resign. However in the circumstances of the present case we are not persuaded that persistent delays of 1-2 days in payment, with some longer delays, and a failure to pay superannuation, left the Applicant with no effective or real choice other than to resign.

[22] In relation to whether on “an objective analysis of the employer’s conduct” the late payment of wages and failure to pay superannuation “was of such a nature that resignation was the probable result”, we note that the Full Bench in O’Meara was drawing from Rheinberger. In that case Justice Moore said that:

[23] The situation contemplated in this passage is one in which the act of an employer which led to an employee’s resignation was not intended to cause an employee’s resignation (as was the case in Mohazab), but “would, on any reasonable view, probably have that effect”. Rheinberger therefore qualifies the passage from Mohazab quoted above in two respects. First, an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign. Secondly, although it is an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee”. 26 There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result. The “limb” of the O’Meara test relating to resignation as a probable result of an employer’s conduct should be read in this light.

[24] In the circumstances of the present case, resignation was a possible and foreseeable result of the Respondent’s conduct, and in many respects a reasonable response in the circumstances. However this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. Given the other avenues available to the Applicant to pursue her complaints, and taking into account the nature of the Respondent’s conduct, we do not consider that the Applicant’s resignation was objectively the probable result of the Respondent’s conduct, and therefore that the Applicant was forced to resign because of that conduct. In this regard, we note that although there were delays in the payment of wages, the delays were short and the Applicant was paid her wages in full, and that the Applicant did not take any further steps to pursue her complaints other than raising them with the Respondent.

[25] For all the above reasons, we conclude that even if there is a material difference between the test applied by the Senior Deputy President and that set out in the relevant authorities, the Senior Deputy President’s conclusion in relation to s.386(1)(b) was correct.

The public interest

[26] The Applicant submitted that it was in the public interest to grant permission to appeal because while the issue of what constitutes dismissal commonly comes before the Commission, there is disharmony between some recent decisions in the way that the relevant principles and reasoning has been applied. In this regard, reference was made to the decisions in Rind v Australian Institute of Superannuation Trustees 27 and Bishop v Incitec Pivot Ltd.28

[27] It does not appear to us that there is any real question as to the correct principles to be considered in applying s.386(1)(b) of the Act. Section 386(1)(b) reflects the common law principles of constructive dismissal set out in Mohazab, Rheinberger, Pawel and ABB Engineering, and summarised in O’Meara.

[28] More specifically, it was submitted that recent decisions also create uncertainty as to both the relevance and existence of alternative remedies (including under award provisions), and the nature and extent of employer conduct required to render a resignation a dismissal under s.386(1)(b). However, we consider that each of these matters relate to questions of fact which must be considered in the circumstances in each case.

[29] Plainly the existence of alternative means to address an employer’s conduct may be relevant to the consideration of whether an employee had “no effective or real choice but to resign” and/or the probability that they would resign as a response to that conduct, but the weight to be given to the availability of such remedies will depend upon the nature of both the employer’s action and the available remedy in a given case. The question of the nature of the employer conduct required to constitute dismissal will likewise vary greatly from case to case and according to all of the facts and circumstances of a particular matter. It follows that any decision on appeal will be of only limited relevance beyond the circumstances of the particular case.

[30] It was also submitted that refusing permission to appeal would result in substantial injustice. We do not consider this submission to be made out, as we are satisfied that on the application of the proper test relating to s.386(1)(b) of the Act, the Senior Deputy President’s conclusion was correct.

[31] We have therefore decided that the present application does not raise any issue of such importance as to attract the public interest and to warrant granting permission to appeal.


[32] For all of the above reasons, we do not consider that there is any public interest in granting permission to appeal, or that the Applicant would have any reasonable prospect of success if permission were granted. As such permission to appeal is refused and the appeal is dismissed.



P Dean of United Voice for the Applicant

Hearing details:



August 1.

 1   [2013] FWC 3941.

 2   [2013] FWC 2704.

 3   See ss.440D, 471B and 500(2) of the Corporations Act 2001.

 4   [2013] FWC 3941 at [16].

 5   Hobbs v Achilleus Taxation Pty Ltd ATF The Achilleus Taxation Trust [2012] FWA 2907.

 6   [2013] FWC 3941 at [19], [23].

 7   Clause 26 of the Hospitality Industry (General) Award 2010 [MA000009].

 8   Ibid at [20]-[21], [24]-[25].

 9   (2000) 203 CLR 194 at 205.

 10   See e.g. Dover-Ray v Real Insurance Pty Ltd [2010] FWAFB 2670 at [27].

 11   McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd [2013] FWCFB 2568.

 12   [2010] FWAFB 5343 at [26]-[27].

 13   (1995) 62 IR 200.

 14   (1996) 67 IR 154.

 15   (1995) 62 IR 200 at 205-6.

 16   O’Meara v Stanley Works Pty Ltd, AIRC Print PR973462 (11 August 2006) at [23].

 17   Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160; Pawel v Advanced Precast Pty Ltd, AIRC Print S5904 (12 May 2000) at [13].

 18   AIRC Print S5904 (12 May 2000).

 19   AIRC Print N6999 (9 December 1996).

 20   AIRC Print S5904 (12 May 2000).

 21   AIRC Print N6999 (9 December 1996). The print does not contain page or paragraph numbers.

 22   AIRC Print PR973462 (11 August 2006).

 23   [2013] FWC 3941 at [27].

 24   O’Meara v Stanley Works Pty Ltd, Print PR973462 (11 August 2006) at [23].

 25   (1996) 67 IR 154 at 160-1.

 26   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205.

 27   [2013] FWC 3144.

 28   [2011] FWA 8289.

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