[2017] FWC 3550
FAIR WORK COMMISSION

DECISION



Fair Work Act 2009
s.394—Unfair dismissal

Abdul Javed
v
Proeye Video Productions T/A Proeye Video Productions
(U2017/889)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 JULY 2017

Application for an unfair dismissal remedy.

[1] In his Form F2 – Unfair Dismissal Application (Form F2) lodged on 30 January 2017, Mr Abdul Javed alleged that the termination of his employment by Richard Spanicek T/A Proeye Video (Pro Eye) was unfair. Mr Javed submitted that he had been constructively dismissed by Pro Eye and sought to rely on a course of conduct which he said resulted in his dismissal at Pro Eye’s initiative.

[2] Pro Eye raised jurisdictional objections to Mr Javed’s application. In its Form F3 – Employer Response to Unfair Dismissal Application (Form F3) filed on 7 February 2017, Pro Eye claimed that there was no dismissal as Mr Javed had voluntarily resigned his employment on 4 November 2016 with an effective termination date of 30 November 2016. As such, Pro Eye claimed that Mr Javed’s application was made outside of the 21 day time period allowed for the lodging of an unfair dismissal application.

[3] Pro Eye advised the Fair Work Commission (Commission) via email on 7 February 2017 that it did not consent to participating in conciliation and so the matter was listed for an Extension of Time/Effective Date of Dismissal Conference/Hearing which eventually occurred on 12 May 2017.

[4] Mr Richard Spanicek, Director, represented Pro Eye. Mr Javed sought permission, under s.596 of the Fair Work Act 2009 (the Act), to be represented by his lawyer, Mr C Reichman. I considered written submissions from Mr Javed, Mr Spanicek’s comments in response and, after weighing up the circumstances and the considerations in s.596 of the Act, granted permission for Mr Javed to be represented by Mr Reichman, having particular regard to the fact he is from a non-English speaking background and noting he had requested the assistance of an interpreter.

Preliminary procedural matter

[5] As outlined above, in his Form F2, Mr Javed named Richard Spanicek T/A Proeye Video as the Respondent and listed its Australian Business Number (ABN) as 39 084 793 716. In the Form F3, the Respondent was recorded as Proeye Video Productions T/A Proeye Video Productions, with the same ABN of 39 084 793 716. I have amended the application to record Proeye Video Productions T/A Proeye Video Productions as the Respondent and I consider my doing so comes within the circumstances in which it has been held this is possible pursuant to s.586 of the Act. 1

Was Mr Javed dismissed?

[6] In the normal course of events, the Commission can extend time for the lodging of an unfair dismissal application if it is satisfied, having considered the evidence and submissions at an Extension of Time Conference/Hearing, that there are exceptional circumstances. In assessing whether there are exceptional circumstances, the Commission must have regard to certain matters outlined in ss.394(3)(a)-(f) of the Act. Only if it is satisfied that there are exceptional circumstances can the Commission then exercise its discretion to decide whether to extend the time period allowed for lodging an unfair dismissal application.

[7] Mr Javed initially gave the answer “10 January 2017” when answering question 1.3 in his Form F2, which asked for the date his dismissal took effect. In submissions subsequently filed, he asserted that the effective date of his dismissal was when he received an email from Pro Eye on 13 January 2017 advising that his employment had been terminated.

[8] However, Pro Eye has alleged that Mr Javed resigned his employment on 4 November 2016, with the resignation taking effect on 30 November 2016.

[9] As a result, the question arises as to whether the termination of Mr Javed’s employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the Act. Section 386(1) of the Act provides:

“386 Meaning of dismissed

(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.”

[10] If Mr Javed was not dismissed by Pro Eye within the meaning of s. 386(1) of the Act, there is no jurisdictional basis for him to pursue an unfair dismissal application. The provisions of s.386(2) and s.386(3) of the Act do not apply in this matter.

[11] The particular circumstances of this case and the clear dispute between the parties about the nature of the termination of the employment relationship between Pro Eye and Mr Javed have resulted in me having to make a finding on a question that goes to the heart of the merits of the unfair dismissal application. This is not the usual course in a Conference/Hearing of a jurisdictional objection that the unfair dismissal application is out of time.

[12] In Kyvelos v Champion Socks Pty Ltd 2 (Kyvelos), which involved an application brought under the former section 170CE(8) of the Workplace Relations Act 1996 (Cth), the Full Bench of the Australian Industrial Relations Commission (AIRC) enunciated why evidence on the merits of the application is rarely called at an extension of time hearing:

“In considering whether to accept an application which has been lodged outside the time prescribed in s.170CE(7) the Commission may consider whether, on the basis of the material relied on by the parties, the applicant has a sufficient case on the merits although the discretion should be exercised having primary regard to the circumstances which led to the late lodgement: see by analogy Bearings Incorporated (Australia) Pty Ltd v Treloar [Print P8600] - a case concerned with an application for the late exercise of an election under s.170CFA(8). It should be emphasised that in considering the merits the Commission is not in a position to make findings of fact on contested issues, unless evidence is called on those issues. Evidence is rarely called on the merits and there are sound reasons why the Commission should not embark on a detailed consideration of the substantive case in an application pursuant to s.170CE(8). In particular, it is undesirable that parties be exposed to the requirement to present their evidentiary cases twice.”  3 (my emphasis)

[13] In Kyvelos, the Full Bench found it was not open for the Commissioner at first instance to make a finding that the substantive application had no merit because the witness statements in that matter were unsworn and the declarants were not cross-examined. As such, in that case, it was held there remained the possibility that when all of the evidence was in, the appellant might have persuaded the Commissioner that her selection for redundancy, allegedly having been based on her performance, was unfair. The Full Bench held it was because of this possibility that the appellant's case on the merits could not be dismissed at that stage. 4

[14] This application is distinguishable from Kyvelos. Mr Javed and Pro Eye both led evidence and there was the opportunity for cross-examination of them both on the question of whether or not Mr Javed’s employment was terminated at the initiative of Pro Eye on 4 November 2016.

[15] While this is a question going to the heart of the merits of the unfair dismissal application, it was also central to the determination of the jurisdictional objection that the unfair dismissal application of Mr Javed is out of time. If Mr Javed’s employment was not terminated at the initiative of Pro Eye, or if it is not found he was forced to resign because of conduct or a course of conduct engaged in by Pro Eye, there is no jurisdictional basis for him to pursue his unfair dismissal application under s.386(1)(a) or (b) of the Act.

Evidence

[16] Mr Javed began working for Pro Eye as a video editor on 7 December 2012. It appears common ground that he was engaged pursuant to a written employment agreement (the Contract). 5

[17] On 24 June 2016, Mr Javed sent an email to Pro Eye requesting a review of his performance level and salary for the purpose of seeking a pay raise sufficient to allow him to qualify for a larger housing loan. In this correspondence, Mr Javed stated he had not had a performance review for two years and asserted that his contribution justified a raise in salary in accordance with industry averages and his current competencies and performance.

[18] On 10 July 2016, Pro Eye sent a reply email to Mr Javed acknowledging his request. A meeting was held on 12 July 2016 and Mr Spanicek informed Mr Javed that his request for a salary increase, said by Mr Spanicek to be $13,000, was neither reasonable nor financially feasible.

[19] On 26 September 2016, Mr Spanicek sent a Memorandum to Mr Javed and Ms Kate Lumsden, then a production manager at Pro Eye, outlining that there would be a closedown of Pro Eye’s business operations, applicable to all Pro Eye staff, from 1 December 2016 to 9 January 2017.

[20] Mr Javed continued working for Pro Eye after the 12 July 2016 meeting. He said that in September 2016, he was approached by Mr Nick Ghionis, the owner of another photography and video company called Xsight. Mr Javed began to perform after-hours video production work for Xsight and said that Mr Ghionis told him that he spoke to Mr Spanicek about this and Mr Spanicek said it was ok.

[21] Mr Spanicek’s evidence on this point was different. He said when he became aware Mr Javed was performing work for Xsight, there was a further meeting that took place on 4 November 2016. Mr Javed, Mr Spanicek and Ms Lumsden were in attendance.

[22] As to what occurred during this meeting, Mr Spanicek said he told Mr Javed that he considered his engagement by Xsight to be work for a Pro Eye competitor and a breach of the Contract. Mr Spanicek said he told Mr Javed that he had the option of either immediately ceasing all work for Xsight or resigning his employment.

[23] Mr Spanicek said that in response, Mr Javed told him he would resign and there was agreement that his final working day would be 30 November 2016, the last day before Pro Eye’s business closedown. Mr Spanicek said he also asked Mr Javed for his resignation in writing and when he made further, subsequent requests for Mr Javed to provide a written resignation during November 2016, he was told by Mr Javed that he would do so at a later date.

[24] Mr Javed said that when it was put to him by Mr Spanicek during the meeting that he was working for a competitor, he confirmed it. He said that when he responded by saying he was doing work that Mr Spanicek himself had authorised, Mr Spanicek told him he was breaching the Contract and gave him the choice between resigning or working in accordance with the Contract. Mr Javed said Mr Spanicek also gave him the option of thinking over the options for a week and told him he was dishonest, his work performance had declined and his behaviour had changed. Mr Javed also said that he and Mr Spanicek exchanged various accusations before the meeting concluded.

[25] Ms Lumsden also gave evidence about the meeting on 4 November 2016 and some related matters, stating:

[26] Ms Lumsden’s evidence under cross-examination regarding the 4 November 2016 meeting was recorded in transcript at PN 486-496 as follows:

“Okay.  In terms of the situation, what did you observe?  You say in your statement, "Richard accepted this and it was considered done"?---Mm-hm.

What do you mean by that?---So if I remember correctly, he was given - as I have said in my statement - essentially an option:  "Please stop working for competitors and we can carry on if you choose to do so", or, "Realistically you can't continue working here and working for competitors.  Would you like to take some time to think about this?"

Yes?---The answer was, "No, I need to keep working for competitors.  I'd rather than continue working here."

Right?---"Are you sure you don't want to think about this?"  "Yes, I'm sure."  "So you're resigning?"  "Yes.  Yes, done."  That's what I mean by that.

Did anything else happen after you heard those words?  Did you observe Mr Javed's position or his demeanour?  What was the - - -?---He was not dissimilar - crossed arms, not - engaging as little as possible, I would say.  Engaging as little as possible.  He was very short, very - "aggressive" isn't the right word, but negative.  Just a negative space in that room.  He wasn't happy about it, but - - -

Right?---"Determined" was the other word I would probably use; determined.

What do you mean, determined?---Determined for it to be done.  Determined to be - have, I guess - I don't know about whether "high ground" is the right word, but just - he was sure.  He was really sure of himself.  He was like, "I can't stop working."  He was determined in putting that - - -

So he said, "I can't stop working"?---"I can't stop working for another competitor - - -"

Was he as sure of himself that he was - did he say, "Look, I'm leaving", or any other words?---"I am done.  I consider it done.  Done."

He used the word "done"?---"Done", yes.

He used the word "done"?---Yes.”

[27] I also asked Ms Lumsden some questions, recorded in transcript at PN 553-560:

“THE DEPUTY PRESIDENT:  Just so I'm clear, Ms Lumsden, the conversation in the meeting on 4 November - - -?---Yes.

- - - it was about Mr Javed working for a competitor?---That's right.

The proposition put to him was he couldn't continue to work - - -?---At the same time.

At the same time, and that if he wanted to continue to work for the competitor, he couldn't work for Proeye?---Essentially, yes.  That would be considered a breach of contract, so - - -

He said he couldn't stop working for the competitor?---Yes, that he was unable to.

He was unable to stop working for the competitor?---Mm-hm.

And that he resigned from Proeye?---That's correct.

What did he say?---It did come in the form of a question, so, "Are you" - it did come in the form of a question from Richard, "So you no longer want to be working here?"  "Yes, I do not want to be here any more."”

[28] As to Mr Javed’s demeanour at the meeting on 4 November 2016, Ms Lumsden’s evidence was recorded in transcript at PN 514-523:

“You didn't observe that at the meeting?---I didn't think he was being bullied at the meeting.  I thought they were both pretty firm in their own points and I was doing my best to be impartial and help each other here, so I feel like there was never a case in either party of two against one.

So you didn't observe - okay.  Now, you said that Abdul was having difficulties in understanding things?---I felt so.  I felt both were; that's why I was in the meeting.  That was why in my statement, as Richard asked me to do, my purpose of that meeting was to be primarily a witness but if I felt that they were having trouble communicating with each other, to step in.  So I felt Abdul had trouble understanding where Richard was coming from, of why - - -

But you're not talking about understanding.  You're saying English is Abdul's second language?---Yes.

So did you mean by that that you thought he didn't understand everything that was going on?---In that particular meeting, he seemed to be understanding what was going on.  If there was anything that seemed unclear, then I would clarify in other words, so he didn't - - -

But you don't speak Urdu, do you?---No, but Abdul and I have never had problems communicating in the past.

But you did mention that in your statement, that "given English is Abdul's second language and he became increasingly emotional about the whole thing"?---Yes.  I think that's fair.

Before that you said that he wasn't emotional at all.

THE DEPUTY PRESIDENT:  Sorry, emotional when?  When was he emotional?  Was he emotional in the meeting - - -?---To myself.

- - - or was he emotional after the meeting?---Both.  I would say both.  In terms of emotion in the meeting, it was definitely frustration.

Yes?---Bordering on anger and then, following, it was probably more resentment and again more frustration, more anger and all the negative words, yes.”

[29] Mr Javed maintained he did not resign because he at no stage resigned in writing. It is not in dispute that Mr Javed did not submit a written resignation. It is also not disputed that Mr Javed did not mention to Mr Spanicek that he wanted to withdraw his resignation until 30 November 2016. While Mr Javed gave evidence at the hearing that he told Ms Lumsden two days after the 4 November 2016 meeting that he would not be resigning, this was not put to her when she gave her evidence. Ms Lumsden’s evidence was that it was a few weeks after that meeting before Mr Javed told her he was not going to resign.

[30] Ms Lumsden said that when she initially told Mr Javed there was a recording of the meeting on 4 November 2016 he appeared to be happy about it. Apart from stating that Ms Lumsden sought his resignation two days after the 4 November 2016 meeting, Mr Javed said he found out about the recording when he told her he was not going to resign and she threatened him.

[31] Mr Javed said he obtained advice in the last week of November 2016 to the effect that he could not be intimidated or pressured into resigning his employment. He said he spoke with Mr Spanicek on 30 November 2016 and told him he was not going to resign. Mr Spanicek said he sought advice regarding the consequences of Mr Javed’s revelation and the effect of a verbal resignation.

[32] The previously advised closedown of Pro Eye’s business appeared to commence on 1 December 2016 and following this, a series of emails were exchanged between Mr Spanicek and Mr Javed. 6

[33] Mr Spanicek emailed Mr Javed on 1 December 2016. This email largely concerned work that Mr Javed had done or partially done for Xsight and outlined how it might be completed. Mr Spanicek confirmed his position that there had been no agreement for Mr Javed to perform outside work for competitors of Pro Eye. It otherwise appears from the text of the email that Mr Spanicek was still coming to terms with Mr Javed’s advice that he would not resign.

[34] A further email was sent by Mr Spanicek to Mr Javed at 1:05pm on 5 December 2016 stating:

“Yesterday I had the opportunity to speak with Fair Work Australia. I spoke about the current scenario and how you had changed your mind about your resignation three weeks after the fact and did not advise me of your decision until your agreed final day of work. I was advised a verbal resignation is as good as a written one, if you resigned and I accepted then it is agreed.

…

Your decision was not to remain with Pro Eye. I suggested you take the weekend to think about it but you were adamant that you had already made your decision.

At the time you resigned from your position with Pro Eye and I accepted your resignation. We agreed that you could remain until the end of November. During this period I asked you to provide me with a letter of resignation to which you agreed. I followed you up a few times during this three week period awaiting a formal resignation letter. On the final day 30th November 2016, I called you again and it is then that you said you would not resign, the only way you would leave if I terminate you upon advise [sic] of Fair Work Australia.

…

Please arrange a time with me when I can collect the keys to the office from you. Your alarm codes have been removed from the system. If you have any items to collect please contact me to arrange a suitable time.

Your final pay and holiday pay will be transferred to you immediately dated to 30th November 2016 upon all Pro Eye property and keys being returned. As of the 1st of December 2016, you are no longer an employee of Pro Eye Video Productions and are free to commence work with whom ever you wish too [sic].

All the best and thank you for your service.”   

[35] In an email sent at 1:44pm on 5 December 2016, Mr Javed appeared to be replying to Mr Spanicek’s email of 1 December 2016. It addressed the issue of the work Mr Javed had performed for Xsight. Mr Javed addressed his resignation by stating:

“…Firstly, you aggressively approached me and asked why I was working on Nick’s assignment, which obviously astonished me. You then angrily suggested that either I should resign or work as a contractor for you. My employment is my livelihood and I take it very seriously. So when faced with this kind of pressure to choose between the two options, I agreed to resign verbally right away, and went to seek advice from Fair Work Australia. They explained my work rights to me and the circumstances in which a resignation is appropriate. They deemed it incorrect that I should be pressured in to resignation from my employment. They advised not to succumb to any such pressure and if my employer wishes to terminate the contract, they should do so lawfully and compensate me accordingly. Please understand that this is advice from Fair Work Australia and not a backflip on my part…”

[36] Mr Javed concluded this email by stating he would work as directed as an employee and remained open to discuss things.

[37] Mr Spanicek replied with an email on 6 December 2016. While the copy of the email provided to the Commission has some parts obscured, it is apparent that at that point Mr Spanicek, while noting Mr Javed had changed his mind, still regarded the employment relationship as having been terminated by Mr Javed as a result of his resignation.

[38] Mr Javed replied with an email dated 7 December 2016 in which he confirmed he had returned his office keys and roller shutter remote via the post. He also stated that he had not given written notice of his resignation and nor had he received notice of his termination from Pro Eye and sought Mr Spanicek’s response.

[39] In an email dated 11 December 2016, Mr Spanicek replied stating:

“…As acknowledged, your resignation in November 2016 was received and accepted. Please let it be noted that myself [sic] nor any other person/s at Pro Eye have mentioned to you verbally or in writing that you were, or have been terminated… Rather than going backwards and forwards, would you like your position at Pro Eye back commencing after your holiday period on the re opening date of business the 10th of January… If you are happy to commence your position back at Pro Eye in 2017, you must stop any and all editing work immediately for any and all direct competitors… Please also note that the editing department and team will be relocating to Caulfield on the 10th of January 2017 indefinitely. Looking forward to hearing back from you ASAP…”

[40] Mr Javed responded to this email on 13 December 2016, querying how Pro Eye “unilaterally can accept my resignation in November 2016” and reiterating that he did not approach the 4 November 2016 meeting with an intent to resign his employment, but after being given only two options to choose from felt he was placed under pressure that led to his resignation. Mr Javed raised the recording of the 4 November 2016 meeting for the first time. He appeared to invite Mr Spanicek to terminate his employment. Mr Javed concluded by stating while he was “happy to continue working with Pro Eye” after his holidays and was prepared to meet and discuss, he seemed to suggest that there was either a termination or forced resignation in play, noting the office relocation.

[41] Mr Spanicek replied with a further email on 15 December 2016. In it he reaffirmed his position in relation to Mr Javed’s involvement with Xsight, the tape recording of the 4 November 2016 meeting, the resignation (which he maintained was legally binding) and Mr Javed’s allegations of bullying and harassment. As to the decision to relocate the office, Mr Spanicek stated:

“It is particularly sad to hear that you maintain that I am moving you out of the organization [sic]. The decision to centralise operations to Caulfield has no connection to our employment relationship, and I can assure you is in no attempt to make our relationship so difficult and unreasonable to force your resignation.

Instead the decision to relocate the West Melbourne operations are due to broader arrangements I had previously made in September 2016 with a previous tenant who were wanting to re-establish their operations at that office. Their lease of the office, and the centralisation of our operations to Caulfield makes our business structure more feasible, and it allows for all of us to function more effectively as a team.”

[42] In an email sent at 11:09am on 20 December 2016, Mr Javed suggested a discussion “to see what the next steps should be” and “to agree on a resolution or agree to continue to dispute”. Mr Spanicek replied by email at 7:58pm on the same day stating:

“If you wish to continue your employment with Pro Eye, I am awaiting for you on 10/01/2017 at the new office location in Caulfield…at 9am sharp…I do not see a further need to discuss anything else, as all the points of concern have been covered previously quite extensively. Once again, I reiterate that Pro Eye does not terminate your employment. If you feel you still have the need to go to Fair Work Australia, it is entirely up to you.”

[43] Mr Javed’s next email to Mr Spanicek was on 5 January 2017 when he advised that he would be prepared to return to work on 10 January 2017 at the West Melbourne office and that if this was not acceptable, he would regard it as a “unilateral and unfair termination” of his employment. Mr Spanicek sent a reply email on 6 January 2017 in which he stated:

“…On numerous occasions I have clearly stated to you that your employment is not being terminated by me and you are welcome to continue working for ProEye. I must remind you, that it is you who kept changing your mind back and forth on whether you wish to resign or continue your employment. I am willing to put it all behind us and start New Year on a fresh ground… It almost looks like you want me to say that I am terminating your employment so you will get the monetary benefits associated with it, as opposed to having an intention to retain your employment with Pro Eye.

…

Your contract does not stipulate your workplace in West Melbourne. Unfortunately because of your lack of communication following your resignation and as I understood it, you resigned, I made other arrangements for the lease of more space at Pro Eye, I can’t change this now. All the computers have been moved to Caulfield. If you are refusing to turn up to work in Caulfield, I will take it as another confirmation that you have an alternate intention for not keeping your employment with Pro Eye.”

[44] In his reply email dated 9 January 2017, Mr Javed stated “I am happy to start work at North Melbourne office other option is send work in hard drive to my home… otherwise I will be taking this as unilateral and unfair termination”.

[45] Mr Javed did not attend work at the Caulfield office on 10 January 2017. On 13 January 2017, Mr Spanicek sent Mr Javed an email which stated:

“Dear Abdul,

Since your absence from work has exceeded three (3) consecutive days as of 10/01/2017, and since you have failed to obtain my consent for the said absence, nor have you provided a justification for it, I take it as evidence of you abandoning your employment, as prescribed in clause 11.1 of the contract, that you have signed at the start of your tenure at ProEye on 6/12/2012.

As such, I have arranged the remainder of your accrued annual entitlements to be paid into your bank account.”

[46] Mr Javed responded in an email on 16 January 2017 by stating:

“Hi Richard,

During this time I learnt disturbing past events (covert recording etc) as well, therefore, I cannot accept working from your residence. I am now forced to take a full-scale legal action against you for this unfair dismissal. I consider this a termination and if you agree I am willing to work as a contractor after that. I will wait till Tuesday 24th Jan for you to consider these options one last time. After that I am going ahead with all legal options available to me…”

[47] Payments continued to be made to Mr Javed after 30 November 2016. As to these, Mr Spanicek gave evidence that he does not deal with Pro Eye’s books or payments and nor did he deal with Mr Javed’s final payment. His explanation was that instead of Mr Javed being paid a lump sum following 30 November 2016, he was paid weekly from December 2016 to January 2017 due to the operation of an automatic direct payment system. Mr Spanicek said there was an attempt made to cancel these payments manually but it was not successfully executed and the mistake was not rectified until Pro Eye’s bookkeeper, Ms Chrys Palmer, realised the error.

[48] In this regard, Mr Spanicek provided a copy of two emails. 7 The first email dated 4 November 2016 was sent by his partner, Ms Abi Palmer, to the bookkeeper, Ms Chrys Palmer. It advised that Mr Javed would be leaving the company at the end of November 2016 and requested that his pay up until that date be calculated. The second email, dated 11 May 2017, was from Ms Chrys Palmer to Mr Spanicek, and stated:

“It was my understanding as per Abi’s email [below] dated 04/11/16 that Abdul had resigned as of 30/11/16. I was on holiday in NZ as of the 11/11/16 and was in fact delayed there as I was in the Kaikoura earthquake. I gave the holiday payout instructions to Abi for this.

As I do not look at the Proeye accounts until the quarterly BAS is due, I had no knowledge that the payout had not occurred in a lump sum, instead it had been paid weekly – this direct debit was not cancelled at this time. Therefore, as soon as I saw the error, I made sure we paid Adbuls [sic] balance of holiday pay in full immediately on Friday 13/01/17.

It was never the intention by Pro Eye that the weekly payments were considered continued employment. There was an error in communication in stopping the weekly direct credit, this was rectified as soon as I saw the bank statements. His super is also paid up to date. I am concerned Abdul never queried this to me as he knows how to contact me by ‘phone & email.”

Findings

[49] Determining the jurisdictional issue of whether Mr Javed was dismissed within the meaning of s.386(1) of the Act requires answering the following questions:

[50] As to whether an employer has repudiated a contract of employment, the test is whether the conduct of the employer, when viewed objectively, showed an intention to no longer be bound by the contract. 8 However, it is important to bear in mind, the test under the Act as to whether an employee has been “terminated on the employer’s initiative” relates to the termination of the employment relationship, not the contract of employment.9

[51] It is uncontroversial to highlight the importance of considering all of the circumstances, including the conduct of both the employer and the employee in determining whether a person’s employment has been “terminated on the employer’s initiative”.

[52] The Full Court of the Federal Court in Mohazab v Dick Smith Electronics (No.2) 10 articulated an important feature of what termination at the initiative of the employer is:

“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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”  11

[53] A forced resignation is when an employee feels he or she had no other option to resign 12 and an employee must prove the employer engaged in conduct, or a course of conduct, that forced their resignation.13

[54] That said, in Barkla v G4S Custodial Services Pty Ltd 14, a Full Bench of Fair Work Australia cited with approval the Full Bench of the AIRC’s conclusion in O’Meara v Stanley Works Pty Ltd15 (O’Meara), that there must be action by the employer that either intends to bring the relationship to an end or has that probable result.16 (my emphasis)

[55] The Full Bench in O’Meara also concluded that 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 employee had no effective or real choice but to resign. 17

[56] At the heart of the breakdown of the relationship between Mr Spanicek and Mr Javed was the level of Mr Javed’s remuneration. Mr Javed was aggrieved because his request for a pay rise was rejected. Mr Spanicek maintained Pro Eye could not afford an increase of the magnitude sought. Mr Javed claimed Mr Spanicek gave his consent to him performing work for other businesses to supplement his income, including Xsight. Mr Spanicek maintains he did not agree for Mr Javed to work for competitors of Pro Eye.

[57] Ms Lumsden was not privy to this latter element of the discussions between Mr Spanicek and Mr Javed on this point but she gave evidence that following Mr Spanicek’s rejection of Mr Javed’s request for a pay rise, Mr Javed’s behavior was highly emotional and fairly aggressive, he worked less hours, left early and slowed down a little. 18 She stated Mr Javed “handled the dispute poorly from that point” but also stated that she thought Mr Spanicek could have handled the issue of the pay rise more effectively.19

[58] I have had regard to the evidence from Mr Spanicek, Mr Javed and Ms Lumsden concerning the dispute over Mr Javed’s remuneration and the meeting conducted on 4 November 2016. On what turned out to be a significant point of dispute during this meeting, I prefer the evidence of Mr Spanicek that he had neither agreed and nor had he consented to Mr Javed performing work for competitors.

[59] I am satisfied that Mr Javed resigned his employment with Pro Eye during the course of the meeting on 4 November 2016, the resignation was accepted by Mr Spanicek and it was agreed that the employment would cease on 30 November 2016. Both Mr Spanicek and Ms Lumsden formed the view that Mr Javed resigned and I consider this conclusion was open to them, based on what Mr Javed said during the course of the meeting. I recognise Mr Javed appears to have adopted the view that that even though he said he would resign when Mr Spanicek put the two options to him during the meeting, this did not constitute a resignation because it was not in writing. However, I note it seems that Mr Javed only formed this view subsequent to the meeting on 4 November 2016. He did not press this point during it, instead offering his resignation during the course of his conversation with Mr Spanicek. I am satisfied Mr Javed understood what he was doing.

[60] I do not consider Mr Spanicek’s subsequent requests for Mr Javed’s resignation to be confirmed in writing operate to undermine his acceptance of it. Mr Spanicek’s acceptance of Mr Javed’s resignation was not conditional upon it being reduced to writing. I consider his seeking it in writing was simply for confirmation.

[61] I am therefore not satisfied that Mr Javed’s employment was terminated on the initiative of Pro Eye within the meaning of s.386(1)(a) of the Act.

[62] I am not persuaded that Mr Javed was forced to resign because of conduct, or a course of conduct, engaged in by Pro Eye or that he had no other option but to resign within the meaning of s.386(1)(b) of the Act. The evidence does not persuade me that at the time of the meeting on 4 November 2016, Pro Eye had engaged in action that was intended to bring the employment relationship to an end or would have that probable result. No doubt Mr Javed was disgruntled with his level of remuneration with Pro Eye but Pro Eye was under no obligation to grant him the pay increase he wanted and nor was it unreasonable of it to insist that he not carry out work for competitors. Indeed, the Contract specifically provided that during Mr Javed’s employment, he was not to be employed by another business that competed with Pro Eye’s business.  20

[63] In general, an employer is entitled to treat an unambiguous resignation as just that. However, as was made clear by a Full Bench of the AIRC in Ngo v Link Printing Pty Ltd 21 (Ngo), where there are special circumstances, such as when words of resignation are spoken in anger, or in the heat of the moment or under extreme pressure, it may be unreasonable for an employer to accept them forthwith, without allowing a reasonable time to pass. As was stated in Ngo:

“We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:

‘The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

“In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where ‘special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.” 22

[64] I have considered the question as to whether there were special circumstances attached to Mr Javed’s resignation on 4 November 2016. In his witness statement and in evidence at the hearing, Mr Javed said he was upset and very hurt at some of the things Mr Spanicek said to him during the meeting. As to the tone of the meeting, I found Ms Lumsden to be a wholly credible witness. She knew both Mr Spanicek and Mr Javed well, liked them both and was saddened by the dispute that arose between them. I consider that she gave her evidence objectively and made appropriate concessions. I consider her account of the meeting to be the most compelling. Ms Lumsden observed Mr Javed to be angry and frustrated during the meeting but she also described his demeanour as determined and assured. She recounted that in the course of the meeting Mr Javed was given at least two opportunities to take some time to think about what he would like to do and he declined them, instead immediately confirming his desire to resign and work for Pro Eye competitors.

[65] At the hearing, Mr Javed said he told Ms Lumsden two days after the 4 November 2016 meeting that he would not be resigning but this was not put to her when she gave her evidence. Ms Lumsden’s evidence was that it was a few weeks after that meeting before Mr Javed first told her he was not going to resign. It is not disputed that Mr Javed did not mention to Mr Spanicek that he wanted to withdraw his resignation until 30 November 2016.

[66] On the evidence before me, I am not satisfied there were special circumstances attached to Mr Javed’s resignation on 4 November 2016 that required a reasonable period of time to lapse before it was accepted. I consider Pro Eye was entitled to treat Mr Javed’s resignation as a resignation. Further, I have been guided by the proposition espoused by Justice Gray in Birrell v Australian National Airlines Commission 23 that words of resignation uttered in the heat of the moment must be retracted swiftly in order for the resignation to be withdrawn.24

[67] As things transpired, Mr Javed first advised Mr Spanicek over three weeks later, on 30 November 2016, that he was not going to resign. This triggered the email correspondence that passed between the parties during the period 1 December 2016 – 16 January 2017. I do not consider this correspondence establishes either that Mr Javed’s purported withdrawal of resignation was accepted by Pro Eye, or that Mr Javed agreed to resume employment with Pro Eye. In this latter respect, it is clear that Mr Javed neither agreed to work from the new premises of Pro Eye in Caulfield, which was to take effect when Pro Eye re-opened on 10 January 2017 and nor did he comply with Mr Spanicek’s direction to do so.

[68] Finally, I have had regard to the evidence and material before me relating to the continuing payments made to Mr Javed post-30 November 2016. I am satisfied that these were made as a result of a payroll error, as opposed to being payments made because Mr Javed had advised Mr Spanicek on 30 November 2016 that he was not going to resign and Pro Eye accepted this as a withdrawal of his resignation.

Conclusion

[69] I am not persuaded Mr Javed’s employment was terminated on the initiative of Pro Eye and nor am I persuaded that Mr Javed was forced to resign because of conduct, or a course of conduct, engaged in by Pro Eye. I am therefore satisfied that neither s.386(1)(a) nor s.386(1)(b) of the Act applies to Mr Javed.

[70] As I have found that Mr Javed was not dismissed from his employment with Pro Eye within the meaning of s.386 of the Act, there is no jurisdictional basis for him to pursue his unfair dismissal application. It is therefore not necessary for me to otherwise deal with either the question of whether an extension of time for the lodgement of his application is required or the merits of the application he has sought to pursue.

[71] Mr Javed’s unfair dismissal application is dismissed and an order to this effect will be issued along with this decision.

Seal of the Fair Work Commission with member's signature.

DEPUTY PRESIDENT

Appearances:

C Reichman for the Applicant.

R Spanicek for the Respondent.

Hearing details:

2017.

Melbourne:

May 12.

 1   Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 at [28].

 2   Print T2421.

 3   Ibid at [14].

 4   Print T2421 at [13].

 5   Exhibit A1 - Attachment ABJ1.

 6   Attachments to Exhibit A1 and R1.

 7   Exhibit R2.

 8   Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 at [13].

 9   Searle v Moly Mines Limited (2008) 174 IR 21 at [22].

 10   (1995) 62 IR 200.

 11   Ibid at 205.

 12   Mohazab v Dick Smith Electronics (No.2) (1995) 62 IR 200 at 206.

 13   Australian Hearing v Peary (2009) 185 IR 359 at 367.

 14   [2011] FWAFB 3769.

 15   PR 973462.

 16   [2011] FWAFB 3769 at [24].

 17   PR 973462 at [23].

 18   Transcript PN 546-550.

 19   Exhibit R3.

 20   Exhibit A1 - Attachment ABJ1 at cl. 9.2.

 21   [1999] AIRC 57.

 22   Ibid at [12].

 23   (1984) 5 FCR 447.

 24   Ibid at 459.

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