[2018] FWC 2237
The attached document replaces the document previously issued with the above code on 20 April 2018.
Amendment to paragraph 12.
Associate to Deputy President Clancy
Dated 24 April 2018
| [2018] FWC 2237 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Reema Sharma
v
Public Transport Development Authority T/A Public Transport Victoria (PTV)
(U2018/137)
DEPUTY PRESIDENT CLANCY |
MELBOURNE, 20 APRIL 2018 |
Application for an unfair dismissal remedy – application for extension of time – applicant not dismissed within meaning of s.386 of the Fair Work Act 2009 (Cth) – application dismissed.
[1] Ms Reema Sharma alleged that the termination of her employment by Public Transport Development Authority T/A Public Transport Victoria (PTV) was unfair.
[2] Ms Sharma lodged her Form F2 – Unfair Dismissal Application (Form F2) with the Fair Work Commission (the Commission) on 4 January 2018. In answering question 1.4 in the Form F2, Ms Sharma stated she was not making her application within 21 calendar days of her dismissal taking effect as required under s.394(2)(a) of the Fair Work Act 2009 (Cth) (the Act). In answering question 1.3, she outlined that her dismissal took effect on 16 October 2017.
[3] In its Form F3 – Employer Response to Unfair Dismissal Application (Form F3) filed on 15 January 2018, PTV also outlined that Ms Sharma’s dismissal took effect on 16 October 2017 and objected to Ms Sharma’s Unfair Dismissal Application on two bases:
• that it was lodged out of time; and that
• she was not dismissed by PTV as she had resigned from her employment.
[4] The matter was referred to conciliation on 2 February 2018 and PTV agreed to participate. Having not settled at the conciliation, the matter was listed for a Conference/Hearing on 3 April 2018 to deal with Ms Sharma’s application for an extension of time.
[5] Given the complexity of the matter and having regard to s.596 of the Act, PTV was granted permission to be represented by Mr D. Proietto of Lander and Rogers Lawyers. Ms Sharma appeared on her own behalf.
[6] In the Form F2, Ms Sharma named ‘Public Transport of Victoria T/A PTV’ as the Respondent. In the Form F3, the legal name of the business was recorded as ‘Public Transport Development Authority’ and the trading name of the business was recorded as ‘Public Transport Victoria (PTV)’. I have therefore amended the Application to this effect and I note my doing so comes within the circumstances in which it has been held this can be done pursuant to s.586 of the Fair Work Act 2009 (Cth) (the Act). 1
[7] 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.
[8] As outlined above, when answering question 1.3 in her Form F2, which asked for the date her dismissal took effect, Ms Sharma gave the answer “16 October 2017”. In submissions subsequently filed she confirmed this, but also stated that the matter was escalated to PTV for internal dispute resolution which completed on 18 December 2017.
[9] PTV has alleged that Ms Sharma resigned her employment on 2 October 2017, with the resignation taking effect on 16 October 2017.
[10] As a result, the question arises as to whether the termination of Ms Sharma’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:
(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.”
[11] If Ms Sharma was not dismissed by PTV within the meaning of s. 386(1) of the Act, there is no jurisdictional basis for her 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.
[12] The particular circumstances of this case and the dispute between the parties about the nature of the termination of the employment relationship between PTV and Ms Sharma 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 where the unfair dismissal application is out of time.
[13] 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)
[14] 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
[15] This application is distinguishable from Kyvelos. Ms Sharma and PTV both led evidence and there was the opportunity for cross-examination of them both on the question of whether or not Ms Sharma’s employment was terminated at the initiative of PTV.
[16] 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 Ms Sharma is out of time. If Ms Sharma’s employment was not terminated at the initiative of PTV, or if it is not found she was forced to resign because of conduct or a course of conduct engaged in by PTV, there is no jurisdictional basis for her to pursue her unfair dismissal application under s.386(1)(a) or (b) of the Act.
[17] At the hearing, Ms Sharma gave evidence and addressed the material she had filed. Mr Trevor Parsons, Senior Manager – workplace relations, gave evidence on behalf of PTV and Mr Proietto made submissions.
[18] The parties agree that Ms Sharma was employed by PTV in 2016 as Bus Infrastructure Project Officer (the substantive position) and later that year was seconded to a temporary higher duties assignment as Project Manager - Bus Infrastructure Project (the secondment).
[19] Ms Sharma was employed under the Transport Integration Act 2010 (Vic), with terms and conditions in accordance with the Public Transport Victoria Enterprise Agreement 2012. 5 This agreement was subsequently replaced by the Public Transport Victoria Enterprise Agreement 2016.
[20] In August 2017, Ms Sharma was advised that the substantive position would be made redundant. Although she was told that she would receive a letter of confirmation and information relating to the PTV redeployment process, Ms Sharma states that no consultation occurred with her regarding her position from the time she was first notified in August 2017 to 20 September 2017.
[21] Ms Sharma had sent an email to Ms Amanda Robertson, Senior People and Culture Business Partner, on 19 September 2017 at 11.59am, 6 with the following questions regarding a Targeted Separation Package (TSP):
“a) will I qualify for a TSP as a result of the restructure given my substantive role no longer exists? And
b) if so, how soon will that be made available to me? and
c) can I forego any applicable redeployment period simply take the TSP? and
d) what happens if I am successful in obtaining another role outside PTV between now and when I receive formal correspondence about the redeployment period- do I forego my eligibility for a TSP? and
e) if I am eligible for a TSP is there any restriction on applying for roles within another government department? And
f) if I am successful in obtaining a role in another government department, and I eligible to transfer my leave entitlements ie LSL, A/L, sick leave etc”
[22] On 20 September 2017, Ms Sharma received a formal letter dated 19 September 2017. It confirmed her substantive position was “surplus to requirements and no longer required to be undertaken at PTV”. 7 This letter outlined arrangements that appear consistent with PTV’s redeployment policy.8
[23] In the letter, PTV advised Ms Sharma that she would commence a three month redeployment period, unless otherwise agreed, during which she would have the opportunity to search for an alternative position within PTV. The letter noted that as Ms Sharma was undertaking the secondment, which had less than three months remaining, the redeployment period would commence at the conclusion of the secondment. The letter then stated:
“In the event that you are unable to secure an alternative position by the end of your redeployment period, your employment with PTV will be terminated on the basis of genuine redundancy. On this date, you will be entitled to receive a Targeted Separation Package (TSP), which is consistent with the Victorian Government’s policy.”
[24] It is apparent that Ms Sharma held the view that her redeployment period should have commenced from the day the substantive position was redundant. Further, she was under the impression, as at 26 September 2017, that this gave raise to two options; a three month redeployment period to source new jobs or accepting a TSP. 9 This is disputed by PTV.
[25] The parties agree that Ms Sharma met with Ms Robertson and Ms Melissa Alessandrini, Program Delivery Director on 27 September 2017. Ms Sharma said that at this meeting she sought confirmation of whether she would be entitled to a TSP if she resigned from her secondment and commenced her redeployment period. The email she sent to Ms Alessandrini following that meeting 10 confirmed that she was seeking clarity in relation to the commencement date for her redeployment period (she asserted it should have been from 18 September 2017) and an indication of her available options. Ms Alessandrini replied at 7.32am on 28 September 2017,11 advising she would seek the information on the following, after which they would meet again:
• Option to commence redeployment period from 18th September 2017;
• Estimated TSP payment calculation in the event Ms Sharma did not find suitable work at the end of the fixed term contract period in December and was therefore eligible for a TSP; and
• Ms Sharma’s entitlement if she resigned during the 3 month redeployment period.
[26] Ms Sharma says an entitlement to a TSP if she resigned from her secondment had been confirmed at the meeting on 27 September 2017 and that a subsequent email from Ms Robertson received on Thursday 28 September 2017 12 contradicted the advice she had received in this meeting.
[27] PTV rejects this aspect of Ms Sharma’s recollection of the 27 September 2017 meeting. It submits that both Ms Robertson and Ms Alessandrini confirmed that Ms Sharma could elect to commence her redeployment date from the start of the new structure (18 September 2017) and that she would not be entitled to a TSP if she resigned prior to the completion of the redeployment period. The evidence of Mr Parsons was that both Ms Robertson and Ms Alessandrini outlined their recollection of the meeting to him. 13 PTV says Ms Robertson’s email to Ms Sharma at 11.15am on 28 September 201714 confirms its version of the meeting and in particular, that Ms Sharma was informed that she would be eligible to receive a TSP if she was unsuccessful in securing another role at PTV during the 3-month redeployment period, whereas if she resigned from her current employment, it would be treated as normal resignation and she would be entitled to receive payment of any unused annual leave and long service leave. Ms Robertson also attached a copy of PTV’s Redeployment policy.
[28] The next working day was Monday 2 October 2017, when Ms Sharma replied with an email to Ms Robertson at 9.25am 15, which stated:
“Thanks for the [email of 28 September 2017] below. But my understanding of situation was below.
• As per the letter received on 20 Sept my redeployment period commence on 31st December 17 and in that situation my understanding is I am considered employed till December and formal period given by PTV to look for job will be commencing on December which I considered completely unfair.
• After discussion with yourself I requested the consideration of my redeployment period to commence on the day, my substantive position is made redundant so that I can commence looking for jobs within PTV from day itself and can secure some job at earliest and meanwhile keep doing the work I am currently doing in the re-deployment period which I am currently doing. Since I could not clarify on the re-deployment commencement date I applied on few positions in PTV and then withdrawn them [sic]. Also their [sic] were few positions on the website which I would have given due consideration.
• Also my understanding was if I resign from my secondment I would have gone back to my substantive position and still work during the re-deployment period. But the below advise is again not in consistent with my understanding. Also during that period if their [sic] would have been any roles within the delivery or in PTV I would have got reasonable timeframe to look for it. My understanding was ongoing position get more preference than secondment but below advise [sic] looks like giving preference to my secondment.
• Also as said on Thursday I was looking to resign from my secondment. Since I indicated to Ranabahu I am not looking at continuing the secondment if I loose [sic] my original position long time back the secondment was extended temporarily for another short term.” (my emphasis)
[29] Shortly after, at 9.49am on 2 October 2017, Ms Sharma sent an email to Mr Ranabahu Wickramasinghe, Principal Project Manager-Network Integrity & Project Assurance, in which she stated “as discussed Thursday I am writing to advise you that I am looking at finishing my secondment on 16 October 2017…” 16 This was sent notwithstanding she had received Ms Robertson’s email that that if she resigned from her current employment, it would be treated as normal resignation and she would only receive payment of any unused annual leave and long service leave.
[30] Ms Robertson sent an email back to Ms Sharma at 11.47am, in which she asked Ms Sharma to confirm whether she was requesting to have an amended letter formalising that her redeployment had commenced on 18 September 2017 and would conclude at the end of the secondment. 17 Despite having received this email, Ms Sharma did not reply.
[31] Ms Sharma sent a further email to Mr Wickramasinghe at 4.07pm on 2 October 2017. 18 It stated:
“As discussed on Thursday I am writing to advise you that I am resigning from my Secondment and 16th October will be my last day in the organisation.
As per the discussion I am giving 2 weeks notice. I recognize during this time frame, I have to provide a complete hand-over but as agreed I will make all the necessary efforts to provide hand-over documents to Manuelito Mitra within this timeframe with no time offs for 2 weeks and if any additional works will be required I will be using my weekends within these 2 weeks to finalize that.
I will be very grateful if you accept this.” (my emphasis)
[32] As to what gave rise to this second email, Ms Sharma amended her statement at the start of the hearing to say that where initially she was terminating her secondment, she changed the wording to resignation following advice from Mr Wickramasinghe. Ms Sharma then gave evidence that:
“…there was the termination done to the secondment only, but not to my substantive position. But when the termination of secondment was sent to Ranabahu, he came back to me and said you just have to change the email and put the resignation in. So that email was sent and then PTV just sent me that letter of accepting and just setting down on my entitlements, which was not inconsistent with the advice that was given a day before in the meeting held between Melissa and Amanda Robertson. So they did send me that letter confirming yes, we accept your resignation, but I actually intended to terminate my secondment only. I never intended to terminate my substantive position, which was terminated considering I'm resigning from a secondment; PTV considered that to be as one position and intended to terminate both the positions at the same time - which was argued by me to the PTV.” 19
[33] Mr Wickramasinghe replied by letter dated 2 October 2017, stating “I refer to your email dated 2nd October 2017 resigning your position as Project Manager with Public Transport Victoria (PTV). I accept your resignation and confirm that your final day with PTV will be 16th October 2017. You will receive your final pay including all owed entitlements on 23 October 2017” 20. This letter also gave some directions regarding the return of equipment, amending online profiles referencing PTV as Ms Sharma’s employer, completing an Exit survey. It concluded by thanking Ms Sharma for her contribution and wishing her well for the future.
[34] It is worthwhile to again set out s.386 of the Act:
“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.”
[35] The Full Bench of the Commission in Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Tavassoli 21 (Tavassoli) extensively considered the legal principles pertaining to s.386(1) of the Act. Noting the two elements it contained, it commenced its consideration of s.386(1)(b) as follows:
“[33] Notwithstanding that it was clearly established, prior to the enactment of the FW Act, that a “forced” resignation could constitute a termination of employment at the initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way that retained the “termination at the initiative of the employer” formulation but separately provided for forced resignation. This was discussed in the Explanatory Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person's employment with his or her employer was terminated on the employer's initiative. This is intended to capture case law relating to the meaning of 'termination at the initiative of the employer' (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”
[34] It is apparent, as was observed in the decision of the Federal Circuit Court (Whelan J) in Wilkie v National Storage Operations Pty Ltd, 22 that “The wording of s.386(1)(b) of the Act appears to reflect in statutory form the test developed by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No. 1) and summarised by the Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd” (footnotes omitted). The body of pre-FW Act decisions concerning “forced” resignations, including the decisions to which we have earlier referred, has been applied to s.386(1)(b): Bruce v Fingal Glen Pty Ltd (in liq);23 Ryan v ISS Integrated Facility Services Pty Ltd;24 Parsons v Pope Nitschke Pty Ltd ATF Pope Nitschke Unit Trust25”
[36] Having then considered what it described as “a line of cases concerned with the circumstances in which an ostensible indication of an intention to resign on the part of an employee may not be effective to terminate the employment on the employee’s initiative”, 26 the Full Bench in Tavassoli stated:
“[47] Having regard to the above authorities and the bifurcation in the definition of “dismissal” established in s.386(1) of the FW Act, we consider that the position under the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in s.386(1)(a) where, although the employee has given an ostensible communication of a resignation, the resignation is not legally effective because it was expressed in the “heat of the moment” or when the employee was in a state of emotional stress or mental confusion such that the employee could not reasonably be understood to be conveying a real intention to resign. Although “jostling” by the employer may contribute to the resignation being legally ineffective, employer conduct is not a necessary element. In this situation if the employer simply treats the ostensible resignation as terminating the employment rather than clarifying or confirming with the employee after a reasonable time that the employee genuinely intended to resign, this may be characterised as a termination of the employment at the initiative of the employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the part of the employer will be a dismissal within the second limb of the definition in s.386(1)(b). The test to be applied here is whether the employer engaged in the conduct with the intention of bringing the employment to an end or whether termination of the employment was the probably result of the employer’s conduct such that the employee had no effective or real choice but to resign. Unlike the situation in (1), the requisite employer conduct is the essential element.”
[37] Dealing firstly with s.386(1)(b), I have adopted the principles relating to set out above.
[38] As far as the actions of Ms Robertson and Ms Alessandrini are concerned, the material before me does not lead me to conclude that Ms Sharma was forced to resign due to their conduct or a course of conduct. 27 They provided information to Ms Sharma in relation to her options. They advised she could continue working in the secondment, with her redeployment period deemed to have commenced on 18 September 2017 and her eligibility to receive a TSP if she was unsuccessful in securing another role at PTV during it. They also advised that if she resigned from the secondment, it would be treated as normal resignation and Ms Sharma would be entitled to receive payment of any unused annual leave and long service leave. I do not consider they engaged in this conduct with the intention of bringing the employment to an end and nor do I consider termination of Ms Sharma’s employment was the probable result of their conduct such that Ms Sharma had no effective or real choice but to resign.
[39] There was no evidence from Mr Wickramasinghe to shed light on the events on 2 October 2017 but PTV was not on notice prior to the hearing that Ms Sharma’s evidence was going to be that it was Mr Wickramasinghe who told her to change the wording to reflect a resignation. Ms Sharma first gave this evidence at the hearing.
[40] I accept Ms Sharma wanted her redeployment period to commence from 18 September 2017. She consistently pursued this outcome and it was ultimately agreed to by PTV. I also note she was interested to know the circumstances in which she would be paid a TSP.
[41] However, Ms Sharma’s evidence and submissions that she resigned the secondment only, so as to return to the substantive position, are not convincing.
[42] I have concluded this because Ms Sharma was aware from 20 September 2017 that the substantive role was “surplus to requirements and no longer required to be undertaken” and the initial position of PTV was to have her redeployment period commence after the secondment had concluded. 28 Simply put, the substantive role was not there to return to. Indeed, Ms Sharma gave evidence at the hearing that, as at 2 October 2017, the substantive position was already “abolished” and the only work she had was the secondment.29
[43] Similarly I do not find Ms Sharma’s evidence that as at 2 October 2017 she “was still not 100 per cent confirmed that they're going to be terminating my redeployment” 30 convincing. Ms Sharma was advised by Ms Robertson on 2 October 2017 that if she requested, her redeployment would conclude at the end of the secondment.31
[44] I am satisfied Ms Sharma’s 2nd email to Mr Wickramasinghe, which included “As discussed on Thursday I am writing to advise you that I am resigning from my Secondment and 16th October will be my last day in the organisation…” was sent, despite her denial under cross-examination, because she had been offered a role with V/Line during the last weeks of September 2017 and was due to commence it on 17 October 2017. 32 I further note that Ms Sharma took no issue with Mr Wickramasinghe’s letter in reply dated 2 October 2017.
[45] As such, I am not persuaded Ms Sharma was dismissed because Mr Wickramasinghe engaged in a course of conduct with the intention of bringing the employment to an end and nor do I consider termination of Ms Sharma’s employment was the probable result of his conduct such that Ms Sharma had no effective or real choice but to resign. Ms Sharma had said to Ms Robertson on 28 September 2017 “I indicated to Ranabahu [Wickramasinghe] I am not looking at continuing the secondment if I loose [sic] my original position”.
[46] In reaching this conclusion I have also had regard to that fact that Ms Sharma did not seek to retract or challenge her resignation during the period between 2 October and her final day of PTV employment on 16 October 2017. Likewise, she did not seek to retract her resignation having received her final payment from PTV on 23 October 2017.
[47] At a broader level, I have had regard to the fact that there were meetings held with Ms Sharma and email correspondence in the period leading up to her resignation that had facilitated dialogue regarding her concerns, resulted in Ms Sharma being furnished with information and been accompanied by the offer of access to PTV’s Employee Assistance Program. 33
[48] I have also considered the question of whether Ms Sharma’s employment was terminated at PTV’s initiative. 34 One factor weighing against such a conclusion is the fact that as at 2 October 2017, Ms Sharma’s redeployment period had not concluded.
[49] I have nonetheless considered s.386(1)(a) in the manner articulated in Tavassoli. That is to say, judged objectively, did Ms Sharma not intend to resign her employment on 2 October 2017? I have had regard to the context in which the two emails were sent to Mr Wickramasinghe on that day. I am satisfied PTV initially intended to operate in accordance with its redeployment policy and have Ms Sharma’s redeployment period commence from the conclusion of the secondment. However, as a result of subsequent dialogue between them, PTV had acceded to the request of Ms Sharma for her redeployment period to commence from 18 September 2017.
[50] Ms Sharma had been advocating her preferred position through a series of meetings and email correspondence. The ongoing email correspondence between Ms Sharma and PTV had, by 28 September 2017, resulted in PTV agreeing to accommodate this key requirement of her. Ms Robertson outlined the position of PTV in her 11.15am 28 September 2017 email:
• Ms Sharma could request to commence the 3-month redeployment period from 18 September so that it could run concurrently with the secondment;
• Ms Sharma would be eligible for a TSP if she was unsuccessful in securing another role at PTV during the 3-month redeployment period;
• If Ms Sharma resigned from the secondment during the 3-month redeployment period, it would be treated as a normal resignation and she would receive a termination payout of any unused annual leave and LSL. 35
[51] While Ms Sharma may have expressed a different opinion in her email in reply on Monday 2 October 2017, she nonetheless acknowledged the position PTV had outlined and therefore, when she sent her first email to Mr Wickramasinghe stating she wanted to finish her secondment on 16 October 2017, I am satisfied she did so, knowing what PTV’s position was.
[52] Further, I consider Ms Sharma’s submission that she only intended to resign from her secondment is undermined by her having obtained her new job with V/Line, which she was due to commence on 17 October 2017 and her use of the words “16th October will be my last day in the organisation” in the second email to Mr Wickramasinghe.
[53] Finally, I note Ms Sharma took no issue with Mr Wickramasinghe’s return correspondence on 2 October 2017, which acknowledged her resignation and that her final day with PTV would be 16 October 2017. Ms Sharma did not challenge the assertions and directions contained therein. Therefore, in the context of the earlier discussion between Ms Sharma and Mr Wickramasinghe (referred to in Ms Sharma’s email to Ms Robertson that day regarding her intention to resign from the secondment if she lost the substantive position) I consider it is reasonable to conclude that when she sent her emails to Mr Wickramasinghe on 2 October 2017, Ms Sharma was simply acting in accordance with her previously stated intention. That is, that she would not continue in the secondment if the substantive position was no longer required by PTV.
[54] I am satisfied that, on 2 October 2017, Ms Sharma was formalising her departure from PTV ahead of commencing her new job with V/Line on 17 October 2017.
Conclusion
[55] I am not persuaded Ms Sharma’s employment was terminated on the initiative of PTV and nor am I persuaded that Ms Sharma was forced to resign because of conduct, or a course of conduct, engaged in by PTV. I am therefore satisfied that neither s.386(1)(a) nor s.386(1)(b) of the Act applies to Ms Sharma.
[56] As I have found that Ms Sharma was not dismissed from her employment with PTV within the meaning of s.386 of the Act, there is no jurisdictional basis for her to pursue her 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 her application is required or the merits of the application she has sought to pursue.
[57] Ms Sharma’s unfair dismissal application is dismissed and an order to this effect will be issued along with this decision.
DEPUTY PRESIDENT
Appearances:
Ms R Sharma on her own behalf.
Mr D Proietto for Public Transport Development Authority T/A Public Transport Victoria.
Hearing details:
2018.
Melbourne:
April 3.
Printed by authority of the Commonwealth Government Printer
<PR602127>
1 Djula v Centurion Transport Co. Pty Ltd [2015] FWCFB 2371 (unreported, Catanzariti VP, Harrison SDP, Bull C, 12 May 2015) at [28].
2 Print T2421.
3 Ibid at [14].
4 Ibid at [13].
5 Letter dated 17 June 2016, attached to the Form F3 – Employer Response to Unfair Dismissal Application.
6 Exhibit A5.
7 Exhibit A6.
8 Exhibit A8.
9 Exhibit A5.
10 Exhibit R1, Annexure TS3.
11 Ibid.
12 Exhibit A9.
13 Exhibit R1 at (32) and Exhibit A14.
14 Exhibit A9.
15 Ibid.
16 Exhibit A19.
17 Exhibit A9.
18 Exhibit A20.
19 Transcript PN 180.
20 Exhibit A21.
22 [2013] FCCA 1056 at [99].
23 [2013] FWCFB 5279 at [13]-[19].
24 [2014] FWCFB 8451 at [15].
25 [2016] FWCFB 375 at [38]-[40].
26 [2017] FWCFB 3941 at [35].
27 Section 386(1)(b) of the Fair Work Act 2009.
28 Exhibit A6.
29 Transcript PN 186.
30 Ibid.
31 Exhibit A9.
32 Transcript PN 197-203.
33 Exhibit A9.
34 Section 386(1)(a) of the Fair Work Act 2009.
35 Exhibit A9.