Download Word Document


Workplace Relations Act 1996
s.120 appeal Bench against the certificate issued by
Commissioner Raffaelli on 15 May 2006.

P. O’Meara

s.170CE application for relief in respect of termination of employment

P. O’Meara


Stanley Works Pty Ltd







Application for a remedy in relation to termination of employment – certificate issued – no reasonable prospect of success – whether decision to issue certificate affected by error – whether termination at the initiative of the employer – Workplace Relations Act 1996 ss45,170CE and 170CF .



[1] This is an appeal, for which leave is required, by Paul O’Meara (the appellant) against a certificate issued by Commissioner Raffaelli on 15 May 2006 under s.170CF(4) of the Workplace Relations Act 1996 (the Act). The appellant had applied pursuant to s.170CE of the Act for relief in relation to the termination of his employment. The certificate stated that the application had no reasonable prospect of success at arbitration. The statutory effect of such a certificate is that the application is dismissed.

[2] By force of reg.4.3 and reg.4.11 of Chapter 7, Part 4 of the Workplace Relations Regulations 2006 the appeals are to be determined pursuant to the provisions of the Act as in force prior to the coming into operation of the Workplace Relations Amendment (Work Choices) Act 2005.

[3] The appeals concern the operation of s.170CF of the Act. Section 170CF is as follows:

[4] The appellant was employed by Stanley Works Pty Ltd (the employer) from 10 August 2000 until the termination of his employment in February 2006. He lodged an application for relief in relation to the termination on 25 February 2006. At a conciliation conference convened by the Commission on 10 April 2006 Commissioner Raffaelli indicated that he considered that the application had no reasonable prospect of success at arbitration. He subsequently wrote to the parties to inform them of this view and invited the appellant to provide further information in support of the application under s.170CF(3) of the Act. The appellant’s solicitors responded to the Commissioner by letter dated 13 April 2006. They indicated on behalf of their client that they saw no reason to provide further information, but nevertheless took the opportunity to re-state and clarify the submissions that had already been put to the Commission in the conciliation conference.

[5] Counsel for the employer objected to us having regard to the letter from the appellant’s solicitor dated 13 April 2006. The objection was based principally on the terms of s.104(5) of the Act. We decided to admit the letter. While it referred to what had transpired in conciliation we concluded that s.104(5) does not apply to these proceedings. Furthermore the letter was furnished in response to a request from the Commission pursuant to s.170CF(3). Without having regard to the contents of the letter it would be practically impossible to give proper consideration to the appeal. While it is important to protect the privilege which is traditionally accorded to what is said and done in conciliation, the conclusion we reached was dictated by the terms of the legislation and the circumstances.

[6] On 15 May 2006 the Commissioner issued a certificate in the following terms:

[7] No party made an application to the Commissioner for reasons to be issued pursuant to Rule 46 of the Australian Industrial Relations Commission Rules 1998.

[8] The grounds of appeal are expressed as follows:


[9] On 6 February 2006 the appellant sent a letter to the employer’s warehouse manager in the following terms:

[10] On its face the letter indicates that the appellant resigned his employment. The appellant’s position, however, is that the termination of employment was a constructive dismissal by the employer. The basis for that contention, as explained in the appellant’s solicitors’ letter of 13 April 2006, was that the employer “had repeatedly breached its duty to provide a safe workplace” for the appellant and that the employer’s “negligence with respect to its OH&S obligations:

[11] It was further contended that the employer’s conduct “was so serious that it amounted to a repudiation of the employment contract, which ultimately caused the applicant to cease his employment.” 4

[12] The letter recorded the position taken by the employer in the conciliation conference as follows:

[13] The letter also contained an allegation that the Commissioner had erred in reaching the view that all reasonable attempts to settle the matter by conciliation were, or were unlikely to be, successful.

[14] Although there is no specific indication of the Commissioner’s reasons for reaching the conclusion expressed in the certificate, it seems clear enough that the Commissioner formed the view that the appellant would not be able to establish that the termination of his employment was at the initiative of the employer. A termination of employment which is not at the initiative of the employer does not give rise to a remedy under s.170CE of the Act.

The relevant appeal principles

[15] The principles to be applied in relation to the issue of a certificate under s.170CF(4) are discussed at considerable length in the Full Bench decision of Wright v Australian Customs Service 6 (Wright). Those principles were recently applied by this Full Bench in Dauer & Herra v Australian Future Communications.7

[16] As we have indicated, although the Commissioner did not give reasons for his conclusion it is clear enough that he took the view that if the application went to arbitration the appellant would not be able to establish that his employment was terminated at the initiative of the employer. In that case the application was bound to fail.
[17] Whether there is a termination at the initiative of the employer is a jurisdictional fact. Equally a conclusion under s.170CF(4) that an application has no reasonable prospect of success involves the exercise of a discretion. In this regard we adopt, with respect, the following passage from the joint judgment of Gleeson CJ, Gaudron and Hayne JJ in Coal and Allied Operations v AIRC 8:

[18] Because this is an appeal from a discretionary decision it follows that it is to be dealt with in accordance with the principles outlined in House v R10 According to those principles an appeal can only succeed if the decision is affected by error in the relevant sense. As noted in Wright, the assessment under s.170CF(4) is based in substance on the case alleged by the applicant. Necessarily, that assessment is made without the benefit of a full hearing and in particular without sworn evidence or findings on contested issues. Nevertheless, both the applicant and the respondent have a responsibility to put forward the basis of their respective cases in conciliation. The employee also has the opportunity to put additional information to an invitation under s.170CF(3). For the employer the role will primarily be performed at the conciliation conference.

Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd 11 (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited 13 (Rheinberger). His Honour said, after referring to extracts from Mohazab:

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd 15 (Pawel) a Full Bench said:

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit 17 (ABB Engineering) it was said:

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 19 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.

The merits of the appeal

[24] In this case the appellant wrote a letter on NUW letterhead resigning from his employment. It is not a situation of a ‘heat of the moment’ reaction, but rather one that appears to have been taken at least with the opportunity of obtaining advice. The letter referred to a long-standing concern that management did not take health seriously, drew attention to injuries which had been sustained and indicated that his apprehension of further injury had led to his resignation. The letter went on to state that there were certain people who were dangerous and should be cautioned and that the appellant had no alternative but to resign.

[25] The Commissioner indicated a preliminary view that the appellant had resigned voluntarily. He then provided the appellant, in accordance with the legislative requirement, with an opportunity to produce information which might persuade the Commissioner that his preliminary view was wrong. The response did not greatly assist the appellant’s case. The appellant questioned whether there was any reason to provide further information, contended that no reasonable attempt had been made to settle the matter by conciliation, and re-stated matters raised at the conciliation conference. Neither in the letter of 13 April 2006 nor elsewhere did the appellant provide information or allegations which tended to indicate that the resignation was other than voluntary. No specific allegations about the employer’s conduct in relation to occupational health and safety were made, apart from the earlier reference to an unspecified assault by a supervisor. Nor was it indicated how the relevant connection between the employer’s alleged attitude to health and safety and the employee’s resignation was to be established. It is relevant in this regard that the appellant was represented by legal practitioners. When faced with the Commissioner’s indication of a preliminary view adverse to his prospects of success and given an opportunity to provide further material, the appellant was clearly on notice that more material was needed. The fact that it was not forthcoming is significant.

[26] Taking all of the material of which we are aware into account we think it was open to the Commissioner to conclude that there was no reasonable prospect of the appellant succeeding in demonstrating that the employer’s conduct was of such a character.

[27] We have considered all of the grounds of appeal. None of them discloses any appealable error. Apart from what we have already said it is only necessary to comment on the other primary ground, namely: the ground which alleges that the Commissioner erred by failing to make any or any reasonable attempt to settle the matter by conciliation and, or in the alternative, by hindering the prospect of successful conciliation. We have set out the terms of s.170CF(1) and (2) earlier. Section 170CF(1) relevantly requires the Commission to attempt to settle the application by conciliation. Section 170CF(2) requires the Commission to issue a certificate if it is “satisfied” that “all reasonable attempts to settle the matter by conciliation are, or are likely to be, unsuccessful.” It is clear that these provisions leave a great deal to the judgment of the member of the Commission to whom the matter is allocated for conciliation. Unless there is some patent failure on the part of the member to exercise the discretion appropriately, an appeal bench would be reluctant to disturb a conclusion that conciliation or further conciliation would be unlikely to resolve the matter. It would clearly be contrary to the public interest and potentially wasteful of resources if conclusions of this kind were liable to be set aside on appeal without good grounds for doing so. Members of the Commission should not be discouraged from exercising their judgment in an efficient and timely manner by an apprehension of close scrutiny at the appellate level. It is sufficient if we indicate that in this case no good grounds were advanced.

[28] The appellant has not established that the Commissioner erred in concluding that the case had no reasonable prospect of success at arbitration. Because the appeal raised issues relating to the application of s.170CF(4) we grant leave to appeal, but, for the reasons given, we dismiss the appeal.




P. Wheelahan for the appellant.
G. McKeown for Stanley Works Pty Ltd.

Hearing details:

July 18.

 1   Notice of appeal.

 2   Exhibit W3.

 3   Exhibit W1 at pages 2-3.

 4   Ibid at page 3.

 5   Ibid.

 6   PR926115 at paragraphs 29-34.

 7   PR973461.

 8   174 ALR 585 at 591.

 9   Ibid at paragraph 19.

 10   (1936) 55 CLR 499.

 11   (1995) 62 IR 200.

 12   Ibid at 205-6.

 13   (1966) 67 IR 154.

 14   Ibid at 160-1.

 15   Print S5904, 12 May 2000 per Polites SDP, Watson SDP and Gay C.

 16   Ibid at paragraph 13.

 17   Print N6999, 9 December 1996 per Munro J, Duncan DP and Merriman C; quoted with approval in BC Stubbs v Austar Entertainment Pty Ltd, Print Q0008, 17 December 1998 per Ross VP, Munro J and Harrison C and in Mosey v Australian Customs Service (2002) 116 IR 1.

 18   Ibid at page 12.

 19   Mohazab at page 205.

Printed by authority of the Commonwealth Government Printer

<Price code C>