1
Fair Work Act 2009
s.394—Unfair dismissal
Andrew Kim
v
ORC International Pty Ltd
(U2015/13199)
DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 FEBRUARY 2016
Application for relief from unfair dismissal.
[1] Mr Andrew Kim was employed by ORC International Pty Ltd as a casual employee.
The parties are in dispute as to whether Mr Kim’s employment was terminated. The resolution
of this dispute is necessary as only employees who have been dismissed may make an unfair
dismissal application.
Permission to appear
[2] Mr Andrew Maher, a legal practitioner sought permission to appear for ORC. He
submitted that that the matter involved some complexity as the question to be determined was
whether a casual employee was constructively dismissed. It was submitted that representation
would enable the matter to be dealt with more efficiently. Further, he submitted, that the
person who would represent ORC was a witness and that would create difficulties. Mr Kim
submitted that permission should not be granted as he was representing himself as he could
not afford legal representation. He submitted that ORC was a large multinational company
with dedicated HR employees. He submitted that another senior manager, who was not a
witness, was capable of representing ORC. He submitted that the case involved a factual
dispute and it did not involve any complexity. He submitted that permitting legal
representation would only make the matter more complex. I determined to grant permission
for ORC to be represented by a lawyer. I did so because while the factual matters were not
complex, the issue of when a casual employee who is stood down is dismissed involves some
complexity and the matter would be able to be dealt with more effectively if legal
representation was permitted.
Hearing or conference
[3] I determined that the matter should proceed by way of a hearing. Mr Kim sought a
conference but that was opposed by Mr Maher. It was put that given the serious allegations
put by Mr Kim against some of the witnesses, it would be preferable if a more formal
approach was followed. Given there was no consensus about this I determined to hold a
hearing. I accept the submission that given Mr Kim’s allegations of dishonesty on the part of
[2016] FWC 1029 [Note: An appeal pursuant to s.604 (C2016/574) was
lodged against this decision and the order arising from this decision - refer
to Full Bench decision dated 6 May 2016 [[2016] FWCFB 2642] for result
of appeal.]
DECISION
E AUSTRALIA FairWork Commission
http://www.fwc.gov.au/decisionssigned/html/2016FWCFB2642.htm
https://www.fwc.gov.au/documents/awardsandorders/html/PR577119.htm
[2016] FWC 1029
2
some witnesses that a more structured hearing would enable the matter to be heard in a way
which promoted a greater distance between the participants. I did not consider that having a
hearing would cause Mr Kim any particular disadvantage.
The Background
[4] ORC employed casual employees to conduct interviews. Casual employees advise
ORC of their availability on a weekly basis. They can do this in person or by telephoning.
Casual employees are required to have a minimum level of availability each week.1 The NUW
and AMSRO Marketing and Social Research Industry Agreement 2013-2016 (the Enterprise
Agreement), which applies to this work, provides that priority for work is given to casual
employees who have worked or been available for work, on a regular and systematic basis
over the previous 12 months. ORC in allocating work has to have regard to availability, merit,
need to develop skills and length of service.
[5] Mr Kim was initially employed by ORC in May 2006. In the second half of 2014 Mr
Kim had a significant period of time off work. He had initially planned to take five weeks off
but he did not return as advised.2 Ms Maureen Lee Stewart, the Regional CATI Manger, gave
evidence that Mr Kim was absent for nearly five months and he was taken off the books.3 Mr
Kim said he did not advise ORC of his extended absence because he did not know what
procedure he needed to follow to advise ORC that he was not returning as previously advised.
Upon his return Mr Kim was put back on the books and ORC agreed to recognise his service.
[6] Mr Kim was placed in the ad hoc team but he was then not offered work for
approximately three months. His hours of work varied. For example, for two weeks in April
and June he was not offered any work. In July he was only offered eight hours work, as for
three of the weeks, there was no work available. In August he only worked for one week. Mr
Kim worked on 1 September and accepted that he did not work for the rest of the week
because there was no work available.4
The events of 1 September
[7] On 1 September 2015, Mr Kim was involved in an incident with his supervisor Ms
Tara Sariban.
[8] Mr Kim described what happened.
[9] Mr Kim asked Ms Sariban the reason why the SAPN team had been split up and
isolated. She told him it was because of the rates. Mr Kim told Ms Sariban that no one had
spoken to them about their rates and if it was an issue then they should be warned. Ms
Sariban, after some further discussion, told Mr Kim that she could seat them where she wants.
Mr Kim accepted this but told her that splitting them up was disciplinary action and
discriminatory. After further conversation Mr Kim said “quietly” “that’s f_ing immature”. Ms
Sariban asked him to repeat what he had said and he did so. Ms Sariban then left.5 After about
1 Transcript PN 65
2 Ibid PN 61- 63
3 Exhibit R6 at [15]
4 Transcript PN 98
5 Exhibit A1 at Attachment B
[2016] FWC 1029
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ten minutes Ms Sariban returned and spoke to Mr Kim whilst he was in the coding room. He
said to Ms Sariban “You walked away before I could apologize. I apologize, that was
completely out of line and not appropriate language in the workplace.” Mr Kim said Ms
Sariban accepted his apology and when he asked what she intended doing “now that you’ve
made complaints about me?” Ms Sariban told Mr Kim she did not know and then Mr Kim put
to her that she swears and Ms Sariban replied that that’s different.6
[10] Ms Sariban’s version of what occurred differed.
[11] Ms Sariban said that Mr Kim asked her who had prepared the seating plan and she said
she had. He asked her why she had made the change and she told him it was to keep the dial
rate up. In her statement made soon after the event, Ms Sariban detailed the conversation and
that accorded with Mr Kim’s description of the conversation except that Ms Sariban said Mr
Kim told her that she was being f_ing childish. When she asked him to repeat what he said,
Mr Kim said “I said it was f_ing childish.”7
[12] Ms Sariban then asked Mr Kim to come with her into the coding area. She said she
asked another supervisor Mr James Hawthorne to be a witness. She said she asked Mr Kim
and Mr Hawthorne to wait in the coding area while she got some advice about what to do. Ms
Sariban was eventually advised by Mr Edward Tax, a Senior Supervisor, that she could send
Mr Kim home if she felt it was warranted.8
[13] When she went back to speak to Mr Kim, she said Mr Hawthorne was no longer in the
coding room. Mr Kim then said to her “you didn’t give me a chance to apologise.”
[14] Mr Kim submitted that Ms Sariban’s evidence about Mr Hawthorne is “completely
false”9 because Mr Hawthorne gave evidence that he did not discuss the matter with Mr Kim
and Mr Kim would not have been aware that he was involved in the situation.10 Mr Kim
tendered an email from Mr Hawthorne in which he described being approached by Ms
Sariban who asked him to be present when she discussed the matter with Mr Kim. Mr
Hawthorne said he went into the kitchen with another employee where Mr Kim was waiting.
He said he did not speak to Mr Kim and he then left to go back to the phone room.
[15] I do not accept Mr Kim’s characterisation of Ms Sariban’s evidence. The only issue
which is not clear is whether Mr Hawthorne came into the kitchen or the coding room.
Nothing turns on this. Ms Sariban did not say that Mr Hawthorne witnessed any conversation
with Mr Kim. It is clear from her evidence that she was seeking advice from others and by the
time she returned to speak to Mr Kim, Mr Hawthorne had left.
[16] In cross examination Mr Kim put that he was having a conversation with Ms Kim as a
co-worker and that he was not aware it was her decision to separate the team members.11 I do
not accept that evidence as it was entirely inconsistent with Mr Kim’s own description of the
conversation with Ms Sariban.
6 Ibid
7 Exhibit R3 at [6]-[8]
8 Ibid at [9]
9 Exhibit A1 at [7]
10 Ibid
11 Transcript PN 213
[2016] FWC 1029
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Mr Kim’s removal from the roster
[17] From the week beginning 7 September 2015, the roster had an annotation next to Mr
Kim’s name namely no shifts until further notice.
[18] Mr Jonathon Nokes, a Senior Supervisor, gave evidence that he spoke to Mr Roland
Henkul, the Regional Technical & Operations Director, on 5 September about the incident
between Mr Kim and Ms Sariban. He said that Mr Henkul told him “not to book Andrew Kim
for any shifts in the next couple of weeks. Lee Stewart, [his] manager, was on leave and
would be back within that time.” As a result he greyed out Mr Kim’s name on the roster.12 It
was his evidence that if Mr Kim’s employment had been terminated he would have removed
him from the roster completely.
[19] Mr Henkul became aware of the incident on the day it occurred. He told Ms Sariban
that what was said was inappropriate and “could be considered aggressive behaviour so she
should have sent him home.”13 He asked Ms Sariban to document what happened which she
did and he copied Ms Sariban’s email to Ms Lydia Smith, the Human Resources Manager. A
couple of days later he spoke to Mr Edward Tax a senior supervisor and they agreed that Mr
Kim should have been sent home and that supervisors needed to be aware of this. Mr Henkul
believed his role in the matter was not needed until Ms Stewart returned. If she decided
further action was necessary then she would escalate it to Ms Smith and himself.14
[20] The next day, Mr Henkul spoke to Mr Nokes about the incident. He “mentioned to
Jonathan that [he] was surprised that Tara was not sure that she could have sent Andrew Kim
home because of his aggressive behaviour and that we needed to discuss incidents like this
more during our quarterly supervisor meeting. I also mentioned to Jonathan that we shouldn’t
tolerate behaviour like this as supervisors should not feel as they are working in an unsafe
environment. As I was walking away, I said off the cuff that we should not be offering shifts
to people who swear at our supervisors who are just trying to do their job and therefore
putting them in a position where they feel intimidated. This was certainly not intended as a
direction to Jonathan not to offer any shifts to Andrew Kim. It was not my role to do this as
there were processes in place to terminate employees for improper conduct (via HR). I do not
believe Jonathan saw my comment as any more than a casual aside.”15
[21] Unfortunately for all concerned Mr Nokes took Mr Henkel’s comment as a direction
and made the notation on the roster.
[22] Mr Kim said that Mr Henkul’s description of what occurred as aggressive
misrepresented what happened. Mr Henkul gave evidence that he told Ms Sariban that Mr
Kim’s conduct was inappropriate and “could be considered aggressive behaviour.”16 He later
in his “off the cuff” conversation with Mr Nokes referred to it as “aggressive behaviour.”17
Mr Kim admitted that his response to his supervisor when she had made a decision to split
12 Exhibit R5 at [5]
13 Exhibit R7 at [3]
14 Ibid at [7]
15 Ibid at [8]
16 Exhibit R7 at [3]
17 Exhibit R8
[2016] FWC 1029
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them up that her decision was “f_ing immature18”. Mr Kim says this is not swearing at his
supervisor. I do not agree. Had Mr Kim not intended Ms Sariban not to hear what he said
when he was asked to repeat it he could have responded differently for example he could have
said “you weren’t meant to hear that, sorry”. However he repeated the comment so that Ms
Sariban was clear what he thought. I agree that Ms Sariban did not describe his conduct as
aggressive but Ms Sariban did not doubt that Mr Kim was swearing at her.19
[23] Mr Kim was available to work in the week beginning 7 and 14 September.20 It was his
evidence that he told Ms Sarah Brown that he was available the week of 21 September. Ms
Brown did not recall Mr Kim advising her of his availability. Given Mr Kim’s clear
recollection I prefer his evidence about this. Ms Brown gave evidence that Mr Kim called her
on 13 September to ask if he had any shifts and she told him that he had no shifts for the
following week.21 Mr Kim said he asked Ms Brown if his normal project, (SAPN) was
running that week and she said it was not. Ms Brown could not recall this part of the
conversation. There is no doubt that that the roster showed that there were some SAPN shifts
that week.22 Mr Kim gave evidence that he was aware prior to making this phone call that his
name had been “greyed out” on the roster. I do not accept Mr Kim submission that Ms Brown
chose to lie for her employer. That she gave him incorrect advice is not evidence that she
deliberately lied.
[24] On 21 September Ms Brown made a file note of her conversation with Mr Kim. She
noted that at the last supervisors meeting she had brought this issue up as “no senior
supervisor or manager had spoken/written to the interviewer saying his behaviour was
unacceptable (swearing and arguing with a supervisor) and was told to say “there are no shifts
for you” with no follow up reply to why if they asked.”23
[25] Mr Kim rang Mr Nokes about his shift. He said he knew his name had been greyed out
and that SAPN had started the previous week and was still running. It was his evidence that
Mr Nokes prevaricated. Mr Kim tendered Mr Nokes’ record of the conversation as evidence
that he lied to him.
[26] Mr Nokes’ evidence of this matter is set out in his witness statement and in a file note
he made the same day. He told Mr Kim he didn’t have any shifts and there was nothing
available for him. Mr Kim asked Mr Nokes about ad hoc work and he was told there was no
work available. Mr Nokes denied telling Mr Kim that any particular job was not running or
that there was no ad hoc work. He simply told Mr Kim there was no work available for him.
Mr Nokes gave evidence that Mr Kim then spoke about the incident with Ms Sariban and told
Mr Nokes that he did not swear at Tara. Mr Kim asked Mr Nokes if he had been dismissed
and Mr Nokes told him he had not been dismissed. After some more discussion Mr Nokes
told him to talk to Ms Stewart.24
18 Exhibit A1 at Attachment B
19 Ibid at Attachment D
20 Exhibit R4
21 Exhibit R2 and transcript
22 Exhibit A1 at Attachment G
23 Ibid at Attachment H
24 Exhibit R5 at Attachment 2
[2016] FWC 1029
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[27] I do not accept Mr Kim’s submission that Mr Nokes lied to him. Mr Nokes told Mr
Kim there were no shifts for him. Mr Nokes knew at this time that the reason for that was
because he had marked the roster that Mr Kim not receive shifts until further notice. That Mr
Nokes did not tell Mr Kim why he had not got shifts is unfortunate but he did not lie to Mr
Kim.
[28] On the same day Mr Kim spoke to Ms Stewart. She is responsible for day to day
disciplinary matters. Ms Stewart was overseas on 1 September and was not involved in the
process whereby Mr Kim was removed from the roster.25 Ms Stewart was verbally advised
that an incident had occurred and she understood at the time that it had been dealt with and
did not follow it up. Also Ms Stewart did not have full access to her computer files and emails
until 17 September.26
[29] Ms Stewart was not aware until a supervisors meeting held later that week that Mr
Kim had not been spoken to about the incident. She told the supervisors that if Mr Kim rang
he was to be told he needed to speak to her or to Mr Nokes so that the incident could be
discussed. Due to the failure of Ms Brown to record Mr Kim’s availability for the week
commencing 21 September 2015 Ms Stewart did not think he was available to work that
week.
[30] Mr Kim rang Ms Stewart on 21 September. She described Mr Kim as being “insulting,
rude to [her], derisory and disrespectful, alleging [she] lied and that [she] had instructed [her]
supervisors to lie.”27 Ms Stewart told Mr Kim he had not been terminated and she asked him
to send her his version of what had happened on 1 September 2015. Ms Stewart said that Mr
Kim told her that she was not the right person to deal with the matter as she was not
“trustworthy.”28
[31] Ms Stewart prepared a file note of this conversation. In that record she notes that she
advised Mr Kim that they didn’t have any work for him and that there was very little ad hoc
work available at the moment. Mr Kim told her he was being disciplined unfairly. He asked
why he was greyed out. Ms Stewart advised Mr Kim that she had seen a report about him
swearing at a supervisor and this was unacceptable and would affect his shifts. He was told
that as a casual employee there was no guarantee or entitlement to further shifts. Mr Kim
mentioned going to Fair Work and the courts.
[32] Mr Kim admitted swearing but denied swearing at the supervisor and wanted to know
what he was alleged to have said. Ms Stewart told him that she needed to review the report.
There was discussion about the incident.
[33] When Mr Kim accused her of lying and instructing her supervisors to lie, Ms Stewart
told him that these allegations/accusations were unacceptable. Mr Kim said that Ms Sariban
was defaming him and challenged her version of events. He told her that he had been told
there were no shifts and that SAPN was not running. Ms Stewart told Mr Kim she had been
25 Exhibit R6 at [20]
26 Exhibit R6 at [20]-[22]
27 Ibid at [28]
28 Ibid at [30]
[2016] FWC 1029
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away for a month. Mr Stewart asked Mr Kim to put his concerns in writing and they would be
addressed.29
[34] Mr Kim forwarded an email the same day in which he repeated his allegations and
attached a document setting out his version of events. That document was password protected.
Ms Stewart forwarded the email to Ms Smith.
[35] Ms Stewart sent Mr Kim an email on 23 September telling him that the matter had
been escalated to HR and that they had requested that the password be provided so that the
matter can be investigated.
[36] In his email, Mr Kim said that Ms Stewart confirmed that she had banned him
indefinitely from getting shifts. He said she initially denied the existence of a ban but after Mr
Kim pointed out that his name was greyed out she told him it must have happened without her
knowledge.
[37] He said Ms Stewart stopped denying she had implemented the ban after he suggested
to her that she was claiming that her subordinates implemented this ban without her
authorisation even when she was on holidays.
[38] He said Ms Stewart claimed there was not enough work for him and denied the SAPN
interviewing had started last week. Mr Kim said she changed her story once he told her that
SAPN was on the roster and she had briefed new interviewers on the job. He told Ms Stewart
that an indefinite ban was a summary dismissal yet Ms Stewart told him that he had not been
dismissed. He said she was doing this to avoid an unfair dismissal claim. He said that Ms
Steward that instructed her subordinates to “knowingly make false statements to support [her]
strategy.”
[39] He asked for the report that Ms Sariban had provided to her and copies of the minutes
of the meeting he was alleged to have attended with Ms Sariban and another unknown
supervisor. He said if they refused to provide the documents he would commence proceedings
for unfair dismissal. He provided a copy of his version of events but it was password
protected “so that [she] cannot accuse [him] of changing [his] story once I see Tara’s version.
Similarly I don’t want my account to influence your version of the truth.”30
[40] Mr Kim did not provide the password and on 28 September 2015 he lodged an unfair
dismissal application.
[41] Ms Smith said she asked Ms Stewart to obtain the password and she organised a
meeting with Ms Stewart and Mr Henkul the next day to discuss the matter. Ms Smith gave
evidence that she could not investigate the matter until she was given the password so that she
had Mr Kim’s version of events. She said any dismissal had to be approved by her and no
approval was sought to dismiss Mr Kim. On 6 November 2015 she sent Mr Kim a letter
asking for him to contact her to arrange a suitable meeting time.31
29 Exhibit A1 at Attachment J
30 Ibid at Attachment A
31 Exhibit R4 [5]-[8]
[2016] FWC 1029
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Submissions
[42] Mr Kim’s primary submission was that the decision to remove him from the roster was
a dismissal. He submitted that this action was evidence that ORC intended to bring the
relationship to an end.32 Mr Kim submitted that ORC had repudiated his contract of
employment when it failed to offer him employment.33 He said that he was dismissed on 1
September, which was his last rostered shift.
[43] Mr Kim submitted that because he was not told that he was not being offered shifts
and because ORC did not tell him when this would come to an end he had been dismissed.34
Mr Kim in oral submissions submitted that he had been dismissed on 4 September or there
abouts when the decision was taken to not offer him shifts until the matter was resolved.35
[44] Alternatively he submitted that he resigned his employment on 27 September 2015
when he stopped giving availability and his resignation was due to the conduct of his
employer.36 He said was treated with bad faith.37The bad faith was exhibited by Ms Brown,
Mr Nokes38 and ORC’s failure to tell him what was happening.39 Mr Kim submitted that ORC
was acting dishonestly.40
[45] ORC submitted that up to the date of his unfair dismissal application Mr Kim was told
that he had not been dismissed. This was confirmed by Ms Smith on 6 November 2015. It
acknowledged that Ms Stewart’s absence on annual leave until mid-September had prevented
this matter being resolved in a more expeditious and straightforward manner and may have
led to confusion on the part of Mr Kim about what was happening.41
[46] It submitted that its failure to offer Mr Kim shifts for two weeks when little or no ad
hoc work was available did not constitute the termination of Mr Kim’s employment.42 It said
that Mr Kim had recently experienced extended periods of no work being offered to him. It
submitted that Mr Kim had not submitted availability since 10 September 2015 and he was
not eligible to receive shifts. If his employment ended on 22 September it was voluntarily
terminated on his own initiative.
Consideration
[47] It is difficult to see how this common law concept of repudiation has any work to do in
relation to casual employees. At common law a casual employee’s contract of employment
ceases at the end of each engagement. An employer of a casual employee does not repudiate
that contract when it fails to offer another shift.
32 Exhibit A2 at [17]
33 Ibid at [38]
34 Transcript PN 912-914 and PN 968-969
35 Ibid PN 936-946
36 Ibid at [28]
37 Transcript PN 991
38 Ibid PN 995-996
39 Ibid PN 1046
40 Ibid PN 1056
41 Submissions of the Respondent at [30]-[32]
42 Exhibit A2 at [33]
[2016] FWC 1029
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[48] In any event my task is not to determine if ORC repudiated Mr Kim’s contract of
employment. I am required to determine if Mr Kim’s employment has been terminated at the
employer’s initiative or if Mr Kim resigned whether he was forced to resign because of
conduct or a course of conduct engaged in by ORC.
[49] It is often difficult to determine when a casual employee’s employment is in fact
terminated. For example has a casual employee who has regularly worked four shifts a week
who is then offered one shift a fortnight been dismissed? In this case is an employee, who has
been taken off the roster, pending the resolution of a disciplinary matter, been dismissed?
Was Mr Kim’s employment terminated on 1 September or 5 September 2015?
[50] There is no evidence on which I could find that ORC made a decision on 1 September
2015 or on or about 5 September 2015 to dismiss Mr Kim. At best, the evidence suggests that
by 5 September Mr Nokes formed the view that he had been instructed not to offer Mr Kim
any shifts until Ms Stewart returned to work in a couple of weeks. While the standing down of
a casual employee without notice to them may in some circumstances constitute a summary
dismissal, in this case I find it was not. One because the evidence established that no decision
was in fact made to permanently remove Mr Kim from the roster. I accept that there was a
misunderstanding between Mr Nokes and Mr Henkul about his temporary removal. Mr Nokes
action was only ever intended to be temporary until Ms Stewart’s returned and investigated
the matter.
[51] Further I accept the submission of ORC that not offering Mr Kim work for two to
three weeks was not inconsistent with Mr Kim’s work pattern. Mr Kim accepted that he was
able to not make himself available for work for considerable periods of time without notice to
his employer without ending the employment relationship. When he had again made himself
available for work there was a three month period when he was offered no work. In the month
before the incident he had four weeks when there was no work offered. While I accept that in
this case work was not offered because of Mr Nokes’ notation on the roster, this does not alter
my conclusion. ORC were obliged to offer work to employees on the basis of the criteria set
out in the Enterprise Agreement. As Mr Kim had not worked on a regular and systematic
basis for the previous 12 months other employees had priority over him. Further there was no
evidence on which I could conclude that but for the notation on the roster Mr Kim would
necessarily been offered work in this period.
[52] I accept Mr Kim’s submission that he should have been told what was happening.
While I accept that Ms Stewart’s absence complicated matters, it is not reasonable for Mr
Nokes to make the notation on the roster that Mr Kim was not to be offered shifts until further
notice without Mr Kim being advised of that decision. While ORC’s procedures were
inadequate this does not mean that Mr Kim was dismissed.
[2016] FWC 1029
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Was ORC’s conduct such that Mr Kim had no choice but to resign?
[53] In Kylie Bruce v Fingal Glen Pty Ltd (in liq)43 the Full Bench said:
[13] The test of constructive dismissal in the context of the unlawful termination
provisions of the Industrial Relations Act 1998 was considered by the Full Court of the
Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd
(No 2) (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v
Huxley Marketing Pty Ltd (Rheinberger). The commonly quoted statement of
principle in Mohazab is that:
“In these proceedings it is unnecessary and undesirable to endeavour to
formulate an exhaustive description of what is termination at the initiative of
the employer but plainly an important feature 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”.
[14] It is important that this passage be read in the context of the judgment as a
whole. It is clear that the requirements set out by the Full Court in the passage quoted
are necessary, but not sufficient, to establish that employer action constitutes
constructive dismissal.
[15] These principles of constructive dismissal have been applied to the unfair
dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the
Australian Industrial Relations Commission in Pawel v Advanced Precast Pty
Ltd (Pawel) and ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering),
and we accept the Applicant’s submission that those decisions are relevant to any
consideration of s.386(1)(b) of the Act.
[16] In Pawel the Full Bench said that:
“[13] It is plain that the Full Court in Mohazab considered that an important
feature in the question of whether termination is at the initiative of the
employer is whether the act of an employer results directly or consequentially
in the termination of the employment and that the employment relationship is
not voluntarily left by the employee. However, it is to be noted that the Full
Court described it as an important feature. It plainly cannot be the only feature.
An example will serve to illustrate this point. Suppose an employee wants a
pay rise and makes such a request of his or her employer. If the employer
declines and the employee, feeling dissatisfied resigns, can the resignation be
said to be a termination at the initiative of the employer? We do not think it can
and yet it can be said that the act of the employer i.e. refusing the pay rise, has
at least consequentially resulted in the termination of the employment. This
situation may be contrasted with the position where an employee is told to
43 [2013] FWCFB 5279
[2016] FWC 1029
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resign or he or she will be terminated. We think that all of the circumstances
and not only the act of the employer must be examined. These in our view, will
include the circumstances giving rise to the termination, the seriousness of the
issues involved and the respective conduct of the employer and the
employee...”
[17] In ABB Engineering, the Full Bench said that:
“Where it is the immediate action of the employee that causes the employment
relationship to cease, it is necessary to ensure that the employer’s conduct, said
to have been the principal contributing factor in the resultant termination of
employment, is weighed objectively. The employer’s conduct may be shown to
be a sufficiently operative factor in the resignation for it to be tantamount to a
reason for dismissal. In such circumstances, a resignation may fairly readily be
conceived to be a termination at the initiative of the employer. The validity of
any associated reason for the termination by resignation is tested. Where the
conduct of the employer is ambiguous, and the bearing it has on the decision to
resign is based largely on the perceptions and subjective response of the
employee made unilaterally, considerable caution should be exercised in
treating the resignation as other than voluntary.”
[18] The four authorities cited above were summarised by a Full Bench of the
AIRC in O’Meara v Stanley Works Pty Ltd (O’Meara) as follows:
“[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... 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.” 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.”
[19] Subject to the comments below, we accept and adopt this as a summary of the
principles applicable in determining whether an employee has been forced to resign
because of the conduct of the employer within the meaning of s.386(1)(b) of the Act.
[54] It went on to say:
[22] In relation to whether on “an objective analysis of the employer’s conduct” the
late payment of wages and failure to pay superannuation “was of such a nature that
resignation was the probable result”, we note that the Full Bench in O’Meara was
drawing from Rheinberger. In that case Justice Moore said that:
[2016] FWC 1029
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“However it is plain from these passages [in Mohazab] that it is not sufficient
to demonstrate that the employee did not voluntarily leave his or her
employment to establish that there had been a termination of the employment
at the initiative of the employer. Such a termination must result from some
action on the part of the employer intended to bring the employment to an end
and perhaps action which would, on any reasonable view, probably have that
effect. I leave open the question of whether a termination of employment at the
initiative of the employer requires the employer to intend by its action that the
employment will conclude. I am prepared to assume, for present purposes, that
there can be a termination at the initiative of the employer if the cessation of
the employment relationship is the probable result of the employer’s conduct”.
[23] The situation contemplated in this passage is one in which the act of an
employer which led to an employee’s resignation was not intended to cause an
employee’s resignation (as was the case in Mohazab), but “would, on any reasonable
view, probably have that effect”. Rheinberger therefore qualifies the passage from
Mohazab quoted above in two respects. First, an employer may be found to have
constructively dismissed an employee notwithstanding that it did not engage in the
relevant conduct with the subjective intention of forcing the employee to resign.
Secondly, although it is an “important feature” of constructive dismissal, it is not
sufficient that “the act of the employer results directly or consequentially in the
termination of the employment and the employment relationship is not voluntarily left
by the employee”. There must also be either an intention to force an employee to
resign, or else the conduct must be of such a nature that resignation was the probable
result. The “limb” of the O’Meara test relating to resignation as a probable result of an
employer’s conduct should be read in this light.
[24] In the circumstances of the present case, resignation was a possible and
foreseeable result of the Respondent’s conduct, and in many respects a reasonable
response in the circumstances. However this is not itself sufficient to demonstrate that
the Applicant’s resignation was in effect a dismissal. Given the other avenues
available to the Applicant to pursue her complaints, and taking into account the nature
of the Respondent’s conduct, we do not consider that the Applicant’s resignation was
objectively the probable result of the Respondent’s conduct, and therefore that the
Applicant was forced to resign because of that conduct. In this regard, we note that
although there were delays in the payment of wages, the delays were short and the
Applicant was paid her wages in full, and that the Applicant did not take any further
steps to pursue her complaints other than raising them with the Respondent.
[55] In Victorian Association for the Teaching of English Inc v Debra de Laps44 the Full
Bench made the following observation are reviewing the case law:
“[35] Having regard to the terms of s.386(1)(b) of the FW Act, the Explanatory
Memorandum in respect of s.386(1)(b), its predecessor in the amended WR Act and
the decisions in respect of the common law doctrine of “constructive dismissal”, there
may be some question as to whether all of the dicta in the case law to which the Full
Bench in Fingal Glen refers are applicable to s.386(1)(b) or whether s.386(1)(b) is
44 [2014] FWCFB 613
[2016] FWC 1029
13
narrower than some of that dicta. However, for reasons which will become apparent,
we do not need to determine that issue in this matter.”
[56] Mr Kim submitted that the failure to offer him shifts; the conduct of Ms Brown, Mr
Nokes, Ms Stewart and Mr Henkul; the failure of ORC to follow its own procedures; and its
failure to back down when he gave them that opportunity meant he had no choice but to
resign.
[57] When Mr Kim decided to no longer make himself available for work and hence
resigned his employment, he was aware that he was not offered shifts because of the incident
with Mr Sariban. He was told that Ms Stewart had not made any decision to remove him from
the roster as she had been on leave. He had been asked to provide his version of events. He
had been told that the matter would be investigated. He was told that he had not been
dismissed. Whatever misunderstandings had occurred up to this time, the situation was
clarified in the conversation between him and Ms Stewart. Unfortunately Mr Kim did not
believe Ms Stewart. However his belief that Ms Stewart was lying to him is not sufficient for
a finding that he had no choice but to resign.
[58] I accept that Mr Kim was frustrated at what he saw as a deliberate attempt to obscure
what was going on but he in fact misunderstood what had happened. I do not accept his
contention that Ms Brown, Mr Nokes or Ms Stewart lied to him. It is unfortunate that when he
spoke to Ms Stewart he did not accept her explanation that she had been away whilst this was
occurring. His belief that she was not telling him the truth was without foundation. Allowing
for the obvious fact that people recall conversations in different ways I accept Ms Stewart’s
version of the telephone conversation on the matters I need to determine.
[59] Mr Kim’s recollection of the conversation was coloured by his belief that he was being
lied to. However, at the hearing, having seen ORC’s evidence in particular Mr Henkel’s
statement, Mr Kim accepted that Ms Stewart was not involved in the decision not to offer
him shifts and that she did not instruct her staff to lie to or mislead him. 45 Mr Kim has
acknowledged the inaccuracy of his recollection of what was said. He accepts that Ms Stewart
did not tell him that he had been banned indefinitely.46
[60] Further while Ms Stewart made a note of the conversation including what was said Mr
Kim did not. What he wrote was a continuation of his accusations against Ms Stewart rather
than a record of what was said. I prefer Ms Stewart’s version.
[61] I accept that she told Mr Kim that he had not been dismissed but that his lack of shifts
was related to the incident with Ms Sariban and that she would escalate the matter.
[62] I am unable to find that Mr Kim had no choice but to resign because he had not been
offered shifts for three weeks. It was not uncommon for that to happen.
[63] I do not accept Mr Kim’s submission that Ms Stewart, Ms Brown and Mr Nokes lied
to him or were instructed to lie to him. While I accept that Mr Henkul’s description of Mr
Kim’s comment to Ms Sariban as aggressive was not accurate I do not consider this is critical.
Even had he not described it as aggressive he formed the view that the comment was
45 Transcript PN 815-817
46 Ibid PN 222-225
[2016] FWC 1029
14
inappropriate and so much was accepted by Mr Kim.47 Unfortunately Mr Kim seemed to be of
the view that if he apologised that was the end of the matter. An apology does not excuse
inappropriate conduct.
[64] Mr Kim’s view that Ms Stewart, Ms Brown and Mr Nokes acted in bad faith is not
supported by the evidence. His view that ORC would not provide him with a fair hearing was
also without foundation.
[65] Further Mr Kim was told on 21 September 2015 that he had not been dismissed. I am
unable to conclude that ORC’s failure to offer Mr Kim shifts was intended to cause him to
resign and I am unable to find that, independent of its intention, the failure to offer him shifts
pending the investigation was of such a nature that resignation was the probable result. Mr
Kim had other options. He could have provided his password. He could have escalated his
dispute to Ms Stewart’s supervisor or above. The Enterprise Agreement which regulated the
allocation or work to casual employees, contained a dispute resolution procedure which Mr
Kim could have activated. None of these alternatives would have prejudiced Mr Kim’s right
to bring an unfair dismissal proceeding if ORC either failed to respond or continued to not
offer him shifts.
[66] I therefore find that Mr Kim did not resign his employment because of conduct or a
course of conduct engaged in by ORC.
[67] As I have found Mr Kim was not dismissed, his application for an unfair dismissal
remedy must be dismissed and an order to that effect will issue with this decision.
DEPUTY PRESIDENT
Appearances:
A Kim on his own behalf.
A Maher on behalf of the Respondent.
Hearing details:
2016.
Melbourne:
29 January.
Printed by authority of the Commonwealth Government Printer
Price code C, PR577116
47 Exhibit A1 at Attachment B
FAIR WORK COMMISSION AUSTRALIA THESEAL OF
