1
Fair Work Act 2009
s.604—Appeal of decision
Bupa Aged Care Australia Pty Ltd T/A BUPA
v
Shahin Tavassoli
(C2018/1404)
VICE PRESIDENT CATANZARITI
DEPUTY PRESIDENT COLMAN
COMMISSIONER BISSETT
BRISBANE, 9 MAY 2018
Appeal against decision [2018] FWC 1074 of Commissioner Cambridge at Sydney on 9
March 2018 in matter number C2017/4000 - no public interest – permission to appeal
refused.
Catanzariti VP and Bissett C
[1] On 10 October 2017, a Full Bench of the Fair Work Commission (Commission)
upheld an appeal1 against a decision2 of Commissioner Riordan. The Full Bench determined
that the Commissioner had erred by finding that Mrs Tavasssoli had been “constructively
dismissed” under s.386(1)(b) of the Fair Work Act 2009 (Cth) (Act). In making that finding,
the Full Bench concluded that the Commissioner had decided a case “that was not argued”
and therefore, as a matter of procedural fairness, the question of whether Mrs Tavassoli had
been dismissed under s.386(1)(a) of the Act was referred to a single Member of the
Commission for rehearing.3
[2] On 18 January 2018, Commissioner Cambridge reheard the matter and on 9 March
2018 the Commissioner issued a Decision4 in which he found that Mrs Tavassoli had been
dismissed on the employer’s initiative within the meaning of “dismissed” provided by
s.386(1)(a) of the Act. That Decision is the subject of this appeal.
[3] On 3 April 2018, we heard the parties on whether permission to appeal is to be
granted. Mr Jamie Darams, of Counsel, sought permission to appear for Bupa Aged Care
(Appellant), and Mr Chris McArdle sought permission to appear for Ms Shahin Tavassoli
(Respondent). In accordance with s.596(2)(a) of the Act, we granted permission to appear for
both parties.
1 [2017] FWCFB 3941.
2 [2017] FWC 3200.
3 [2017] FWCFB 3941 at [54]-[57].
4 [2018] FWC 1074.
[2018] FWCFB 2607
DECISION
E AUSTRALIA FairWork Commission
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[4] For the reasons set out below, we have decided to refuse permission to appeal. We are
not satisfied that the Appellant has raised any matters before the Commission which enliven
the public interest under s.400(1) of the Act.
The Decision on Appeal
[5] At the rehearing, Commissioner Cambridge noted that the parties did not seek to
introduce further evidence and instead sought to rely upon evidence that was adduced before
Commissioner Riordan at first instance. As such, the factual circumstances of the
Respondent’s termination were not a contested issue at the rehearing. Accordingly, the
relevant facts were outlined as follows:
“[10] In this case, the applicant provided a written resignation on Wednesday, 16
November 2016. A copy of the resignation was Attachment “DB-11”1 to the witness
statement of Daniel Brice. The applicant wrote the initial version of the resignation
letter while she was waiting to be called into a disciplinary meeting with Mr Brice.
The resignation letter was later amended during the meeting with Mr Brice. The
resignation letter was amended from providing one month’s notice to having
immediate effect.
[11] The meeting on 16 November 2016, during which the applicant resubmitted and
then subsequently amended her resignation letter, was attended by three people; the
applicant, Mr Bryce, and Ms Miriam Lyman. The applicant was upset and emotional
to the point of crying during the meeting on 16 November which Ms Lyman described
as “a confronting meeting.”
[12] On the following day, Thursday, 17 November 2016, Mr Brice sent the applicant
a letter that was incorrectly dated 17 October 2016, which relevantly advised of the
confirmation of the resignation provided by the applicant on the previous day, and
which was said to have been effective from that day, 16 November 2016.
[13] At approximately 9 am on the following day, Friday, 18 November 2016, the
applicant attended the employer’s premises for the purposes of seeking to withdraw
her resignation. Mr Brice rejected the applicants attempted withdrawal of her
resignation. Mr Brice advised the applicant that he had accepted her resignation
provided by her on 16 November, and that she was no longer an employee of Bupa.”
[6] Before proceeding to examine the circumstances of the termination, the Commissioner
had regard to the guidance provided by the Full Bench in determining whether s.386(1)(a) has
been satisfied:
“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
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time that the employee genuinely intended to resign, this may be characterised as a
termination of the employment at the initiative of the employer.”5
[7] On that basis, the Commissioner considered if the “written resignation [provided] on
16 November 2016, and the subsequent attempt to withdraw that resignation, on 18
November,” was “legally effective” so that it had validly operated to terminate the
employment.6 Alternatively, the Commissioner considered if “special circumstances and other
factors” operated so that it was “unreasonable for [the Appellant] to have assumed the
resignation was genuinely intended, and by accepting it, and further acting upon it, [the
Appellant] terminated the [Respondent’s] employment on its initiative.”7
[8] In considering those matters, the Commissioner made the following findings:
The Respondent provided the initial version of her resignation to Mr Brice about an
hour before the disciplinary meeting was anticipated to commence on 16 November
2016. The Respondent had written the words “Time 3.pm” on the top of the
resignation letter which was addressed, “To whom this may cocern. [sic]” Mr Brice
scanned the letter, and then he handed it back to the Respondent, and told her that he
was not accepting the resignation.8
In the meeting with Mr Brice on 16 November 2016, the Respondent became
“visibly and understandably upset by the allegations” that had been put against her.9
The Respondent “was crying although not hysterical”, however, “strangely Mr Brice
said that; [a]t no stage during the meeting was Ms Tavassoli tearful or upset.”10
“Mr Brice had a very different recollection to Ms Lyman of the emotional state of
the [Respondent] during the meeting. It is difficult to comprehend how Mr Brice
could have failed to notice that the [Respondent] was crying during the meeting. Mr
Brice clearly failed to appreciate the level of emotional distress that the applicant
was experiencing during the meeting on 16 November 2016.”11
“…when the [Respondent] persisted with her apparent intention to resign, Mr Brice
significantly misjudged the mental state of the [Respondent] and he failed to
recognise that the [Respondent] was acting irrationally as a result of her disturbed
state of mind. In the circumstances, the resignation that was amended and
resubmitted by the applicant was not given freely, deliberately and as a result of any
reasoned deliberation.”12
“The level of confusion of the [Respondent] was reflected by her writing the wrong
day of the week on the resignation letter. Further, the irrationality of the
[Respondent’s] behaviour was reflected in her impulsive preparedness to resign with
5 Decision at [9], citing [2017] FWCFB 3941 at [47].
6 Decision at [44].
7 Ibid.
8 Decision at [45].
9 Decision at [46].
10 Ibid.
11 Decision at [47].
12 Decision at [48].
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immediate effect, and that decision was conveyed by her scribbling out that part of
the resignation letter which contained words indicating that she was providing one
month’s notice. Frankly, when all of the circumstances of the meeting of 16
November are carefully examined there would seem to have been every prospect that
if Mr Brice had suggested that the [Respondent] pay to Bupa some amount of money
in respect to a notice period, she probably would have agreed to do so. Such was the
level of her irrational behaviour at that time.”13
“…the [Respondent] was exhibiting irrational behaviour and that irrational
behaviour was not appreciated or considered by Mr Brice when he immediately
accepted the [Respondent’s] resignation as being effective today.”14
“…the irrational behaviour of the applicant can, in part, be attributed to ethnic and
cultural factors, associated with the shame that allegations which she thought
involved theft would bring upon her.”15
[9] Having made those findings, the Commissioner determined that the resignation of the
Respondent “should not have been accepted… [p]articularly when one has regard for the
[Respondent’s] lack of English language skills and certain ethnic and cultural factors.”16 As a
result, the Commissioner concluded that “special circumstances existed such that the
resignation of the applicant was legally ineffective”, and therefore, the dismissal was effected
on the employer’s initiative in satisfaction of s.386(1)(a) of the Act.
The Appeal
[10] At the heart of the appeal is whether the Commissioner, in finding that special
circumstances existed such that the resignation of the applicant was legally ineffective,
correctly determined that the Respondent had been dismissed pursuant to s.386(1)(a) of the
Act.
[11] The Appellant submitted that the Commissioner did not carry out, or properly carry
out, the task that was referred by the Full Bench. The Appellant advanced that the salient
question before the Commissioner was whether the Respondent was dismissed on the
employer’s initiative under s.386(1)(a). For the purposes of that determination, the Full Bench
had identified that a dismissal of that kind may be found, in circumstances where an
employee’s resignation was not legally effective because the employee could not be
reasonably understood to be conveying a real intention to resign.17 The Appellant submitted
that the 16 November 2016 resignation letter, had to be objectively determined as to whether
the Respondent was conveying a real intention to resign.18 The Appellant asserted that the
Commissioner did not fulfil that task. The Commissioner had applied an “alternative test”
which considered whether it was reasonable for the Appellant to assume the resignation was
genuinely intended.
13 Decision at [49].
14 Decision at [51].
15 Decision at [50].
16 Decision at [52].
17 (2017) 271 IR 245, at 268.
18 (2017) 271 IR 245, at 270-271; Decision at [44].
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[12] Alternatively, the Appellant submitted that even if the proper test was applied, the
finding that the Respondent was dismissed was an unreasonable one. The Appellant submitted
that, objectively viewed, the Respondent did intend to resign for the following reasons:
the letter of resignation which used the words resignation is clear and unequivocal;
the Respondent was actively thinking about her position of employment at the time
of preparing the resignation letter;
the Respondent said she understood the allegations that had been put against her, and
that she had not asked for further clarification;
the Respondent, despite being told that she would have a chance to defend the
allegations, persisted with her desire to resign.
the Respondent wanted to leave the employment immediately so that she did not
have to attend the investigation meeting on 21 November 2016; and
the Respondent acknowledged that she had in fact resigned on 16 November 2016,
because she had advised the Appellant that she wanted to withdraw her resignation
when she attended the Appellant’s premises on 18 November 2016.
[13] Moreover, the Appellant submitted that it was “simply not open on the evidence” for
the Commissioner to find that the Respondent’s decision to resign was irrational. The
Appellant contended that “[a]ll of the evidence demonstrates, objectively viewed, rational and
deliberate thought processes being undertaken by the Respondent on 16 November 2016”.
The correct and proper decision is that the Respondent was not dismissed and that that
resignation be treated as valid and effective.
[14] The Appellant further submitted, the Decision of Commissioner Cambridge “manifests
an obvious injustice” to the Appellant, because there was no evidence before the
Commissioner to find that the Respondent was acting irrationality as a result of a “disturbed
state of mind”. The only evidence capable of supporting that finding was the fact that the
Respondent had started to cry during the meeting on 16 November 2016. The Appellant
asserted that this falls “well short” of demonstrating that someone had a “disturbed mind” and
was “not capable of thinking and acting rationally”.
[15] In respect of the public interest, the Appellant submitted that the Decision of
Commissioner Cambridge “creates significant doubt about the right of an employer to accept
an employee’s freely given resignation”, and that it would place “an unfair onus upon
managers to assess an employee’s state of mind before accepting (or refusing to accept) an
employee’s resignation.” The Decision is inconsistent with the relevant legal principles, and
raises issues of important and general application for employers.
Permission to appeal
[16] An appeal under s.604 of the Act is an appeal by way of rehearing. The Commission’s
powers on appeal are only exercisable if there is an error on the part of the primary decision
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maker.19 There is no right to appeal, and an appeal may only be made with the permission of
the Commission. Section 604(2) of the Act states:
“Without limiting when the FWC may grant permission, the FWC must grant
permission if the FWC is satisfied that it is in the public interest to do so.
Note Subsection (2) does not apply in relation to an application for an unfair
dismissal (see section 400).”
[17] Section 400 of the Act provides as follows:
“(1) Despite subsection 604(2), the FWC must not grant permission to appeal from
a decision made by the FWC under this Part unless the FWC considers that it
is in the public interest to do so.
(2) Despite subsection 604(1), an appeal from a decision made by the FWC in
relation to a matter arising under this Part can only, to the extent that it is an
appeal on a question of fact, be made on the ground that the decision involved
a significant error of fact.”
[18] In Coal & Allied Mining Services Pty Ltd v Lawler and others, Buchanan J (with
whom Marshall and Cowdroy JJ agreed) characterised the test under s.400 of the Act as “a
stringent one”.20 The task of assessing whether the public interest test is met is a discretionary
one involving a broad value judgment.21 In GlaxoSmithKline Australia Pty Ltd v Makin a Full
Bench of the Commission identified some of the considerations that may attract the public
interest:
“… the public interest might be attracted where a matter raises issues of importance
and general application, or where there is a diversity of decisions at first instance so
that guidance from an appellate court is required, or where the decision at first
instance manifests an injustice, or the result is counter intuitive, or that the legal
principles applied appear disharmonious when compared with other recent decisions
dealing with similar matters.”22
[19] It will rarely be appropriate to grant permission to appeal unless an arguable case of
appealable error is demonstrated. This is so because an appeal cannot succeed in the absence
of appealable error.23 However, the fact that the Member at first instance made an error is not
necessarily a sufficient basis for the grant of permission to appeal.24
19 Coal and Allied Operations Pty Limited Australian Industrial Relations Commission and others (2000) 203 CLR 194; 99
IR 309 at [17] per Gleeson CJ, Gaudron and Hayne JJ.
20 (2011) 192 FCR 78; (2011) 207 IR 177 at [43].
21 O’Sullivan v Farrer and another (1989) 168 CLR 210 at 216-217 per Mason CJ, Brennan, Dawson and Gaudron JJ;
applied in Hogan v Hinch (2011) 243 CLR 506 at [69] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ; Coal
& Allied Mining Services Pty Ltd v Lawler and others (2011) 192 FCR 78; (2011) 207 IR 177 at [44]-[46].
22 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343 (Kaufman SDP, Ives DP, Spencer C, 23 July 2010) at
[27], [(2010) 197 IR 266].
23 Wan v Australian Industrial Relations Commission (2001) 116 FCR 481 at [30].
24 GlaxoSmithKline Australia Pty Ltd v Makin [2010] FWAFB 5343; (2001) 197 IR 266 at [26]-[27]; Lawrence v Coal &
Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWAFB 10089; (2010) 202 IR 388 at [28],
affirmed on judicial review in Coal & Allied Mining Services Pty Ltd v Lawler (2011) 192 FCR 78; 207 IR 177; New
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Consideration - Permission to Appeal
[20] In considering whether this appeal attracts the public interest, we have considered the
matters raised by the Appellant above25 and we are not satisfied that:
there is a diversity of decisions at first instance so that guidance from an appellate
body is required of this kind;
the appeal raises issues of importance and/or general application;
the decision at first instance manifests an injustice, or the result is counter intuitive;
or
the legal principles applied by the Commissioner were disharmonious when
compared with other decisions dealing with similar matters.
[21] It appears to us that the basis on which the Commissioner reached his Decision was
consistent with the line of authority that was examined and ultimately set out by the Full
Bench in Bupa Aged Care Australia Pty Ltd t/a Bupa Aged Care Mosman v Shahin
Tavassoli.26 The Commissioner considered if the Respondent’s resignation was “legally
effective” in the circumstances, that is, whether the Respondent had resigned or if she had
been dismissed within the meaning provided under s.386(1)(a) of the Act. In determining that
question, the Commissioner followed the Full Bench’s approach by taking into account
whether the circumstances of the case was such that the resignation was provided 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.”27
[22] The Commissioner found on the evidence before him, that the Respondent was
emotionally distressed, irrational and confused and therefore special circumstances existed in
this case. In those circumstances the Commissioner concluded that:
[52] The resignation of the [Respondent] should not have been accepted in these
circumstances. Particularly when one has regard for the [Respondent’s] lack of
English language skills and certain ethnic and cultural factors, I am compelled to
conclude that special circumstances existed such that the resignation of the
[Respondent] was legally ineffective. (Emphasis added).
[23] This conclusion, in our view, was not a subjective determination of whether the
Respondent was conveying a real intention to resign, but rather an objective assessment of
that question. In that regard, the Commissioner’s determination that the Respondent was
dismissed on the employer’s initiative and in satisfaction of the meaning of dismissed
provided by s. 386(1)(a) of the Act was not a result which was counter intuitive or one in
which manifests in injustice.
South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation
Office [2014] FWCFB 1663; (2014) 241 IR 177 at [28].
25 See paragraph [11]-[15] of this decision.
26 [2017] FWCFB 3941 at [37]-[47].
27 [2017] FWCFB 3941 at [47].
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[24] Further, we are not satisfied that there is an arguable case of error in relation to any
other aspect of the Decision.
Conclusion
[25] For the reasons set out above, we are not persuaded that the Appellant has put
anything before the Commission that could be said to enliven the public interest. As such, we
are not satisfied that it would be in the public interest to grant permission to appeal pursuant
to s.400(1) of the Act.
[26] The application for permission to appeal is refused.
[27] Pursuant to Order (4) and (5) of the Full Bench decision in ([2017] FWCFB 3941),
matter no. (C2017/4000) is returned to the Full Bench and the stay order of Vice President
Hatcher made on made 25 July 2017 will remain in effect until the further order of the Full
Bench in (C2017/4000) is issued.
Colman DP
[28] The questions for consideration before the Full Bench are whether the decision below
discloses an arguable case of appealable error, and whether granting permission to appeal is in
the public interest.
[29] Section 386(1)(a) of the Fair Work Act 2009 (Act) states that a person has been
dismissed, for the purposes of the unfair dismissal provisions in Part 3-2 of the Act, if the
person’s employment has been terminated ‘on the employer’s initiative.’ The Commissioner’s
decision addressed the question of whether Ms Tavassoli was dismissed by Bupa Aged Care
Australia Pty Ltd (Bupa).
[30] The Full Bench that referred this question to the Commissioner for determination
considered the authorities in relation to resignation in the context of s.386(1)(a) and
concluded:
“(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.”28 (Emphasis added)
[31] Whether a person has resigned is not assessed by reference to the parties’ subjective
intentions or understandings. It depends on what a reasonable person would have understood
28 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941 at [47]
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to be the objective position, taking into account what was said, and the surrounding
circumstances.29
[32] The Commissioner makes factual findings that underpin his conclusion that Ms
Tavassoli was dismissed. These are set out in paragraph [8] of the majority decision and need
not be repeated.
[33] Bupa’s notice of appeal challenges various factual findings. In this regard, an appeal
against a decision under Part 3-2 on a question of fact can only be brought if the alleged error
is ‘significant’ (see s.400(2)). More generally, the mere fact that an appeal bench might have
reached a different conclusion in relation to the evidence is not a basis to apprehend any error
on the part of the primary decision-maker. The notice of appeal also contends that the
Commissioner did not properly apply the reasoning of the Full Bench, and did not determine
whether Ms Tavassoli intended to resign.
[34] At paragraph 48 of his decision, the Commissioner states:
‘Consequently, when the applicant persisted with her apparent intention to resign, Mr
Brice significantly misjudged the mental state of the applicant and he failed to
recognise that the applicant was acting irrationally as a result of her disturbed state of
mind. In the circumstances, the resignation that was amended and resubmitted by the
applicant was not given freely, deliberately and as a result of any reasoned
deliberation.’
[35] I make some brief observations. Firstly, the basis for concluding that Ms Tavassoli’s
resignation was not given ‘freely’ is not apparent to me. There was no contention that she was
forced to resign.
[36] Secondly, if Ms Tavassoli was acting ‘irrationally’ in a clinical sense, it might have
meant that she had no capacity to form an intention to resign. But there was no suggestion that
this was the case in the present matter. If however Ms Tavassoli was acting irrationally in a
non-clinical sense, it is not clear to me how this was relevant to the question of whether she
intended to resign. At least arguably, it would appear to relate to a different question, namely
whether she was acting sensibly or in her own best interests. Similarly, whether her
resignation was the result of any ‘reasoned deliberation’ appears to go to the question of
whether Ms Tavassoli made a good decision, rather than whether she intended to resign. But
there is no statutory ‘cooling off’ period.
[37] Thirdly, whether a resignation was rational (sensible) or reasoned are matters
substantially within the province of an individual’s personal circumstances and preferences.
The assessment of such matters is highly subjective. A person might rather resign than
undergo an investigation into very serious allegations. This may or may not be a sensible or
good decision. The employer is not in a position to evaluate these matters. An objective
analysis of the situation is required.
[38] At [52], the Commissioner concludes:
29 Koutalis v Pollett [2015] FCA 1165; 235 FCR 370, at [43]
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‘The resignation of the applicant should not have been accepted in these
circumstances. Particularly when one has regard for the applicant’s lack of English
language skills and certain ethnic and cultural factors, I am compelled to conclude that
special circumstances existed such that the resignation of the applicant was legally
ineffective.’
[39] The presence of special circumstances may provide an evidentiary basis for a
conclusion that, objectively considered, there was no real intention to resign. However,
special circumstances are not a sufficient condition for a conclusion that a resignation was
legally ineffective. The dispositive passage above does not contain a finding that Ms
Tavassoli did not intend to resign, objectively considered. Nor was Ms Tavassoli’s counsel
able to identify during the hearing before us where in the decision such a finding was made.
Perhaps on a fair reading of the decision as a whole it should be understood as reflecting such
a finding. That is a matter that could be the subject of argument and consideration in the
appeal.
[40] In my view there is at least an arguable case that the Commissioner did not make any
such finding and instead relied on subjective considerations for concluding that Ms
Tavassoli’s resignation was legally ineffective. This would constitute appealable error.
[41] I consider that the application for permission to appeal attracts the public interest, as
the arguable error goes to jurisdiction and arises in a commonly occurring factual setting.
[42] I would grant permission to appeal.
VICE PRESIDENT
Appearances:
Mr J. Darams, of Counsel, appeared for the Appellant.
Mr C. McArdle, appeared for the Respondent.
Hearing details:
2018.
Melbourne with video link to Sydney:
April 3.
Printed by authority of the Commonwealth Government Printer
PR606947
THE FAIR WORK ISSION THE SEAA
