1
Fair Work Act 2009
s.365—General protections
Alejandra Barbosa Salgado
v
Riddwood Consulting Engineers Pty Ltd
(C2023/4716)
DEPUTY PRESIDENT DEAN CANBERRA, 20 SEPTEMBER 2023
Application to deal with contraventions involving dismissal – no dismissal.
[1] Ms Alejandra Barbosa Salgado (Applicant) has made an application pursuant to s.365
of the Fair Work Act 2009 to deal with a general protections dispute involving her alleged
dismissal by Riddwood Consulting Engineers Pty Ltd (Respondent).
[2] The Respondent has raised a jurisdictional objection to the application on the basis that
the Applicant was not dismissed.
[3] It is not in dispute that on 29 June 2023 the Applicant gave the Respondent written
notice of her resignation, effective 28 July 2023.
[4] The Applicant claims she was dismissed on 17 July 2023, part way through her notice
period.
[5] The Commission must determine whether the Applicant was dismissed before it can
exercise powers under s.368 of the Act to deal with the dispute about whether her dismissal was
in contravention of the general protections provision.1
[6] A hearing took place on 19 September 2023. At the hearing, the Applicant appeared on
her own behalf and Ms S Kelly appeared for the Respondent.
[7] For the reasons set out below, I find that the Applicant was not dismissed within the
meaning of the Act and accordingly I will dismiss the application.
Background
[8] The Applicant was employed by the Respondent from April 2022 in the role of Office
Manager. She reported to the Finance Controller, Ms Emma Martin, who is the wife of Mr
Conor Martin, the Managing Director of the Respondent.
[2023] FWC 2407
DECISION
AUSTRALIA FairWork Commission
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[9] The Applicant says the Respondent’s business grew significantly between her
commencement in April 2022 to the end of June 2023, which meant there were more invoices
and accounting related processes to deal with every month.
[10] In or around mid-June 2023 the Applicant, Mr Martin and Mr Ionnis Moraloglou, an
Engineer, had a meeting. The Applicant says Mr Martin became upset because the Applicant
had not sent out invoices for a particular project they were working on. She said she began
crying and told Mr Moraloglou “I cannot do this anymore, I don’t need this … I don’t need all
this stress”. Mr Moraloglou gave evidence that Mr Martin expressed concern that the invoice
was not ready but did not suggest Mr Martin was upset.
[11] On 27 June 2023 the Applicant had her performance review. She said she intended to
resign then but changed her mind because of her financial situation. She gave evidence that she
was surprised that her review by Mr Martin was complimentary.
[12] On 29 June 2023 the Applicant gave evidence that she spoke to Mr Martin and told him
she was going to leave the company. She said he told her he was on his way to a meeting and
asked her to put her resignation in writing. The Applicant sent her resignation letter a few hours
later, which is in the following terms:
“Dear Connor Martin
Please accept this letter as formal notification of my intention to resign from my position
as Administrative manager with Riddwood Consulting engineers. In accordance with
my notice period, my final day will be July 28th, 2023.
I would like to take this chance to thank you for the opportunity to have worked in the
position for the past 15 months and four days. I have learned a great deal during my
time here and have enjoyed collaborating with my colleagues. I will take a lot of what I
have learned with me my career and will look back at my time here as a valuable period
of my professional life.
During the next four weeks, I will do what I can to make the transition as smooth as
possible and will support the business in whatever way I can to hand over my duties to
colleagues or to my replacement. Please let me know if there is anything further I can
do to assist in this process.
Sincerely”
[13] The last day the Applicant attended work was 17 July 2023.
[14] On 18 July 2023 the Applicant provided the Respondent with a medical certificate
indicating she was unfit to work out the remainder of her notice period.
[15] The Respondent submitted that at the time of the Applicants resignation, she had taken
all her accrued personal leave. This was disputed by the Applicant, who said she had personal
leave available to her.
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[16] The Applicant was not paid for the remainder of her notice period because the
Respondent asserted she had no paid personal leave available.
When is a person ‘dismissed’?
[17] The meaning of ‘dismissed’ is defined in s.386(1) of the Act which states:
(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.
[18] In Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli2 (Bupa), a Full Bench of the
Commission examined the relevant authorities as to what constitutes ‘dismissed’ under s.386(1)
which included the following:
(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.
[19] In Lance Gunther & Michele Daly v B & C Melouney T/A Easts Riverside Holiday Park3
Deputy President Sams noted the following when considering whether the applicant was
dismissed:
a. Jurisdiction can only exist where termination of employment at the initiative of the
employer has occurred. ‘Initiative’ is relevantly defined in the New Shorter Oxford
Dictionary as:
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‘initiative 1. The action of initiating something or of taking the first step or the lead;
an act setting a process or chain of events in motion; an independent or enterprising
act.’
b. This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd
(Mohazab) where a Full Court of the Industrial Relations Court of Australia said,
‘… a termination of employment at the initiative of the employer may be treated as
a termination in which the action of the employer is the principal contributing factor
which leads to the termination of the employment relationship.’
c. In Mohazab, the Full Court also said:
‘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.’
d. A Full Bench of the AIRC in Stubbs v Austar Entertainment Pty Ltd said, ‘… to
constitute termination at the initiative of the employer the termination must be the
direct or consequential result of ‘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 ...’[Rheinburger v Huxley Marketing, 16
April 1996 per Moore J].
Consideration
[20] The only matter the Commission is required to determine is whether the Applicant was
dismissed within the meaning of s.386.
[21] Having considered the evidence and submissions, I find that the Applicant was not
dismissed within the meaning set out in s386(1) of the Act, in that she was not dismissed at the
initiative of the Respondent, nor was she forced to resign because of conduct engaged in by the
Respondent.
[22] There is no question that the Applicant resigned. To the extent she may have suggested
she was forced to do so, I reject this suggestion. The Applicant had had a positive performance
review only days before she resigned. Further, her resignation letter makes no suggestion of
being forced to resign. On the contrary, the resignation letter is positive about her time with the
Respondent. Finally, she had been working through her notice period until she became unwell.
While the Applicant said she was subjected to bullying and an excessive workload, there is no
evidence of a course of conduct of the employer that supports a finding that the Applicant was
forced to resign.
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[23] What is clear from the evidence is that the Applicant was unable to work the balance of
her notice period, which the Respondent was entitled to require her to do, because she was
unwell.
[24] The Applicant contends that she was dismissed because she was not paid the balance of
her notice period, and says she had personal leave available to her.
[25] The Respondent contends she was not dismissed and was not entitled to payment of the
balance of the notice period in circumstances where she was not able to work and had no
remaining entitlement to paid personal leave. Most of the Respondent’s witnesses were
unavailable for cross examination because of a mistaken belief that the filing of their statements
was all that was required. As they were not available for cross examination, I did not accept
their witness statements into evidence.
[26] There were no employment records put before the Commission. Given the lack of
evidence, it is not possible for the Commission to form a concluded view about whether the
Applicant had paid personal leave available to her.
[27] The Applicant relied on a decision of Senior Deputy Richards in Brunner v
Amalgamated Marketing Pty Ltd4 (Brunner) in support of her contention that she had been
dismissed. In Brunner, the Applicant had resigned giving 3 weeks’ notice. The next working
day she was told that she was required to return her keys and other property of the Respondent
and was paid one week’s pay in lieu of notice. The Senior Deputy President found that while
she had resigned, the actions of the employer in forming the view she would not return to the
workplace and paying only one week in lieu of notice was a termination at the initiative of the
employer. He awarded compensation of an amount equivalent to the balance of the notice
period, being two weeks pay.
[28] The obvious difference between the circumstances in Brunner and this matter is that the
Applicant here provided a medical certificate clearly indicating she would not be able to work
the remainder of her notice period. This is not a case where the Respondent unilaterally
shortened the notice period given by the Applicant. The dispute about the entitlement to paid
personal leave, then, does not change the undisputed facts that the Applicant resigned and was
unable to work the balance of her notice period.
[29] The application is dismissed.
DEPUTY PRESIDENT
OF THE PAIR WORK THE FAIR ORK CO ADOTSALLA MMISSION THE SEALO
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Appearances:
A Salgado on her own behalf.
S Kelly for Riddwood Consulting Engineers Pty Ltd.
Hearing details:
2023.
By video:
September 19.
Printed by authority of the Commonwealth Government Printer
PR766354
1 Coles Supply Chain Pty Ltd v Milford [2020] FCAFC 152.
2 [2017] FWCFB 3941.
3 [2012] FWA 2473.
4 [2015] FWC 7837.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2012fwa2473.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc7837.htm
