1
Fair Work Act 2009
s.394—Unfair dismissal
Sumeet Thakur
v
Assetlink Services (11) Pty Limited
(U2023/5642)
COMMISSIONER BISSETT MELBOURNE, 10 OCTOBER 2023
Application for an unfair dismissal remedy
[1] Mr Sumeet Thakur (Applicant) has made an application to the Commission in which
he seeks a remedy for unfair dismissal pursuant to s.394 of the Fair Work Act 2009 (FW Act).
Mr Thakur was employed by Assetlink Services (11) Pty Ltd (Respondent). The Applicant
commenced his employment with a different company in 2013 – that company having
eventually been taken over by the Respondent. The Applicant says that he was dismissed from
his employment on 7 June 2023. The Respondent says that the Applicant resigned his
employment on 2 June 2023 and that he was not dismissed.
[2] The matter to be determined by the Commission is therefore if the Applicant was
dismissed or resigned his employment.
[3] The Applicant and Respondent both filed submissions in support of their respective
positions as to the termination of employment. The hearing dealt only with the question of
whether the Applicant had been dismissed and did not traverse issues going to the merits of the
claim for unfair dismissal.
[4] Prior to the hearing I granted the Respondent permission to be represented by a lawyer
pursuant to s.596(2)(a) of the FW Act, being satisfied that the matter would be dealt with more
efficiently if permission was granted.
[5] Having heard from the parties I determined that the matter would proceed by way of
hearing. In doing so I informed the parties that I intended to run the proceedings in a manner
taking into account that the Applicant was not represented.
LEGISLATIVE PROVISIONS
[6] To be able to prosecute a claim for a remedy for unfair dismissal a person must have
been dismissed from their employment.
[2023] FWC 2550
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 2550
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[7] The meaning of dismissal is set out in s.386(1) of the FW Act:
386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on
the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.
[8] In maintaining that he had been dismissed the Applicant was not clear on which
paragraph of s.386(1) he relied – that is whether he was dismissed on the employer’s initiative
or if he had, in fact resigned, but was forced to do so. For the reasons given below I have
considered each of these matters.
BACKGROUND
[9] The factual background to this matter is not in dispute.
[10] In May 2023 the Applicant made an application to the Commission for orders to stop
bullying. That matter was dealt with by Commissioner Wilson with a recommendation to
resolve the matter ultimately agreed to by both parties.
[11] On 11 May 2023 the Applicant emailed Commissioner Wilson and advised him that (a)
the terms of the recommendation were satisfactory and (b) that he had applied for a transfer
with the Respondent to Westfield Shopping Centre (Westfield or Airport West) and was going
to ‘start there from next week and onwards’.
[12] A contract of employment for permanent full time work at Westfield was provided to
the Applicant by the Respondent on 16 May 20231 indicating a start date of 26 May 2023. The
Applicant says he never signed the contract.
[13] The contract set a roster for the Applicant to work Tuesday, Wednesday, Thursday and
Friday (nights) from 8.00 pm – 8.00 am.
[14] In the last week of May the Applicant appears to have undertaken some induction
training at Westfield.
[2023] FWC 2550
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[15] On Monday 2 June 2023 the Applicant sent a text message to his Westfield supervisor
(Sam) at 3.25 pm in which he said:
Hi sam,
Just wondering if u can please cover today’s night shift, if possible?
Please update.
Thanks
Sumeet2 (sic)
[16] Sam replied by text that he couldn’t cover the shift, and that the Applicant had to start
his roster that night as Sam was caught up in a ‘first aid situation’.
[17] The Applicant replied:
Please try to cover, if possible as i m badly stuck for tonight. (sic)
[18] Sam replied that he could not cover the shift and had no one to cover it.
[19] The Applicant replied:
Ok no worries, thanks
[20] Sam then reminded the Applicant at 3.50 pm that he needed to turn up 10 minutes prior
to the commencement time for a handover3 with the Applicant replying straight away:
No worries, thanks.
[21] At 4.54 pm on 2 June 2023 the Applicant sent a further text message to Sam that said:
Hi sam,
I really apologise but I am badly stuck now and not willing to come tonight.
I will provide my resignation as soon as possible from fulltime role.
Thanks for your help.
Regards,
Sumeet4 (sic)
[22] Sam again replied:
Hi Sumit, as I mentioned this a very short notice I can’t cover your shift tonight, your
resignation is another thing we can discuss but for now you need to attend you shift.
(sic)
[23] Sam also called the Applicant around the time of the last text he sent to the Applicant.
The Applicant did not answer the call5 or call Sam back that day or on any of the following
days.
[2023] FWC 2550
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[24] The Applicant did not attend work on 2 June 2023 or the following Tuesday and
Wednesday nights. On 8 June 2023 – the following Thursday – Sam sent a text message to the
Applicant at 10.34 am as follows:
Hi Sumeet, your resignation accepted as you didn’t turn up to your shifts last week and
this week,
Please send me an email resignation latter.
Thank you
Sam6 (sic)
[25] The Applicant replied:
Hi sam, I will update you asap, thanks
[26] On Friday 9 June 2023 the Applicant sent a text message to Sam at 9.58 am:
Hi sam,
Just wondering about few missing shifts in kronos as I have done following shifts in last
week.
31/5/23- 0830-10am-fire training7 (sic)
[27] On 10 June 2023 at 12.42 pm the Applicant sent an email to Ms Emma Thiessen of the
Respondent and said:
Hi Emma,
Just wondering if any job opportunities available on any other Assetlink work site as I
have done training at Westfield Airport West shopping centre but it doesn’t suits me.
I am looking forward to hear from you.
Kind Regards
Sumeet Thakur (sic)
[28] The Applicant said that ‘after that day’ (in his application form he said it was 15 June
2023) he telephoned Ms Thiessen.
[29] On 14 June 2023 the Applicant sent an email to Commissioner Wilson’s chambers
(copied to the Respondent) in which he provided a brief summary of the events of 2 June 2023.
He then said:
I am looking forward to hear in regards to this matter as Assetlink informed me that
they accepted my resign but I didn’t officially resigned from my role till today (sic)
[30] On 6 July 2023 the Applicant discontinued his application for orders to stop bullying.
SUBMISSIONS
The Applicant
[2023] FWC 2550
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[31] The Applicant says that he completed his induction training on 1 June 2023 and was
‘supposed to work on 2 June 2023 from 2000-0800 but unfortunately, [he] had to cancel the
work because of emergency in [his] family.’ He says he made an early request to cancel his
shift on 2 June 2023 but his manager tried to force him to attend work ‘at any cost.’
[32] The Applicant says that he only had a ‘very small conversation’ by text message on 2
June 2023 where he ‘only mentioned to [Sam] that I will resign if I have to be pushed to work
in my family emergency’ but he did not say in the message that he was resigning.
[33] The Applicant submits that he did not resign on 2 June 2023 but was told by Ms Thiessen
on 15 June 2023 that the Respondent had accepted his resignation.
[34] The Applicant submits that Sam, acting out of vengeance, forced the Applicant to attend
work on 2 June 2023 ‘at any cost’ and ignored his family emergency. The Applicant also says
that he had no roster and none had never been provided to him.
[35] The Applicant submits that his text message of 2 June 2023 could not be taken as a
resignation and that Sam has twisted his words (‘moulded the language’8) to reflect a
resignation. Further, the Applicant submits that if he had resigned on 2 June 2023 the request
by Sam on 8 June 2023 that he submit a resignation letter makes no sense. The Applicant further
submits that Sam was well aware that he was stuck in a family emergency on 2 June 2023.9
[36] The Applicant relies on the definition of ‘resignation’ in the Merriam-Webster
dictionary of ‘a formal notification of resigning’ to support his submissions that he did not
resign as he has not provided a ‘formal notification’ of such. Further, he submits that his words
‘I will provide…’ suggest some future act.
[37] The Applicant also submits that a resignation must be a voluntary act and, where the
Applicant has no choice but to resign then the resignation is forced and, therefore, a
‘constructive dismissal’. The Applicant refers the Commission to the decisions in Bupa Aged
Care Australia Pty Ltd T/A Bupa Aged Care Mormon v Sharon Tavassoli10 (Bupa), Tao Yang
v SAL HR Services Pty Ltd11 (Yang) and Bethan St John Rutter v Anglogold Ashanti Australia
Limited12 (Anglogold) in support of his case. A fourth case referred to by the Applicant was
not relevant. The Applicant submits that these cases support his submissions that he was being
forced to work in circumstances of a family emergency and hence had no choice but to resign.
[38] The Applicant submits that the Respondent was too quick in its actions of dismissal and
did not try and contact the Applicant and clarify what it was he intended.
[39] The Applicant suggested that, on 2 June 2023 and the period leading up to that, he was
only working casually at Westfield and that he worked only when Sam contacted him to ask
him to work a shift. He said he did not attend work after the 2 June 2023 exchange as he was
waiting on a call from Sam. The Applicant could not, when questioned, explain his failure to
return Sam’s call of 2 June 2023 or to contact Sam thereafter to ask when his next shift might
be.
The Respondent
[2023] FWC 2550
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[40] The Respondent submits that, with his express agreement, the Applicant was offered
and accepted a permanent ongoing role at Westfield Airport West. That appointment was
confirmed by the provision of the contract of employment.
[41] In the circumstances the Respondent submits that it was reasonable for the Respondent
to conclude that the Applicant had resigned his employment based on:
• the text message string of 2 June 2023
• the failure of the Applicant to perform any shifts between 2 and 8 June 2023
• The silence of the Applicant between 2 and 8 June 2023
• The text exchange of 8 June 2023
[42] The Respondent submits that it was only when it received a copy of the email sent by
the Applicant on 14 June 2023 to the chambers of Commissioner Wilson that it appeared the
Applicant was contesting his resignation. The Respondent says that, prior to this email, there
was nothing in the exchanges with the Applicant that suggested he contested the acceptance of
his resignation.
[43] The Respondent submits that the Applicant had multiple opportunities – if he did contest
his resignation – to indicate that he had not resigned and to clarify with the Respondent that his
text message of 2 June 2023 was not intended to be a resignation. The Respondent says the
Applicant could have done this by attending for his next scheduled shift on 6 June 2023, calling
Sam, responding to the text of 8 June 2023 from Sam to say he had not resigned or emailing
Ms Thiessen after the conversation he had with her to say he had not resigned.
[44] The Respondent says that the Applicant’s submission that he sent a text to Sam stating
‘…that I will resign if I have to be pushed to work in my family emergency’13 but that he ‘didn’t
mention in the SMS that I am resigning’14 must be rejected. None of the text messages of 2 June
2023 (or of any other date) support that the Applicant conveyed to Sam that he had a ‘family
emergency’. In this respect the Respondent submits that I should take into account the failure
of the Applicant to be open and frank on this point and I should also conclude that the Applicant
has not been open and frank about why he did not work between 2 and 8 June 2023.
[45] The Respondent relies on the decision in Bupa and says that, given the failure of the
Applicant to clearly articulate how he was dismissed (in terms of s.386(1)(a) and (b) of the FW
Act) both limbs of s.386(1) should be considered.
CONSIDERATION
[46] I am satisfied that the relevant law in relation to whether an employee has been
dismissed within the meaning of the FW Act is canvassed in the decision in Bupa and I have
applied the principles set out in that decision in determining the matter before me.
[47] The Applicant did not (and could not) clearly articulate the basis on which he said he
had been dismissed from his employment. For this reason, out of abundance of caution, I have
considered his actions and those of the Respondent under both limbs of s.386(1) of the FW Act.
[48] There are findings of fact relevant to the totality of my considerations below.
[2023] FWC 2550
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[49] First, I accept, and it is not disputed, that the Applicant did not return the telephone call
he received from Sam on 2 June 2023 either on that day or on a later date.
[50] Second, I find that the Applicant did not advise his supervisor, or anyone else of the
Respondent, that he had a family emergency on 2 June 2023 and this was the reason he could
not come to work. The only reason he gave for not being able to attend his shift that night was
that he was ‘badly stuck’.
[51] Third, the evidence before the Commission does not support a finding that the
Applicant’s supervisor acted out of vengeance on 2 June 2023.
[52] Fourth, I do not accept, and it is not supported by the evidence before me, that the
Applicant told his supervisor that he would resign if pushed to come to work during a family
emergency. Again, the Applicant did not advise his supervisor, based on the evidence before
me, that he could not come to work due to a family emergency.
Was the Applicant’s employment terminated on the Respondent’s initiative (s.386(1)(a))?
[53] In broad terms, a resignation which is not regarded as being truly voluntary may not be
an effective resignation capable of acceptance by an employer. In such a case acceptance of the
resignation will constitute a termination at the initiative of the employer. However, where an
employee uses unambiguous words an employer is entitled to treat such a resignation as
effective and which operates to terminate the employment.
[54] A resignation that is given in the heat of the moment or under extreme pressure may
constitute special circumstances such that a reasonable period of time should be allowed to
elapse and/or further enquiries made as to whether the resignation was not intended. If a
resignation is not withdrawn within a reasonable time, this may suggest the resignation was
intended.
[55] Special circumstances may also exist where an employee is ‘jostled’ by the actions of
the employer to resign such that the resignation in such circumstances is not effective.
[56] In all cases an objective view of the actions of the employer and employee is required.
[57] In this case, based on the evidence before me, the Applicant advised of his intention to
resign his employment at 4.54 pm on 2 June 2023, just over one hour after he said he would
attend for work and one and a half hours after he asked if his shift could be covered because he
was ‘badly stuck’. It is notable that at no stage did the Applicant tell his supervisor why he could
not attend work.
[58] The Applicant did not speak to his supervisor by phone either on 2 June 2023 or in the
days thereafter and seek to explain the situation he was in (or inquire as to his next shift).
[59] I am satisfied that the Applicant, both by the words of his text message of 2 June 2023
(when he said ‘I will provide my resignation as soon as possible from fulltime role’) and by his
failure to attend to work on the following Tuesday and Wednesday nights or otherwise contact
[2023] FWC 2550
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the Respondent, intended to resign his employment. I am satisfied that the Respondent could
reasonably conclude that the Applicant had resigned his employment. The Applicant, therefore,
brought the employment relationship to an end.
[60] Further, at no time did the Applicant advise the Respondent that he did not resign his
employment.
[61] My conclusion that the Respondent did not terminate the Applicant’s employment on
its initiative is further supported by the text message the Applicant sent to his supervisor on
9 June 2023, after his supervisor advised that his resignation had been accepted, inquiring as to
missing pay and the email he sent to Ms Thiessen on 10 June 2023 enquiring about other
opportunities because Airport West ‘doesn’t suit [him]’. These communications both occurred
after the Applicant was advised that his resignation had been accepted and yet the Applicant
did not quibble with this advice from his supervisor or respond directly to it.
[62] Further, the Applicant’s evidence that he was waiting for his supervisor to contact him
with details of his next shift is not credible. The Applicant had sought a move to Airport West,15
he advised Commissioner Wilson that he was moving to Airport West, he was provided with a
contract for the role but says he did not sign it (and offers no explanation for this) but did
undertake the training necessary to work at that location. In his text message of 2 June 2023 he
indicated that he would provide his resignation ‘from fulltime role’ from which I infer he was
aware he was employed on a full time basis. By these actions I am satisfied that the Applicant
accepted the contract for Airport West. No other explanation is credible. If he had not
commenced at Airport West it is unclear why he would attend for training. Further, the contract
provided for employment on a full time, permanent basis and made clear that he commenced in
that role on 24 May 2023.
[63] In circumstances where the contract clearly set out the Applicant’s roster, there is no
basis for the Applicant to be ‘waiting’ for the supervisor to advise him of his next shift. But
even if this was so he still did not, at any time after 2 June 2023, protest that he had not resigned
his employment.
[64] The Respondent, in this respect, took no action other than to process the Applicant’s
resignation. Even when he was advised by Ms Thiessen on 15 June 2023 that the Respondent
had accepted his resignation the Applicant did not protest that he had not resigned.
[65] I am therefore satisfied that the Respondent provided the Applicant with a very
reasonable period within which he could have advised that his employment had not been
terminated but he did not do so. Rather, after having said he would resign and having not
attended for any further shifts and being told his resignation was accepted the Applicant took
no action to correct the Respondent’s view.
[66] For these reasons I am not satisfied that the resignation of the Applicant amounts to a
termination of employment at the initiative of the Respondent. Section 386(1)(a) of the FW Act
does not apply to his resignation.
Was the Applicant forced to resign by conduct or a course of conduct of the Respondent
(s.386(1)(b))?
[2023] FWC 2550
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[67] Again, the decision Bupa provides guidance as to the approach to this question.
[68] Section 386(1)(b) requires a focus on the conduct of the employer. In determining if a
resignation was forced by the conduct or course of conduct of the employer it is necessary to
determine what the critical action was that caused the resignation. For the conduct of the
employer to cause the resignation it must be that some act of the employer results directly or
consequently in the termination of the employment. Further, it must be that the employer
intended its actions to bring the employment to an end. When the employee has no effective or
real choice but to resign the termination will be at the initiative of the employer.
[69] In this case I am not satisfied that the Respondent’s actions, viewed objectively, left the
Applicant with no real choice but to resign.
[70] The Applicant, in circumstances where the only information he provided to his
supervisor was that he was ‘badly stuck’ and could not attend to his shift on 2 June 2023 and
was told his shift could not be covered, had a range of options available to him besides
resignation. The Applicant could have explained why he could not attend work that night and
asked for personal or annual leave to cover that night. As it was he made no request. Further,
the Applicant could have spoken to his supervisor or turned up for his next shift. He did none
of these.
[71] The Respondent did not threaten the Applicant’s employment because of his non-
attendance on 2 June 2023 and, in fact, anticipated that the Applicant would attend to work for
his next shift on the following Tuesday night.
[72] Objectively viewed there is no conduct on the part of the Respondent that caused the
Applicant to resign his employment.
[73] I am therefore not satisfied that s.386(1)(b) applies to the Applicant’s resignation.
CONCLUSION
[74] For the reasons given I am not satisfied the Applicant was dismissed from his
employment.
[75] Section 385 of the FW Act sets out when a dismissal may be unfair. It requires, as one
of the matters that must be met, that the person has been dismissed.
[76] Having found the Applicant was not dismissed within the meaning of the FW Act I
cannot find the Applicant was unfairly dismissed.
[77] The application must therefore be dismissed.
[2023] FWC 2550
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COMMISSIONER
Appearances:
S Thakur, for himself
A Denton of counsel, for the Respondent
Hearing details:
2023.
Melbourne:
September 19.
Printed by authority of the Commonwealth Government Printer
PR766814
1 Court Book (CB) page 31
2 Submissions of the Applicant, CB page 13
3 Witness statement of Lucy Lenehan, attachment E, CB page 37
4 CB page 15
5 While no message was left the Applicant does not dispute that the number that called him was ‘Sam’
6 Submissions of the Applicant, CB page 16
7 Witness statement of Lucy Lenehan, attachment H, CB page 43
8 Reply submissions of the Applicant, paragraph 7, CB page 8
9 Reply submissions of the Applicant, paragraph 5, CB page 9
10 [2017] FWCFB 3941
11 [2023] FWC 1325
12 [2023] FWC 1891
13 Applicant’s submissions of 23 August 2023, CB page 4 and in the Applicant’s Form F2
14 Ibid
15 Witness statement of Lucy Lenehan, attachment B, CB page 27
E WORK COMMISSION WORK THE SEAL THE M$
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr766814.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1325.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1891.pdf
