1
Fair Work Act 2009
s.394—Unfair dismissal
Stephen Gock
v
Bnp Paribas
(U2023/7907)
DEPUTY PRESIDENT BOYCE SYDNEY, 29 NOVEMBER 2023
Application for an unfair dismissal remedy – jurisdictional objection – whether there was a
“dismissal” within the meaning of s.386 of the Fair Work Act 2009 – no dismissal – no
jurisdiction to determine Applicant’s claim – application dismissed.
[1] Mr Stephen Gock (Applicant) has filed an unfair dismissal application (Application)
under s.394 of the Fair Work Act 2009 (Act) with the Fair Work Commission (Commission).
The Respondent to the Application is the Bnp Paribas (Respondent), the Applicant’s former
employer.
[2] The Respondent raises a jurisdictional objection to the Application, namely, that the
Applicant was not “dismissed” by the Respondent within the meaning of s.386 of the Fair Work
Act 2009 (Act). This decision concerns this jurisdictional objection.
[3] At the hearing, the Applicant appeared for himself, and Mr Matthew Minucci, of
Counsel, instructed by Mr Deegan Fitzharris, Partner, Shanahan Tudhope lawyers, appeared
with permission for the Respondent.
Permission for legal representation
[4] Permission for both parties to be legally represented was granted prior to the hearing.
[5] Whilst the Applicant was legally represented prior to the hearing, including at the time
he filed his submissions and evidence, he chose to represent himself at the hearing.
[6] In Nicholas Williams and KTC Refrigeration & Air Conditioning Pty Ltd1, a Full Bench
of the Commission appears to suggest that where representation for a party to a proceeding
before the Commission changes, so as to avoid unfairness and/or a the denial of procedural
fairness, a Commissioner Member is expected to essentially run around in a series of ever
decreasing circles and revisit whether representation for the other party (who continues to be
represented) ought be maintained (the KTC Rule).
[2023] FWC 3149
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 3149
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[7] Whilst I am unable to identify any support for the KTC Rule under the Act (be it s.596,
or otherwise), or the case law, I applied the KTC Rule in this case. It came to pass that
permission for the Respondent’s to be legally represented was maintained, absent any objection
from Mr Gock.2
Legislation and case law
[8] The term “dismissed” (or dismissal) is defined under s.12 of the Act as having the
meaning set out in s.386 of the Act.
[9] Section 386(1) of the Act reads:
“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.”
[10] The phrase “terminated on the employer’s initiative” under s.386(1)(a) of the Act is
treated as a termination in which the action of the employer is the principal contributing factor
(directly or consequentially) that leads to (or has the objective probable result of leading to) the
termination of the employment relationship. That is, had the employer not taken the action that
it did, the employee would have remained employed.3
[11] Under s.386(1)(b) of the Act, a forced resignation occurs where an employee has no
other choice but to resign. The onus is upon an employee to prove that their resignation was
forced by their employer.4 In other words, an employee must be able to prove on the balance of
probabilities that his or her employer took relevant action/s with the intent, or objectively
probable result, of bringing the employment relationship to an end.5 The fact that a resignation
may have been foreseeable, or a reasonable response to the actions of an employer, is not the
test. Rather, the focus is upon whether the employee’s resignation was the objective probable
result of his or her employer’s action/s having regard to, or in light of, other avenues or options
equally open or available to the employee.
[12] In normal circumstances, where unequivocal words of resignation are used or conveyed
by an employee, an employer is entitled to immediately accept the resignation (without
question) and act accordingly.6 Further, once proffered, a resignation may not be withdrawn
unilaterally by an employee; it may only be withdrawn with the mutual consent of the employer.
In other words, a resignation cannot be proffered by an employee and then unilaterally
withdrawn prior to acceptance by an employer – the employer must always consent to its
withdrawal.7
[2023] FWC 3149
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Factual findings
[13] On the basis of the evidence before me, I make the factual findings that follow.
[14] The Respondent provides financial solutions to individuals, professional clients,
corporates and institutional investors.
[15] The Applicant commenced employment with the Respondent on 19 February 2018 on
a fixed term contract. On 1 August 2019, the Applicant became a permanent employee.
[16] On 13 April 2022, the Applicant tendered his written resignation with the Respondent,
effective 6 May 2022.
[17] By way of letter dated 13 May 2022, the Applicant agreed to extend his notice of
resignation until 11 November 2022, and take on a secondment role with the Respondent.
[18] By way of letter dated 14 November 2022, the Applicant again agreed to extend his
notice of resignation until 28 April 2023 (again in a secondment role).
[19] By way of letter dated 1 May 2023, the Applicant yet again agreed to extend his notice
of resignation until 31 July 2023 (again in a secondment role).
[20] On 28 July 2023, the Applicant, through his lawyers, sent a letter to the Respondent
which (in summary) advised:
a) the Applicant felt well-supported in his employment with the Respondent until
“approximately 14 months ago”;
b) the Applicant had become aware that “his contemporaries” within [the Respondent]
had been receiving salaries higher than his;
c) the Applicant is unmotivated;
d) the Applicant rescinded or revoked his resignation in April 2022, and undue pressure
has been applied to him to continue to sign letters extending his notice of
resignation;
e) the Applicant is now being forced to resign so that he can progress his career;
f) this is a case of genuine redundancy, and he wants a redundancy payment;
g) as an alternative to a redundancy payment, he wants a permanent and on-going role
at the Respondent on a higher salary; and
h) if the Applicant’s demands are not agreed to, he will file an unfair dismissal
application with the Fair Work Commission, and seek that the Respondent pay his
legal costs in respect of such proceedings on an indemnity basis.
[2023] FWC 3149
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[21] On 30 July 2023, the Applicant emailed Ms Lisa Wark, Human Resources Business
Partner, and Mr David McKee, Head of Human Resources (Australia and New Zealand),
advising them that:
a) they should have received his lawyer’s letter (of 28 July 2023) by now;
b) he has headed off to the snow until 3 August 2023;
c) he had hoped to give them a “heads up” about his lawyer’s letter before he went to
the snow, but did not get around to it (either in person, over the phone, or online);
and
d) he is happy to have a chat about his lawyer’s letter when it suits.
[22] On 1 August 2023, the Respondent advised the Applicant that a further secondment has
not been able to be secured, and that his employment would therefore come to an end on 31
July 2023 (as agreed in the 1 May 2023 letter, and referrable back to his resignation on 13 April
2022).
Consideration
[23] In limiting my findings in this matter to the evidence and submissions of the parties that
are necessarily relevant to the determination of the jurisdictional objection raised by the
Respondent (i.e. whether or not the Applicant has been “dismissed”), I have adopted the general
proposition or approach of ‘confinement’ stated by Callinan J in the High Court case
of Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd8:
“But as a general proposition, all civil courts, including intermediate appellate courts,
should confine themselves to the issues which are necessary for the disposition of the
case.”9
[24] The Applicant contends that he revoked his resignation (made in writing on 13 April
2022) on 5 May 2022.10 The difficulty here is that there is no evidence (documentary or
otherwise) of such resignation revocation. The Respondent denies that the Applicant ever made
it aware that he had revoked his resignation.
[25] As stated in paragraph [12] above, once given, an employee’s resignation cannot be
revoked without his or her employer’s approval. Nor can it be said, as a matter of law, that the
Applicant’s acceptance of a secondment (by reference to the 13 May 2022 letter) gives rise to
some form of automatic resignation revocation.
[26] The 13 May 2022 letter acknowledges the Applicant’s resignation, confirms a delayed
end date to that resignation, and identifies that the Applicant’s resignation date has been “future
dated”. It also states:
“Please sign this letter indicating your agreement with your 6 month secondment to Risk
ORM, and your revised end date with [the Respondent], and return it to Lisa Wark.”
[2023] FWC 3149
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[27] The Applicant signed and dated the 13 May 2022 letter, straight below the words: “I,
Stephen Gock, hereby agree to the terms stated in this letter”.
[28] Both of the letters dated 14 November 2022 and 1 May 2023 refer to future dating, or
extending, the Applicant’s original resignation notice period. And both of these letters are
signed by the Applicant, straight below the words: “I, Stephen Gock, hereby agree to the terms
stated in this letter”.
[29] During cross-examination by Mr Minucci, including whilst being taken through each of
the 13 May 2022, 14 November 2022, and 1 May 2023 letters, the Applicant acknowledged
(admitted), the following:
a) he resigned in writing on 13 April 2022;
b) he signed each of the three letters;
c) he understood each of the three letters that he signed;
d) there was no ambiguity from his perspective in the words set out in the letters;
e) each letter acknowledged that the Applicant had resigned;
f) he agreed by signing each of the letters that his effective end date (by way of
resignation) with the Respondent was being extended;
g) what he agreed to in writing (by signing the letters) is fundamentally different to his
evidence as to his interactions with Mr McKee;
h) there is no suggestion in any of the letters that his resignation was withdrawn or
revoked;
i) there is no suggestion of any guarantee with respect to on-going or continued
employment with the Respondent at the end of each secondment or extension;
j) despite there being an active proposal for yet a further secondment with the
Respondent post 31 July 2023, no agreement had been reached, and no further
secondment letter had been issued; and
k) he agreed and understood that his employment came to an end by way of resignation
on 31 July 2023, pursuant to the terms of his resignation on 13 April 2022, and the
terms of the 1 May 2023 letter that he agreed to by signing same.11
[30] In the High Court case of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd12, Gleeson CJ,
Gummow, Hayne, Callinan and Heydon JJ, state:
“[43] More recently, in words that are apposite to the present case, in Wilton v
Farnworth, Latham CJ said:
[2023] FWC 3149
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"In the absence of fraud or some other of the special circumstances of the
character mentioned, a man cannot escape the consequences of signing a
document by saying, and proving, that he did not understand it. Unless he was
prepared to take the chance of being bound by the terms of the document,
whatever they might be, it was for him to protect himself by abstaining from
signing the document until he understood it and was satisfied with it. Any
weakening of these principles would make chaos of every-day business
transactions."
[44] In Oceanic Sun Line Special Shipping Company Inc v Fay, Brennan J said:
"If a passenger signs and thereby binds himself to the terms of a contract of
carriage containing a clause exempting the carrier from liability for loss arising
out of the carriage, it is immaterial that the passenger did not trouble to discover
the contents of the contract."
[45] It should not be overlooked that to sign a document known and intended to affect
legal relations is an act which itself ordinarily conveys a representation to a reasonable
reader of the document. The representation is that the person who signs either has read
and approved the contents of the document or is willing to take the chance of being
bound by those contents, as Latham CJ put it, whatever they might be. That
representation is even stronger where the signature appears below a perfectly legible
written request to read the document before signing it.”
[31] In the Full Federal Court of Australia case of Murphy v Chapple13, it is pointed out the
“essential point” is that “unless some law provides otherwise, parties are free to contract as they
see fit”.14 I note that there is nothing unlawful contained in the 13 May 2022, 14 November
2022, and 1 May 2023 letters.
[32] It follows that I find that the terms of the three letters signed by the Applicant are valid
and enforceable on their terms, as between the Respondent and the Applicant. To repeat the
words of Latham CJ in the High Court case of Wilton v Farnworth15, “unless [the Applicant]
was prepared to take the chance of being bound by the terms of the [letters], whatever they
might be, it was for [him] to protect [himself] by abstaining from signing the document until
[he] understood it and was satisfied with it”. Further, “[a person] may not trouble to inform
himself of the contents of a document, but that fact does not deprive the party with whom he
deals of the rights which the document gives to [them].”16
[33] The 1 May 2023 letter, signed (and agreed to) by the Applicant, plainly identifies that
the Applicant’s employment contract, and his employment relationship, with the Respondent
would come to an end on 31 July 2023. I therefore ultimately find that the Applicant was not
terminated (or dismissed) at the Respondent’s initiative (s.386(1)(a) of the Act), nor was he
forced to resign (s.386(1)(b) of the Act). Indeed, there is no evidence whatsoever of any duress
being applied to the Applicant to sign any of the 13 May 2022, 14 November 2022 and 1 May
2023 letters.
Conclusion
[2023] FWC 3149
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[34] Given that I have found that the Applicant was not “dismissed” by the Respondent
within the meaning of s.386 of the Act, the Commission has no jurisdiction (or power) to
proceed any further with the Applicant’s case. I will therefore issue an Order dismissing the
Applicant’s Application, which will be published contemporaneously with this decision.
DEPUTY PRESIDENT
Appearances:
The Applicant, Mr Stephen Gock, appeared for herself.
Mr Matthew Minucci, of Counsel, instructed by Mr Deegan Fitzharris, Partner, Shanahan
Tudhope lawyers, appeared with permission for the Respondent.
Printed by authority of the Commonwealth Government Printer
PR768812
1 [2023] FWCFB 194.
2 Transcript, PN1-PN10.
3 Mohazab v Dick Smith Electronics (2005) 62 IR 200, at 205 to 206. See also: O'Meara v Stanley Works Pty Ltd
[2006] AIRC 496, at [19] to [23]; Mahony v White [2016] FCAFC 160, at [23]; Khayam v Navitas English Pty Ltd
[2017] FWCFB 5162, at [75]; Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154, at 160.
4 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941. See also Bruce v Fingal Glen Pty Ltd (in
Liq) [2013] FWCFB 5279 and Australian Hearing v Perry (2009) 185 IR 359, at 367-368; [209] AIRCFB 680.
5 Bupa Aged Care Australia Pty Ltd v Tavassoli [2017] FWCFB 3941, at [47].
6 Birrell v Australian National Airlines Commission (1984) 5 FCR 447; [1984] FCA 378. See also Ngo v Link
Printing Pty Ltd (1999) 94 IR 375, Print R7005, AIRCFB (McIntrye VP, Marsh SDP and Harrison C), 7 July
1999, and the authorities cited at 377-378, [12]-[16].
7 Birrell v Australian National Airlines Commission (1984) 5 FCR 447, at 458. See also Saddington v Building
Workers Industrial Union of Australia (1993) 49 IR 323, at 336-337; Emery v Commonwealth [1963] VR 586;
Australian Wool Selling Brokers Employers’ Federation v Federated Storemen and Packers Union of Australia
(1976) 176 CAR 884.
8 (2006) 229 CLR 577.
9 Ibid, at 634, [172].
10 Exhibit A1, at [13].
11 Transcript, PN236-PN316.
12 (2004) 219 CLR 165; [2004] HCA 52.
13 [2022] FCAFC 165.
14 Ibid, at [31]. See also at [40].
15 (1948) 76 CLR 646, at 649.
16 Ibid.
THE WORK COMMISSION
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwcfb194.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb5162.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2013fwcfb5279.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm
