1
Fair Work Act 2009
s.394—Unfair dismissal
Kee Fook Edmund Chia
v
Australian Catholic University
(U2024/973)
DEPUTY PRESIDENT O’NEILL MELBOURNE, 12 JULY 2024
Application for an unfair dismissal remedy – jurisdictional objection – no dismissal –
resignation – jurisdictional objection upheld – application dismissed.
Introduction
[1] Dr Kee Fook Edmund Chia has made an unfair dismissal application alleging that he
was unfairly dismissed by the Respondent, Australian Catholic University (ACU). The ACU
contends that Dr Chia resigned and was not dismissed. Dr Chia contends that he did not resign,
or if he did, it was not voluntary as he was forced to do so.
[2] The issue was dealt with at a hearing on 30 April 2024. The Respondent was granted
permission to be represented. After considering the views of the parties, I considered that a
hearing was the most effective and efficient way to conduct the matter.
[3] I have concluded that Dr Chia’s employment ended by his voluntary resignation and not
from any conduct of the ACU. As Dr Chia was not dismissed, he is not eligible to make an
unfair dismissal application.
Consideration
First Resignation
[4] Dr Chia has been a Senior Lecturer in the School of Theology since 2011 with both
teaching and research responsibilities. He was approved to work from a non-campus overseas
location for Semester 1 of 2022.
[5] In 2022, to deal with a personal situation, Dr Chia had to be in the Philippines where his
wife resided. In late May 2022 he sought approval for an indefinite remote working
arrangement, which was refused. He then requested long service leave, which was also refused
due to the difficulties the ACU faced given the short period of notice. As he “desperately needed
to be abroad in Sem. 2 of 2022”, Dr Chia then “voluntarily submitted a notice of resignation to
[his] supervisor stating [his] intention to cease employment at the beginning of Sem 2. 2022.”1
[2024] FWC 1416
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1416
2
[6] Further discussions then took place between Dr Chia and his manager, Dr Jacobs-
Vandegeer.
[7] The Respondent’s evidence is that the parties agreed that Dr Chia would be allowed to
work remotely for Semester 2 2022, on the basis that he would then take annual leave and long
service leave after which his resignation would take effect (in line with his desire to remain
overseas).2
[8] On 17 June 2022, Dr Jacobs-Vandegeer told Dr Chia that he needed him to email his
resignation. Dr Chia’s evidence is that he did not think much about the request and simply did
as he was asked. He says that he was “too surprised to respond as resignation had already
been taken off the table … but I trusted that his request was solely for the purpose of securing
permission for me to continue teaching from abroad.”3
[9] On 17 June 2022, shortly after the meeting, Dr Chia sent the requested email:
“After due reflection and consideration of my personal circumstances, I wish to register
my intention to take early retirement. Please accept this email as my official notice
signalling my resignation from service at ACU as of 2 January 2023.” (emphasis added)
[10] A further email was forwarded a few minutes later, which Dr Chia requested be treated
as the operative email:
“After due reflection and consideration of my personal circumstances, I wish to register
my intention to take early retirement. Please accept this email as my official notice
signalling my intention to resign from service at ACU after exhausting my leave balance
that I will begin taking as of 2 January 2023.
Many thanks for your kind support and understanding.” (emphasis added)
[11] In cross-examination it was put to Dr Chia, that the reason for the change from resigning
as of 2 January 2023 until after exhausting his leave commencing 2 January 2023, was because
of the tax advantages of taking leave whilst still employed. Whilst Dr Chia initially denied this,
when he was cautioned that he had filed material indicating this, he agreed that this was part of
his reasoning to change the date of his intended retirement.4
[12] Dr Jacobs-Vandegeer forwarded the Applicant’s resignation and remote working
request to the relevant delegate, which was then approved by the Vice-Chancellor.5
[13] The Respondent submits that the email reflects the agreement that had been reached. Dr
Chia expressed an intention to resign in May 2022, and confirmed his resignation on 17 June
2022, on the basis that he would be teaching abroad for Semester 2022 and would take annual
and long service leave in 2023. The Respondent submits that if Dr Chia had not submitted his
resignation in June 2022 and the University had to plan on the basis that he was an ongoing
staff member (and the University was not able to take steps to replace him), his leave request
would have required significantly more consideration, and it is unlikely that it would have been
approved.6 In short, the arrangements were only supported because they were transitional
[2024] FWC 1416
3
arrangements prior to his retirement and which the University approved to accommodate Dr
Chia’s personal circumstances.7
[14] Dr Chia’s evidence is that he agreed to stay on if he was allowed to teach from abroad.8
Given that the Respondent subsequently approved his request to teach abroad in Semester 2, he
considered his resignation of 5 June 2022 was “effectively cancelled and invalidated”.9
[15] Dr Chia also “knew that any intention to resign had to be eventually formalised through
Staff Connect (which only [he could] submit).”10 This is a common thread in Dr Chia’s evidence
and submissions. In short, Dr Chia’s belief is that any ‘informal’ resignation is of no effect, and
that a resignation is only ‘formal’ when he personally completes the administrative process of
completing an Employee Separation form online in the Staff Connect system.11 He believes
that the Notice of Separation is the only valid document certifying the end of employment.12
[16] Completion of the Employee Separation form is an internal administrative process,
which feeds into other internal processes, such as when an employee’s IT systems access
ceases.13 Whilst the ACU’s usual practice is for an employee to complete an Employee
Separation form, it is permitted and not unusual for a supervisor to process the form on an
employee’s behalf. The ACU’s Notice of Resignation or Retirement Policy14 requires an
employee to provide a written resignation but does not require an employee separation form to
be completed before a resignation can be finalised.
[17] I find that Dr Chia’s email of 17 June 2022 constituted his resignation with effect from
the date his leave balances were exhausted. In the circumstances, I do not find that it was no
more than an intention to resign at some indeterminate point in the future, noting the reference
to it being ‘official notice’. I also do not accept Dr Chia’s submission that he did not state that
he would resign immediately upon the exhaustion of his leave. Dr Chia’s resignation was the
basis upon which the ACU was prepared to approve his working remotely for Semester 2 and
is the most plausible explanation for Dr Jacobs-Vandegeer’s request for Dr Chia to send the
resignation email. It is not at all plausible that the request for Dr Chia’s resignation came ‘out
of the blue’ and not as part of an agreement the two men had reached, whereby Dr Chia would
be allowed to work remotely, then retire when his leave balances were exhausted. Although Dr
Chia did not believe his resignation would be ‘formal’ unless and until he completed an
Employee Separation form, that does not alter the effect of his email.
Second Resignation
[18] Dr Jacobs-Vandegeer left ACU at the end of 2022 and Associate Professor Michael
Buchanan was appointed to that role.
[19] On 8 February 2023, Professor Nestor was contacted by an internal human resources
employee who advised that Dr Chia’s file indicated he was to resign effective 2 January 2023,
but no resignation had been entered into Staff Connect. Professor Nestor was asked to confirm
whether Dr Chia had resigned and the effective date, and that either Dr Chia or his supervisor
would need to enter the resignation into Staff Connect. The same day, Ms Rainbird (Associate
Director, HR Appointments and Services), advised that Dr Jacobs-Vandergeer had accepted Dr
Chia’s resignation and asked him to put it in the system. 15
[2024] FWC 1416
4
[20] On 20 February 2023, Professor Nestor emailed Dr Chia, outlining the details of the
resignation, that no Employee Separation form appeared in the system, that his applications for
long service leave for 31 July 2023 to 3 November 2023 and 27 February 2023 to 16 June 2023
were pending approval, and that the permission to work from a non-campus offshore work
location had lapsed on 2 January 2023. Professor Nestor requested a meeting to clarify the
situation.16
[21] On 21 February 2023, Dr Chia forwarded an email to Professor Nestor he had previously
sent to Dr Jacobs-Vandegeer around October 2022. Dr Chia indicated that he wished to clear
his leave first (taken on half-pay, to extend his service and also pay less on taxes). He indicated
that he would put in his retirement request only later, about 3 or 4 months before his leave
ended.17 The email also indicated that he had a “rethink” of his situation and did not want to be
pressured into submitting his resignation.
[22] On 24 February 2023, Professor Nestor emailed Dr Chia advising that as he had
provided notice of his intention to resign on 17 June 2022, the required notice requirement had
been met, and gave him instructions on how to complete the Employee Separation Form,
explained the next steps including that the form would be sent to his supervisor for approval,
and that his existing leave requests would need to be deleted and re-entered, given the change
in supervisor, so that Mr Buchanan could approve them. Dr Chia responded on the same day:
“Thanks for the advice on next steps. I’ve resubmitted my leave requests and will submit
the resignation when I get to the Philippines. I leave Melbourne later tonight. Thank
you very much for everything.”18
[23] Dr Chia’s evidence is that his reference to submitting his resignation in the email was a
reference to submitting the Employee Separation form, but that he had no intention of doing so
and was ‘buying time’ hoping that his leave requests would be approved. Whilst he
acknowledged this was a lie, he described it as a “lie in the face of an oppressive situation” and
that “according to moral philosophy, you have the duty to tell the truth, but only to those who
deserve the truth”. Dr Chia believed that Professor Nestor did not deserve the truth.19
[24] On 1 March 2023, Professor Nestor forwarded an email to Dr Chia as follows:
Dear Chia,
Sincere greetings to you and I do hope all is well?
Chia, having had an opportunity to consult with HR (here Ms Danielle Kelson) I now
write to advise further on the way forward –
1. Please provide an e-mail, addressed to Michael and I, indicating clearly that you
wish to resign from your position at ACU following the expiration of current leave
entitlements.
In addition, I suggest you liaise directly with Danielle to complete and formally lodge
an Employee Separation form. Your full leave calculations and final day of work can be
calculated through this process.
[2024] FWC 1416
5
2. Current requests for long service requests (with Half-Pay) will then be approved.
Chia, I hope these steps and advice are clear and that you will be in a position to
complete the actions outlined under item 1 above in the coming days.
[25] Following this on 6 March 2023, Dr Chia emailed Professor Nestor confirming his
resignation as follows:
“This email is to inform you of my wish to resign from ACU upon exhausting all the
leave that I am entitled to.”
[26] Dr Chia’s evidence is that he was being bullied into submitting his resignation, and that
he only sent this email because he was being ‘held to ransom to send it and had sent it out of
fear that my leave requests will be not be approved.”20 After waiting for a few days and his
leave remaining unapproved, he “left me with no real choice but to acquiesce to the dean’s
demand. I desperately needed my leave approved. The leave had already begun by then and
remained unapproved despite my applying for them four months earlier.”21 Accordingly, he
submits the email was not voluntarily given and cannot be treated as a resignation.
[27] I accept Professor Nestor’s evidence that there was no causal connection in his email of
1 March 2023 between the request that Dr Chia provide an email clearly indicating his
resignation and the approval of the long service leave applications.22 Professor Nestor does not
approve Dr Chia’s leave, and there was only a short delay between the request that Dr Chia
resubmit the applications because of the change in supervisor, and their approval.23 Professor
Nestor rejected the suggestion that he had instructed Mr Buchanan not to approve the leave
until Dr Chia sent the resignation email.24
[28] I find that Dr Chia’s email of 6 March 2023 was a clear and unambiguous resignation
from his employment, to take effect at the date his leave entitlements were exhausted. There is
simply no basis to conclude that the resignation was not voluntarily given but was the product
of coercion and force on the part of the ACU. There is also no suggestion that it was given in
the heat of the moment.
[29] Almost immediately upon receipt of Dr Chia’s email on 6 March 2023, his leave was
approved. Dr Chia did not then seek to revoke his resignation nor convey that he felt pressured
to submit it. Dr Chia submits that he feared that the ACU would cancel his leave, forcing him
to return from abroad if he did so.25
[30] On 21 March 2023, the ACU advised Dr Chia that it would take the email as his “formal
resignation from the Australian Catholic University at the end of [his] currently approved leave
period, which will be 10 January 2024”.26 Dr Chia did not object to, or otherwise respond to
this email until approximately a month later. Dr Chia’s evidence is that he did not do so because
he “genuinely feared that he would cancel my leave, forcing me to return from abroad” and
that he “was honestly afraid that the dean would further abuse his power and cancel my leave
should I indicate my refusal to obey his dictates.”27 There is no basis to make any finding that
Dr Chia was coerced to resign from his employment.
[2024] FWC 1416
6
[31] In any event, Dr Chia did not believe that his resignation could take effect unless he
personally lodged the Employee Separation form on Staff Connect.28 In essence, Dr Chia
thought that he could tell his employer that he resigned, even if he had no intention of meaning
it. This is simply not the case. An employee can resign from their employment at any time. It
is a unilateral act, that requires no approval by the employer. The existence of internal
administrative processes does not override an employee’s right to choose to end their
employment. In other words, the completion of the Employee Separation form does not bring
the employment relationship to an end, it is the communication by the employee of their
resignation.
[32] Further, the question of whether a resignation did or did not occur does not depend on
Dr Chia’s subjective intention or understanding. Rather, it depends on what a reasonable person
in the position of the parties would have understood was the position, based on what each party
had said or done, in light of the surrounding circumstances. It is the conduct of the employer
that is the essential element.29 The ACU would, in light of the extensive background, have
clearly understood this to be confirmation of Dr Chia’s resignation.
[33] As Dr Chia had not completed the form despite multiple requests to do so, on 13 April
2023, Mr Buchanan submitted it on his behalf.30 Dr Chia immediately queried this action. On
20 April 2023, Dr Chia said that he had a “rethink” of his situation and “respectfully ask[ed]
that [his] notice of resignation be revoked for now.”31 Dr Chia clearly understood that he had
given notice of his resignation, otherwise there would be no need for it to be revoked.
[34] On 12 April 2023, the ACU sent out an organisation wide email which set out an
expression of interest for voluntary redundancy. Dr Chia’s evidence is that if his employment
had not ended, he would not have applied for voluntary redundancy.32 Whilst I consider it
unlikely that the call for expressions of interest had no bearing on Dr Chia’s position, it is not
necessary to determine this question.
[35] Dr Chia’s employment ended on 10 January 2024, following the exhaustion of his leave
entitlements.33
[36] In making these findings, where there is a conflict in the evidence between Dr Chia and
Professor Nestor, I have preferred the evidence of Professor Nestor. His evidence and actions
of the ACU are all consistent with an agreement being entered whereby Dr Chia’s resignation
would take effect upon exhaustion of his leave. I did not find Dr Chia a compelling witness.
His evidence was almost entirely self-serving, he made few concessions and at times, only when
presented with contrary evidence. Further, as noted above, he conceded that he had been
dishonest in his communication with the ACU. Whilst the duty to tell the truth in moral
theology may be qualified, there was no reasonable basis for him to lie to Professor Nestor. He
did so because he erroneously believed that it served his interests to do so.
Conclusion
[37] Dr Chia voluntarily resigned on 17 June 2022, as part of an agreement to enable him to
be approved to work overseas from an off-campus location. He confirmed on 24 February 2023
that he would submit the Employee Separation Form imminently. He confirmed his resignation
on 6 March 2023 in his email to Professor Nestor.
[2024] FWC 1416
7
[38] Dr Chia was not forced to do so because of any conduct by the ACU. His resignation
was clear and unambiguous, and the ACU merely acted on it.
[2024] FWC 1416
8
[39] As Dr Chia was not dismissed within the meaning of section 386 of the Act, he is not
entitled to make an unfair dismissal application. The application must therefore be dismissed.
DEPUTY PRESIDENT
Appearances:
K Chia, the Applicant, appearing on his own behalf.
D Williams of MinterEllison, with permission on behalf of the Respondent.
Hearing details:
2024.
30 April.
Printed by authority of the Commonwealth Government Printer
PR775490
1 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, Digital Hearing Book (“DHB”) p.59
2 Respondent’s Outline of Submissions (JO), DHB p.143
3 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.60, Transcript PN416-421.
4 Transcript PN386-394.
5 Witness Statement of Professor Nestor, DHB p.177.
6 Ibid, DHB p.155-156.
7 Ibid.
8 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.59.
9 Ibid.
10 Ibid, p.60.
11 See for example, DHB p.11.
12 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.45.
13 Witness Statement of Professor Nestor at [50], DHB p.160-161.
14 Ibid, Exhibit DN-21, DHB p.222.
15 Ibid, DHB p.156.
16 Ibid, DHB p.156; Exhibit DN-10, DHB p.183.
17 Ibid, Exhibit DN-11, DHB p.185
C MISSION THE FAIR WORK THE SEAI
[2024] FWC 1416
9
18 Ibid, Exhibit DN-13, DHB p.192
19 Transcript PN658-666.
20 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.49.
21 Ibid.
22 Transcript PN1202-1205.
23 Transcript PN1208-1215.
24 Transcript PN1216-1217.
25Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.55
26 Witness Statement of Professor Nestor, Exhibit DN-15, DHB p.197.
27 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.55.
28 Applicant’s Submission in Response to the Respondent’s Jurisdictional Objection, DHB p.55.
29 Bupa v Tavassoli [2017] FWCFB 3941 at [47].
30 F2, DHB p.8.
31 Witness Statement of Professor Nestor, DHB p.206
32 Transcript PN828-874.
33 Witness Statement of Professor Nestor, DHB p.158.
https://www.fwc.gov.au/documents/decisionssigned/html/2017fwcfb3941.htm