1
Fair Work Act 2009
s.365—General protections
Warren Vosper
v
Commonwealth of Australia, represented by Australian Competition and
Consumer Commission
(C2024/1169)
DEPUTY PRESIDENT BELL MELBOURNE, 8 AUGUST 2024
Application to deal with contraventions involving dismissal – no dismissal – voluntary
resignation in accordance with alternative employment offer accepted before resignation.
[1] The applicant, Mr Warren Vosper, has applied under s 365 of the Fair Work Act 2009
(Cth) (the Act) for the Fair Work Commission (Commission) to deal with a general protections
dispute involving dismissal.
[2] The respondent, the Australian Competition and Consumer Commission (ACCC), filed
its F8A Response to the general protections application, and raised a jurisdictional objection on
the ground that Mr Vosper had not been “dismissed” as is contemplated in s.365(a) of the Act
because he resigned.
[3] Mr Vosper’s last day of work was Friday, 2 February 2024. This is the day that Mr
Vosper states his dismissal took effect. The ACCC agrees that Mr Vosper’s employment ended
on that date but says it did so according to a written notice of resignation submitted by Mr
Vosper on 19 January 2024 (the resignation email), which was in the following terms:
“Dear [Assistant Director, People & Culture]
I’m writing to provide 14 days’ written notice of my decision to resign from the ACCC.
My previous instructions to use annual leave up to and including Friday 2 February 2024
remain unchanged and I consider this date will also be my final day with the ACCC.
I’m yet to hear a response to my email of 8 January regarding my IFA and salary
arrangements - are you able to provide an update on this?
Kind regards
Warren”
[2024] FWC 1989
DECISION
AUSTRALIA FairWork Commission
[2024] FWC 1989
2
[4] Despite the plain and ordinary language of the resignation email, Mr Vosper contends
that he had no real choice but to resign from the ACCC. I do not accept Mr Vosper’s
contentions. In my view, it is very clear that Mr Vosper’s resignation was not in any way at the
initiative of the ACCC or otherwise forced: see 386(1) of the Act. His resignation was
voluntary, albeit under a cloud of unhappiness on Mr Vosper’s account, due to his perceptions
of various grievances he primarily had in relation to an elevated pay rate he believed he should
have received (and for which the ACCC was not prepared to pay) and various other matters.
Factual findings
[5] From 2010, when Mr Vosper started as a graduate with the ACCC, he worked
continuously across the ACCC and the Australian Energy Regulator (AER), primarily focussed
on the energy sector.
[6] The terms and conditions of Mr Vosper’s employment were at all relevant times for this
dispute subject to the Australian Competition and Consumer Commission Enterprise
Agreement 2016-2019 (ACCC Enterprise Agreement). Clauses 11 – 15 of the ACCC Enterprise
Agreement permitted the ACCC and a relevant employee to enter into an ‘individual flexibility
arrangement (IFA)’, which permitted those parties to vary the effect of the ACCC Enterprise
Agreement on specifically listed subject matters but, relevantly, including remuneration. Clause
15 of the ACCC Enterprise Agreement permitted either party to terminate an individual
flexibility arrangement by giving 28 days’ written notice or, where agreed, at any time.
[7] On about 14 October 2019, Mr Vosper and the ACCC entered into an individual
flexibility arrangement (the 2019 IFA). The effect of that arrangement was that Mr Vosper was
paid 5% above the salary cap for his classification under the ACCC Enterprise Agreement.
[8] Mr Vosper’s evidence indicates that he and the ACCC negotiated the 2019 IFA, because
Mr Vosper had been offered a role in the private sector with a higher salary and the salary under
the 2019 IFA was comparable to the other offer. The relevant role was with the ACCC’s Gas
Market Branch.
[9] The 2019 IFA was expressed to remain in place until 30 April 2020 or replaced or
otherwise agreed or terminated. Despite the notional expiry date of the 2019 IFA, Mr Vosper
continued to be paid in accordance with it thereafter. There was no specific evidence that the
parties had expressly ‘otherwise agreed’ to continue its operation, but it is clear that is what
occurred in a practical sense.
[10] In September 2022, Mr Vosper decided to ask for a further increase of his salary above
the existing cap to 15% (increased from the 5% amount he was continuing to receive at the
time). He approached the then General Manager of the Gas Markets Branch, who gave him
general advice about the process.
[11] On 4 October 2022, Mr Vosper lodged his request for an amended IFA. It is generally
fair to conclude that the then General Manager was reasonably supportive of Mr Vosper’s
proposal, although I am less clear to the extent about the salary component.
[2024] FWC 1989
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[12] Later in October 2022, there was a change of personnel within the ACCC’s Gas Markets
Branch. A new General Manager was appointed, which was Ms Melisande Waterford. Ms
Waterford was called as a witness by the ACCC and gave evidence.
[13] Evidently, Mr Vosper perceived the change in leadership at the Gas Markets Branch
negatively. He asserts Ms Waterford would, on occasion, treat staff “disrespectfully”, would
“belittle others”, and behaved in an “intimidating manner. Mr Vosper provides no satisfactory
basis for these allegations at all and I reject them.
[14] One of the few concrete examples of evidence that Mr Vosper did provide beyond mere
assertion about Ms Waterford’s alleged conduct or motive was an email Ms Waterford sent on
4 November 2022. The context of the email related to emails being sent at that time regarding
a project concerning gas production costs. The email recipients included ACCC commissioners
and other staff. In response to a somewhat-widely distributed email that Mr Vosper had sent
overnight, Ms Waterford sent a reply, confined just to him and to Mr Vosper’s immediate
manager, in the following terms:
“Warren,
You have great initiative and full marks for enthusiasm which I love and we can harness
- we can chat more about this stuff later including opportunities that are meaningful for
you.
But for the moment, [Mr Vosper’s direct manager] is pulling together the information
to support a [possibly regulatory outcome] including the material we have on costs for
the [party to whom the material would be sent]. This will go up the line in next days.
Ahead of this I’d like to hold off on peppering the Commissioners with snippets of this
and focus on building a single team case. I’ve held back from stepping in assuming it’s
the last of it, but please let’s call it a day now.
We don't have a lot of time here and everyone has limited bandwidth. Everyone
appreciates your skill at digging out info but at this point it would be most helpful to
pull together a focused single piece – where we have done the work of pulling it together
including the supporting info you have found - rather than lots of threads.
Thanks
Melisande”
[15] Mr Vosper described this email as “offensive” and “unprofessional”. I cannot possibly
see how it could be construed in such a light. The opposite is the case. Moreover, Ms Waterford
was entirely justified in seeking to ensure a concise channel of communications with the highest
decision-makers in the ACCC and I consider her email was a textbook example in doing so
professionally and in a positive tone.
[2024] FWC 1989
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[16] For completeness, I would record that I had the benefit of hearing Ms Waterford give
her evidence. I am entirely satisfied that she acted with propriety and professionalism at all
times in her dealings with Mr Vosper. To the extent of differences between her evidence and
Mr Vosper’s on any matter, I prefer Ms Waterford’s account.
[17] Nonetheless, I accept Mr Vosper reacted negatively to the email sent on 4 November
2022 and I also generally accept Mr Vosper’s evidence where he says at this point, he had no
desire to leave the ACCC. While I consider that Mr Vosper’s perceptions were deeply
misconceived in relation to that event and the events he describes that followed, I accept his
beliefs as genuine.
[18] Such was Mr Vosper’s concern that, on 7 November 2022, he approached the previous
General Manager, including about the email from 4 November 2022.
[19] On 8 November 2022, Mr Vosper elevated his concerns to the Executive General
Manager of the Infrastructure Division at the ACCC, Ms Sarah Proudfoot. Ms Proudfoot
initially encouraged Mr Vosper to speak with Ms Waterford although, later that day, Mr Vosper
was evidently sufficiently upset about aspects of his work that he indicated to Ms Proudfoot he
needed to take leave. Ms Proudfoot agreed and Mr Vosper took the next week off. During this
period, I note that Ms Proudfoot checked in on Mr Vosper.
[20] In December 2022, there was a general 3 percent pay increase that applied from
December 2022 to nearly all ACCC staff. The evidence was that Mr Vosper benefited from that
increase, which appears to have been applied automatically without any adjustment to the 2019
IFA.
[21] By December 2022, Mr Vosper’s evidence was that (from his perspective) it was “clear”
he could no longer work in the Gas Markets Branch and that “it would be in my best interests
to look for other employment opportunities.” That is evidently what Mr Vosper did, because by
January 2023 he had identified a non-ongoing role spanning March to December 2023 at the
Victorian Department of Energy, Environment and Climate Action (DEECA).
[22] In February 2023, Mr Vosper was offered the temporary role with DEECA. For Mr
Vosper to retain his role at the ACCC, he would require approved leave to undertake the
DEECA role. Mr Vosper then approached Ms Proudfoot directly, seeking approval of leave
without pay, which Ms Proudfoot supported. Mr Vosper asserts that he has “reason to believe”
that Ms Waterford “made efforts to block” his access to leave without pay. I reject Mr Vosper’s
claim. It is sufficient to note that I accept the evidence of both Ms Waterford and Ms Proudfoot
about this matter, which demonstrates nothing other than a proper consideration of various
factors that informed a leave request of that type and, in any event, the leave was approved.
[23] Separately, Mr Vosper had been making inquiries through People & Culture regarding
his IFA request.
[24] On 3 March 2023, he received an email from People & Culture attaching a revised IFA,
signed on behalf of the ACCC (the 2022 IFA). In terms of a salary adjustment, the 2022 IFA
was not for the 15 percent amount Mr Vosper had sought but remained at 5 percent (albeit
specifically expressed to capture the general 3 percent increase that applied from December
[2024] FWC 1989
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2022). The 2022 IFA also stated that clause 213 of the ACCC Enterprise Agreement did not
apply. This was a new stipulation.
[25] Section 213 of the ACCC Enterprise Agreement provided for time off in lieu (TOIL)
for overtime, except where the employee had reached the maximum carryover of ‘flex credit’.
Clauses 104 to 110 of the ACCC Enterprise Agreement established a ‘Flextime Scheme’ for
employee classifications APS 1 to APS 6. As an EL 1 classification, Mr Vosper was not entitled
to ‘flex’. While it is not clear from the terms of cl 213 itself, it is a clause that better benefits
APS 6 classifications or below. By way of example, clauses 202 and 204 are overtime
entitlements that only apply to APS 6 classifications or below, which establish an overtime right
in generally orthodox circumstances such as being directed to work outside of ordinary hours.
By contrast, cl 214, which applies to ‘executive level’ employees, provides that overtime will
be paid only in ‘exceptional circumstances’. In short, while both Executive Level classifications
and the APS classifications can each take TOIL in accordance with cl 213, the Executive Level
classifications appear less likely to receive overtime in the first place.
[26] Those observations being noted, the evidence before me indicates that Mr Vosper had
evidently had overtime approved and that he had a reasonable amount of TOIL accrued.
[27] Mr Vosper was upset that the IFA request he had sought months earlier (and understood
would be approved) was at the same amount as his existing IFA and removed conditions
because of the exclusion of cl 213 of the ACCC Enterprise Agreement. Shortly after, Mr Vosper
wrote to People & Culture to request a meeting, which he suggested take place on 10 March
2023. Mr Vosper did not receive a response to his email (it is not clear why), although he did
not appear to follow it up.
[28] On 6 March 2023, Mr Vosper emailed Ms Proudfoot about the 2022 IFA. Ms Proudfoot
indicated she would obtain further information (which she sought to do) before providing an
update.
[29] On 17 March 2023, Mr Vosper again emailed Ms Proudfoot about the 2022 IFA but his
email now also raised an additional issue of various historical expenses he was seeking to claim.
Mr Vosper’s email stated “I incurred these expenses without any expectation I would be
reimbursed, and didn’t expect that I’d even ask. But when I tallied it up, and in the context of
the IFA outcome,” he was now making that request.
[30] The date of 17 March 2023 was Mr Vosper’s final day before commencing leave without
pay. Ms Proudfoot was not in a position to respond to his matters that day but later indicated
she would follow them up. Through oversight, Ms Proudfoot did not take further action,
although neither did Mr Vosper in following up.
[31] Mr Vosper did not sign or return the 2022 IFA. There is some confusion as to what IFA
applied to Mr Vosper from this point. The ACCC proceeded on the basis that the 2022 IFA
applied and Mr Vosper on the basis that the 2019 IFA applied. Ultimately, I do not consider it
matters, for reasons explained more fully below.
[2024] FWC 1989
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[32] Mr Vosper undertook his leave without pay while working at DEECA from 20 March
2023 onwards. At the time that role commenced, Mr Vosper’s anticipated date of return to the
ACCC was about 12 December 2023.
[33] On 17 November 2023, Mr Vosper and Ms Proudfoot spoke in anticipation of Mr
Vosper’s return to the ACCC. It was a general discussion and nothing turns upon it, save that
Mr Vosper stated he was still looking at other roles outside the ACCC in both the private and
public sectors. Ms Proudfoot encouraged Mr Vosper to contact Ms Waterford regarding work
in the Gas Markets Branch.
[34] At that time, Mr Vosper’s evidence was that he “continued to look for other
opportunities because I felt the ACCC had not provided a safe work environment, and it didn’t
appear to have kept my previous role in the Gas Markets Branch despite the fact that I was
granted LWOP arrangements.” While Mr Vosper’s evidence indicates a belief that there might
not have been a role in the Gas Markets Branch, that was not necessarily correct.
[35] In around November or December 2023, Mr Vosper had updated his LinkedIn status to
indicate he was considering looking for other opportunities. Apparently as a result of that, Mr
Vosper was contacted by AGL, the well-known energy generator and supplier. The exact date
is not clear but I infer it was around late November or early December 2023.
[36] Mr Vosper had also received a “verbal offer” from AGL at some point around the time
(the date is unclear), although no offer had been finalised.
[37] I infer that in around the first week of December 2023, Mr Vosper arranged to speak
with Ms Waterford. A meeting by Microsoft Teams was arranged for 10am on 7 December
2023.
[38] On the morning of 7 December 2023 prior to Mr Vosper’s meeting with Ms Waterford,
Mr Vosper had a text message exchange with Ms Proudfoot where he told her about a verbal
offer he had received from AGL and his intention to accept. The exchange included:
Mr Vosper: “Hey Sarah! I’ve received a verbal offer from AGL, which I intend to
accept – details are being finalised. Wanted to give you a heads up – I’ll be catching up
with Melisande this morning and will be letting her know. Hope you’re well.”
Ms Proudfoot: “Congratulations! There’s quite a good crew at AGL – few familiar
faces!”
Mr Vosper: “Yeah totally. Could/should be fun! I’ve said I’m keen for a break, so
probably won’t start till Feb next year.
Ms Proudfoot: …”
[39] At some point prior to the meeting scheduled with Ms Waterford, Ms Waterford was
apprised of (most likely from Ms Proudfoot), or formed the view (correctly I would add), that
Mr Vosper might be intending to leave the ACCC. In advance of the meeting, Ms Waterford
received advice – I infer by People & Culture – that IFAs were now assessed annually and the
2022 IFA (which Ms Waterford understood was operative) would end on 20 December 2023.
After discussion with People & Culture, and Ms Proudfoot, Ms Waterford was not intending to
[2024] FWC 1989
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raise any issue about the IFA if Mr Vosper was resigning but she considered it would need to
be raised if he was intending to stay.
[40] On 7 December 2023, the meeting between Mr Vosper and Ms Waterford took place.
Mr Vosper advised that he had received a verbal offer, although he stated it had not been
finalised nor had he yet made a decision to accept it. Ms Waterford recalls Mr Vosper told her
that the new role would likely not start until February 2024 and, as such, he would not resign
until around then. Mr Vosper also stated it was his intention to take various forms of his leave
entitlements, including possibly taking purchased leave.
[41] Given the possible timing of a resignation, Ms Waterford considered it appropriate to
raise the expiry date of the IFA and she did so. She indicated that the timing of any resignation
may impact on the rate he would be paid out if the IFA was not renewed (as Ms Waterford
considered was the likely scenario.)
[42] Mr Vosper states he “felt [Ms Waterford] was pressuring me to resign prior to 21
December 2023.” While I accept that is how Mr Vosper may have felt, there was no proper
basis for him to do so and I again consider Ms Waterford conducted herself entirely
appropriately during the meeting. During the meeting, it was agreed that Mr Vosper would send
Ms Waterford an email listing his questions.
[43] Shortly after the conclusion of the meeting, Mr Vosper saw an email he received during
the course of the meeting from AGL, which offered him the position of Policy and Regulation
Manager within AGL. The email was not seen by Mr Vosper until after his meeting with Ms
Waterford.
[44] Mr Vosper did not provide his communications with AGL as part of his evidence. It is
not clear why, as they were plainly of direct probative relevance to the issue of whether he
resigned voluntarily or was dismissed by the ACCC. He provided extracts of those
communications following the hearing.
[45] Among other matters, the email Mr Vosper received from AGL at 10.13am on 7
December 2023 was titled “Congratulations! Offer for Policy and Regulation Manager with
AGL!”. The substantive parts of the email stated:
“To accept your offer, please tick the box available and click submit. You’ll then receive
an email confirming you have successfully submitted your acceptance, along with
information on the next steps.
Thank you for joining the change. Together, we’ll make history.
We wish you all the best in your new position.”
[46] An extract of the letter containing the offer from AGL dated 7 December 2023 stated
(my emphasis): “Please indicate your acceptance of this offer as per the instructions provided.
Your electronic acceptance will be your official acceptance of this Employment Agreement.”
[47] The “Start Date” specified in the offer was Monday, 5 February 2024.
[2024] FWC 1989
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[48] Mr Vosper formally accepted the offer from AGL almost immediately. At 10.54am on
7 December 2023, he received an email stating:
“Hi Warren,
Welcome to AGL! You’ll be working alongside some of Australia’s best and brightest
minds.
You will soon receive an email containing a link to your personalised on boarding page,
where you will learn more about AGL and what to do in preparation for your first day.
If you have not received this within the next 7 business days, please let me know.
Your new manager will reach out to you directly about next steps in joining their team!
…”
[49] A few minutes later at 10.57am, Mr Vosper received another email from AGL stating:
“Hi Warren
Thanks for signing your contract so quickly- an official congratulations. Please see
attached Workday onboarding guide to help you if you get stuck with any of the
onboarding tasks.
I’ve let [redacted] know you've signed and he will reach out in terms of first day
arrangements.
Cheers”
[50] At 3.58pm the same day, Mr Vosper sent Ms Waterford an email requesting “guidance
from HR” on the following matters:
“• current leave balances across all types
• how any outstanding leave balances would be treated in the event I leave the ACCC
~Feb[r]uary 2024
• how the enterprise bargaining process could affect me - e.g. the realignment payment,
the impact of the 21 (or 22) December 2023 date
• what salary amount(s) would be used”
[51] Mr Vosper contended that the offer from AGL was conditional upon various checks and
approvals being completed. So much can be accepted, and there was an express term in the
contract with AGL to the effect requiring satisfactory results (as determined in AGL’s
discretion) of any background, reference or medical checks required by AGL.
[52] An email chain produced by Mr Vosper dated 11 December 2023 contains a request
from AGL for Mr Vosper to provide various background details about Mr Vosper. He replied
with that information about one hour later.
[2024] FWC 1989
9
[53] Also on 11 December 2023, Mr Vosper exchanged various emails with People &
Culture at the ACCC about his various queries on 7 December 2023 to Ms Waterford. Among
other matters, the emails from People & Culture:
• Stated that any ‘TOIL’ entitlements Mr Vosper had accrued would forfeit upon his
employment ending.
• Stated that there was currently an IFA due to expire on 20 December 2023. Any
employment separation before this date would see untaken entitlements such as annual
leave be paid at the IFA rate. Any employment separation after this date “will likely
be paid at the substantive classification” rate.
• Provided an up-to-date balance of Mr Vosper’s various leave entitlements at that point.
• Attached a copy of the IFA the ACCC considered was in force, which was the 2022
IFA.
[54] While Mr Vosper was due to return to the ACCC beginning 13 December 2023, he
indicated he wanted to use his TOIL and “purchased leave” from 14 December 2023 and he
inquired how much of those entitlements he presently had (and the answer provided was until
4 January 2024, assuming a 13 December 2023 start.)
[55] On 12 December 2023, AGL sent a further email to Mr Vosper thanking him for the
additional information and stating “We appreciate your assistance in progressing your
background check.” By this stage, the “background” checking appeared to be complete.
[56] By 13 December 2023, Mr Vosper was now formally back at the ACCC, albeit he was
immediately on ‘TOIL’ leave until 4 January 2024.
[57] On 13 December 2023, Mr Vosper sent an email to People & Culture indicating that he
now also wished to take annual leave up to and including Friday, 2 February 2024. That request
was approved.
[58] In his oral evidence, Mr Vosper indicated that all checks with AGL had been completed
within a “week or two” of his acceptance of the offer of employment with AGL. Consistent
with that evidence were the “background” emails with AGL above and, on 19 December 2023,
Mr Vosper received an email from AGL titled “Welcome to AGL!” Among other matters, the
email set out various processes for “onboarding” and it commenced:
“Welcome to AGL! You'll be working alongside some of Australia’s best and brightest
minds.
Please log into your Workday profile to provide further information to get you set up
and ready for day one in your new role. …”
[59] On 20 December 2023, Mr Vosper received an email and letter stating that the basis for
his IFA no longer applied and that his IFA would cease that day. Mr Vosper responded to People
& Culture, querying why the basis of his IFA no longer applied. Mr Vosper was told in response
that Ms Waterford was the most appropriate person to respond to that, albeit then stating that
Ms Waterford was on leave until 16 January 2024 (her last day before taking leave was Friday,
13 December 2023.)
[2024] FWC 1989
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[60] On 8 January 2024, Mr Vosper sent an email to People & Culture, copying in Ms
Proudfoot. That email set out a case as to why a continuation of Mr Vosper’s previous IFA was
justifiable. He also specifically challenged the 2022 IFA as “not valid”, as it was never “signed
or agreed to by myself.” Mr Vosper stated that the only IFA that applied to him was the 2019
IFA.
[61] Mr Vosper did not receive an immediate response to his email sent on 8 January 2024
(and I note that the relevant contact from People & Culture was on leave until 15 January 2024).
[62] Mr Vosper’s first witness statement provides the following:
“On 19 January [2024], I had not received a response from the ACCC. I considered this
was just another example of the course of harsh, unjust and unreasonable conduct by the
ACCC which caused me to incur significant pain and suffering completely
unnecessarily.
As a result, on 19 January [2024], I emailed RP and provided 14 days’ written notice of
my decision to resign from the ACCC.”
[63] A copy of Mr Vosper’s resignation email is set out in paragraph [3] above.
[64] Mr Vosper’s final day with the ACCC was Friday, 2 February 2024 (albeit, he was on
approved leave at the time). He commenced with AGL the following workday.
Consideration
[65] The ACCC submits that the resignation proffered on 19 January 2024 by Mr Vosper
was the reason the employment relationship came to an end. The ACCC submits that just
because an employee such as Mr Vosper may be subjectively dissatisfied with his treatment, or
have a grievance in relation to another employee which he considered serious (which the ACCC
accepted Mr Vosper had such a belief above) but there was no objective material to support a
conclusion that the dismissal was “at the initiative” of the ACCC or the resignation was
“forced”. I accept those submissions.
[66] In Mr Vosper’s reply statement, he contends that there were “several events” during his
employment that resulted in him “having no real choice but to resign” from the ACCC. The
events Mr Vosper identifies were:
• His IFA request in September 2022.
• His request to have various expenses reimbursed.
• His conversation with Ms Waterford on 7 December 2023.
• The ACCC decision to not enter into any further IFA from 20 December 2023.
[67] While not clearly addressed in his written material, Mr Vosper contends that the ACCC
had repudiated its employment contract with Mr Vosper, such that Mr Vosper’s resignation was
an acceptance of that repudiation. I do not accept any of Mr Vosper’s contentions. A number
are simply disingenuous having regard to the chronology of events concerning his dealings with
AGL.
[2024] FWC 1989
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[68] Mr Vosper was plainly unhappy at the ACCC. So much was crystal clear from October
2022. I have already expressed my views on these events, above, but I repeat my conclusion
that there was no improper conduct by the ACCC of any kind that justified Mr Vosper’s feelings
on the matter, although I accept Mr Vosper’s feelings were genuine.
[69] On Mr Vosper’s own evidence, he was “look[ing] for other employment opportunities”
by December 2022 and he initially did so on a temporary basis with DEECA.
[70] Mr Vosper was continuing to openly court other employment toward the end of his
placement at DEECA. His LinkedIn profile indicated as much and he embraced the inquiry
from AGL that began in around November 2023.
[71] An issue that had been bubbling in the background was Mr Vosper’s expectations
regarding the salary he should be paid by the ACCC. Not only did Mr Vosper consider that the
ACCC should pay him 5 percent about the EL 1 cap, his view was that the amount should be
15 percent.
[72] At the meeting on 7 December 2023 with Ms Waterford, it became clear that the ACCC
was not minded to pay any amount above the EL 1 cap.
[73] I find that Mr Vosper had consciously decided to resign by 7 December 2023 to take up
a position with AGL. He did so following active discussions with AGL that resulted in a “verbal
offer” prior to then. This is what he advised Ms Proudfoot of, on the morning of 7 December
2023: “I’ve received a verbal offer from AGL, which I intend to accept – details are being
finalised”.
[74] Mr Vosper formally accepted the offer from AGL on 7 December 2023, consistent with
an intention to voluntarily resign.
[75] While I acknowledge that Mr Vosper was – prudently - holding off formally resigning
until the “details” were being “finalised”, there was no evidence to suggest those steps involved
anything out of the ordinary or would not be completed. In any case, they appear to have been
completed by 11 December 2023 and confirmation of such given by 12 December or 19
December 2023 at the latest. I also consider that Mr Vosper delayed his resignation so as to
ensure he received the full benefit of various accruals that he expected to receive.
[76] There is simply no conduct of the ACCC to this point that could possibly allow a
conclusion that Mr Vosper was later “dismissed”. While Mr Vosper states that being told on 7
December 2023 that the IFAs would cease “felt like” a demotion, there was no demotion. There
was nothing improper, unlawful or in any way coercive.
[77] As the issue of the IFA is a matter that looms large in Mr Vosper’s perception of events,
it is necessary to say something brief about it. The 2019 individual flexibility arrangement was
a temporary agreement between the ACCC and Mr Vosper. It was struck in 2019 where,
evidently, Mr Vosper was in a strong position to secure a salary arrangement exceeding the cap
in the ACCC Enterprise Agreement. But it was not a permanent arrangement. Either party could
terminate it at any time on short notice – 28 days – before its express expiry date.
[2024] FWC 1989
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[78] Mr Vosper sought to further increase the salary component in late 2022. At that time, it
appears he had some support and was entitled to be optimistic that an increase would follow.
But as events transpired, the ACCC ultimately took a different view. While Mr Vosper
complains about the time the ACCC took to respond to his request, he was not worse off because
of the delay (and, based on Mr Vosper’s criticism of the 2022 IFA he was offered, he was better
off because the 2019 IFA continued and he received the 3 percent pay increase from December
2022 regardless.)
[79] While the ACCC considered that the 2022 IFA applied from that point onward and Mr
Vosper believed it was the 2019 IFA, it made no difference to what he was paid and the only
term Mr Vosper had issue about – for ‘TOIL’ – had no effect on his capacity to take time off in
lieu when Mr Vosper returned from DEECA.
[80] By 7 December 2023, the ACCC had indicated that it would not likely continue any IFA
or make a fresh IFA. It was entitled to do so. The absolute highest that could be said about the
ending of the IFA arrangements was, on Mr Vosper’s case, the ACCC did not give 28 days. I
am doubtful that the ACCC was required to do so in circumstances where the end date of the
2019 IFA (assuming it applied) had long passed and the 2022 IFA (assuming it applied) had an
end date of 20 December 2023. The most that could be said of these circumstances was there
was confusion – and possibly disagreement – as to which IFA applied. But even where one
party was ‘right’ and the other ‘wrong’, I do not consider either party was engaging in any
repudiatory conduct (if that party was ‘wrong’) to such a level that was inconsistent with an
ongoing contractual relationship,1 particularly in circumstances where ending the IFA
(whichever version might have applied) required a maximum of 28 days’ notice (if any further
notice was required at all).
[81] I also briefly note Mr Vosper’s claims for various unpaid work expenses he made
enquiries about. Again, there was simply no repudiatory conduct by the ACCC about those
matters. When the claims were (belatedly) first made in March 2023, Ms Proudfoot needed to
look into them. That said, she was provisionally open to approving the company searches
(which, though incurred without authorisation, were sufficiently connected with work) but
probably not the taxi and Uber fares (which also appeared to be incurred without authorisation
but in their case without sufficient work connection or prior approval). These expenses were
not raised in Mr Vosper’s email to Ms Waterford on 7 December 2023.
[82] In submissions filed after the hearing had concluded, Mr Vosper submits:
“The conversations with [Ms Proudfoot] on 17 November 2023 and with [Ms Waterford]
on 7 December 2023 via MS Teams, was not conducive to making me feel welcome
back to my substantive position at the ACCC’s Gas Markets branch. In particular, the
conversation with [Ms Waterford] on 7 December 2023 showed an intention for us to
no longer be bound by a contract. This was confirmed with [a People & Culture] letter
of 20 December 2023. My acceptance of the repudiation amounts to a termination at the
employer’s initiative.”
[83] Mr Vosper’s submission has a significant degree of unreality and I reject it.
[2024] FWC 1989
13
[84] In particular, by the beginning of 7 December 2023 (before his meeting with Ms
Waterford), Mr Vosper had:
• Courted alternative employment, and specifically with AGL;
• Received a verbal offer from AGL;
• Announced to Ms Proudfoot an intention to accept the offer from AGL.
[85] By the end of 7 December 2023, Mr Vosper had:
• Announced to Ms Waterford his intention to start a new role in February 2024 and that
he would resign around then;
• Received a formal offer from AGL;
• Formally accepted the offer from AGL;
• Knew that his start date with AGL would be Monday, 5 February 2024 and, as a
consequence, his last possible day with the ACCC would be Friday, 2 February 2024.
[86] By 13 December 2023, Mr Vosper had:
• Made inquiries with the ACCC’s People & Culture about his leave balance, including
TOIL;
• Been told by People & Culture that his TOIL accruals would not be paid out on
separation;
• Told ACCC People & Culture that he would immediately commence taking TOIL
leave upon his scheduled return to the ACCC (being 13 December 2023) until those
accruals were exhausted;
• Completed the sole background check or follow up from AGL he received;
• Told ACCC People & Culture that, after his TOIL accruals were exhausted, he would
immediately start taking annual leave up to and including Friday, 2 February 2024
(being the final day he would be at the ACCC before starting with AGL).
[87] Mr Vosper then proceeded to undertake the various “onboarding” steps required by
AGL. Despite all of these matters, Mr Vosper is appearing to contend that his mind remained
open and, possibly, he was simply holding the confirmed offer from AGL in his back pocket in
the event that (as was the case), the ACCC did not accede to Mr Vosper’s salary demands and
other claims.
[88] On Friday, 19 January 2024, Mr Vosper gave exactly 2 weeks’ notice for a resignation
that would take effect on Friday, 2 February 2024 and where he would be commencing with
AGL on Monday, 5 February 2024. The resignation was voluntarily given according to a
decision he already made to resign. He was not “dismissed” by the ACCC within the meaning
of either limb of s 386(1) of the Act.
[2024] FWC 1989
14
Disposition
[89] The ACCC’s jurisdictional objection is upheld. It follows that Mr Vosper’s application
must be dismissed. An order2 giving effect to that decision will be separately issued.
DEPUTY PRESIDENT
Appearances:
W Vosper on his own behalf
B Gottlieb of Sparke Helmore Lawyers for the Respondent
Hearing details:
2024.
Melbourne:
May 21.
Printed by authority of the Commonwealth Government Printer
PR777581
1 See, for example, Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115.
2 PR777582.
OF THE WORK C MMISSION THE SEAL
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr777582.pdf
