DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emmanouil Karandinas
v
Monash Health
(U2015/4765)

COMMISSIONER RYAN

MELBOURNE, 5 AUGUST 2015

Application for relief from unfair dismissal - jurisdiction – no dismissal – was the applicant forced to resign due to conduct by the employer.

[1] On 13 April 2015, Mr Karandinas (the Applicant) made an application for a remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] This decision concerns an objection raised by Monash Health (the Respondent); namely that the Applicant was not dismissed from his employment.

Factual Background

[3] In late 2014/early 2015 several complaints were raised against the Applicant by co-workers and others. These complaints against the Applicant led to a disciplinary meeting on 25 March 2015 being held with the Applicant and Faye Faulkner, Senior People and Culture Business Partner, Meg Brundell, Monash CATT Manager, Paul Carr, a Senior Social Worker, and John Creamer, HACSU Organiser (the disciplinary meeting).

[4] At the conclusion of the disciplinary meeting the Applicant advised that he would resign his employment with the Respondent. On 26 March 2015 the Applicant formally tendered his written resignation by email. 1

Submissions

[5] The Applicant contends that the employment relationship was ended at the initiative of the Respondent: that he was forced to resign because of the actions of the employer.

[6] The Applicant in its outline of submissions relies on Mohazab v Dick Smith Electronics Pty Ltd 2 and also acknowledges the relevance of the oft-quoted passage from P. O'Meara v Stanley Works Pty Ltd :

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign. 3

[7] The Respondent cited the Full Bench decision in Victorian Association for the Teaching of English Inc v Debra de Laps 4 (VATE v De Laps). In VATE v De Laps the Full Bench set out a comprehensive statement of the relevant law around s.386(1)(b)5. I have followed that decision in my consideration of the present matter.

Consideration

[8] The Respondent contends that the present matter is on all fours with the decision in Ivos v Queensland Property Investments P/L 6 (Ivos). There is much by way of similarity between the present matter and Ivos but there are some significant differences.

[9] The Respondent relies upon the decision in VATE v DeLaps and the authorities cited therein and I consider that that decision provides the proper approach to dealing with present matter. An objective analysis must be undertaken of all of the circumstances including but not limited to the employer’s conduct. As the Full Bench decision in Davidson v Commonwealth of Australia 7 makes clear it is also necessary to consider the appropriateness of the employee’s response to the conduct of the employer.

[10] In this matter the disciplinary meeting involved the Respondent putting a number of allegations to the Applicant, seeking the Applicant’s response to those allegations and then the Respondent drawing conclusions in relation to the allegations and to the consequences flowing from those conclusions. At the meeting the Ms Faulkner, Senior People and Culture Business Partner of the Respondent clearly put it to the Applicant that:

“We believe that the only course of action open to us is termination of employment for misconduct due to aggressive behaviour.” 8

[11] Mr Creamer’s evidence was that he understood that the Respondent was clearly intending to dismiss the Applicant and that in a private discussion with the Applicant he proposed to the Applicant that the Applicant resign his employment. Mr Creamer’s evidence was that he had to persuade the Applicant to resign. Mr Creamer explained that he saw resignation as a way of saving the Applicant from the difficulties associated with trying to find employment if he had been dismissed from his employment. Mr Creamer’s evidence was that he approached Ms Faulkner to ascertain if the Respondent would accept a resignation from the Applicant.

[12] The Applicant’s oral resignation was given and accepted at the meeting.

[13] At no stage in the disciplinary meeting did any of the three representatives of the Respondent put to the Applicant that he needed to resign and if he didn’t he would be fired. At no stage in the disciplinary meeting did any of the three representatives of the Respondent raise with the Applicant or Mr Creamer, his union organiser the possibility of the Applicant resigning his employment. Resignation as an alternative to dismissal was proposed by Mr Creamer.

[14] In Ivos the role and conduct of a union organiser in facilitating a resignation as an alternative to dismissal was described as a novus actus interveniens. Rather than considering the actions of Mr Creamer as a new act intervening it would be better to consider the actions of Mr Creamer and of the Applicant as simply part of the continuum which commenced at the beginning of the meeting and ended with the Applicant’s permanent departure from the workplace at the conclusion of the meeting on 25 March 2015.

[15] In the context of the present matter the Respondent had decided at the meeting that the Applicant was guilty of conduct warranting dismissal. The Respondent had determined that relocating the Applicant to another workplace was not an acceptable alternative to dismissal as the Respondent had already determined that the Applicant could not be trusted not to engage in abusive or threatening behaviour.

[16] Ms Faulkner’s evidence was that the Applicant was given the opportunity to talk with Mr Creamer privately “to discuss why you think that we should not” dismiss the Applicant. I am satisfied that this was nothing more than the Respondent going through the motions of procedural fairness when the Respondent had determined that the only outcome of the meeting would be the dismissal of the Applicant.

[17] However, even though the Respondent was intent on dismissing the Applicant at the conclusion of the meeting this does not lead to the conclusion that the Applicant’s resignation was forced by the Respondent.

[18] In VATE v DeLaps the Full Bench notes the observation of the Full Bench in Bruce v Fingal Glen Pty Ltd, that:

“it is not sufficient that ‘the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee’. There must also be either an intention to force an employee to resign, or else the conduct must be of such a nature that resignation was the probable result.” 9

[19] In the present matter the Respondent neither invited nor sought the resignation of the Applicant nor expected the Applicant to resign. The Respondent had determined its own course of conduct which was to dismiss the Applicant.

[20] The material filed by the Applicant in support of his application in the present matter makes very clear that the Applicant strongly disputes the basis on which the Respondent came to the conclusion that the Applicant’s conduct warranted dismissal. This material is consistent with the replies given by the Applicant to the allegations of misconduct put to him at the meeting on 25 March 2015.

[21] The Applicant did not have to resign his employment at the meeting on 25 March 2013. It would have been reasonable for the Applicant to maintain the position he had adopted in the meeting on 25 March 2015 to the allegations put to him and to let the Respondent carry out its decision to dismiss the Applicant. This application would then have been free of jurisdictional challenges.

[22] Objectively, all of the circumstances of this matter including a consideration of the Respondent’s conduct and of the Applicant’s response to that conduct lead to the conclusion that there is nothing in the Respondent’s conduct which, either, discloses an intention on the part of the Respondent to force the Applicant to resign, or, discloses conduct on the part of the Respondent which was of such a nature that resignation by the Applicant was the probable result.

[23] The resignation given by the Applicant was as a direct result of the actions of Mr Creamer in encouraging the Applicant to consider resignation as a preferable alternative to being dismissed. Nothing done by Mr Creamer can be attributed to the Respondent.

[24] I also note that the Applicant makes no suggestion that Mr Creamer acted inappropriately or that Mr Creamer applied any pressure to the Applicant. Mr Creamer’s own evidence, which I accept, is that in advising the Applicant to consider resigning, he was acting in the best interests of the Applicant.

[25] In the present matter the Applicant freely decided on the advice of his union organiser to resign his employment.

[26] The termination of the employment relationship between the Applicant and the Respondent was brought to an end by the Applicant freely resigning his employment. There was no dismissal of the Applicant by the Respondent within the meaning of s.386(1)(b) of the Act. As the Applicant was not dismissed the Applicant’s application for an unfair dismissal remedy is dismissed.

The seal of the Fair Work Commission and the Member's signature