UNFAIR DISMISSAL APPLICATION

WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

CITATION : 2025 WAIRC 00376

DELIVERED : FRIday, 20 June 2025

FILE NO. : U 109 OF 2024

Applicant

AND

Chanel Wiliams

Respondent

CatchWords : Industrial Law (WA) – Application under s 29(1)(b) of the Industrial Relations Act 1979 (WA) – Jurisdictional objection – Whether employee was dismissed or resigned from his employment – Termination at the initiative of the employer – Application for extension of time under s 29(3) – Application dismissed

Legislation : Industrial Relations Act 1979 (WA)     

Result : Application dismissed

Representation:

Applicant : Mr P Godwell

Respondent : Mr N Williams

Case(s) referred to in reasons:

ABB Engineering Construction Pty Ltd v Doumit (Print N6999, 9 December 1999)

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683

Martin Fedec v the Minister for Corrective Services [2017] WAIRC 00109; (2017) 97 WAIG 273

Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200

O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496

Pawel v Advanced Precast Pty Ltd [1998] AIRC 643

Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154

Reasons for Decision

1         On 6 November 2024, Phillip Godwell (applicant) filed a Form 2 – Unfair Dismissal Application under s 29(1)(b) of the Industrial Relations Act 1979 (IR Act), alleging that he was dismissed from his employment on 2 August 2024, in circumstances that were harsh, oppressive and unfair (application).

2         In her Form 2A – Employer Response to Unfair Dismissal Application (response), Chanel Williams trading as Chanelrae Property Styling (respondent) raised a jurisdictional objection to the application (jurisdictional objection).

3         By the jurisdictional objection, the respondent denied the applicant was dismissed as alleged. The respondent instead claimed the applicant resigned from his employment.

4         In addition, the application was made to the Commission more than 28 days after the applicant’s employment with the respondent came to an end.

5         Under s 29(2)(a) of the IR Act, the Commission is unable to hear an application that is not commenced within 28 days of the alleged dismissal, unless the Commission is satisfied it would be unfair not to hear the matter: s 29(3) of the IR Act.

6         On Friday, 30 May 2025, I convened a preliminary hearing to receive evidence and submissions from the parties on the jurisdictional objection and whether it would be unfair not to accept the application out of time (jurisdictional hearing).

7         In the reasons to follow, I will explain why, having regard to the circumstances of the case, I have decided the jurisdictional objection in the respondent’s favour and made an order dismissing the application.

Issues to be decided

8         For context, it is helpful to extract the provisions of the IR Act that are relevant to the issues to be decided. To this end, those parts of s 29 of the IR Act that give rise to the right of an employee to make an unfair dismissal claim are set out below:

29. Who may refer industrial matters to Commission

(1) An industrial matter may be referred to the Commission —

(a) in any case, by —

…

(c)  in the case of a claim by an employee that the employee has been harshly, oppressively or unfairly dismissed from the employee’s employment — by the employee; and

…

(2) Subject to subsection (3) — (a) a referral under subsection (1)(c) must be made no later than 28 days after the day on which the employee’s employment is terminated; and

…

(3) The Commission may accept a referral that is out of time under subsection (2) if the Commission considers that it would be unfair not to do so.

9         Having regard to these provisions, there are two jurisdictional preconditions an employee is required to establish before they can proceed with an unfair dismissal claim. The first is that an application must be made within 28 days of the date it is alleged an employee was dismissed. Second, an employee must be able to establish they were ‘dismissed’ from their employment.

10      If an employee cannot meet the first pre-condition, s 29(3) permits the Commission to accept an application that is made outside the 28-day time limit (extension of time). Having said this, the Commission is only permitted to grant an extension of time in exceptional circumstances.

11      The principles to be considered on whether to accept an unfair dismissal claim out of time are well settled.  In Malik v Paul Albert, Director General, Department of Education of Western Australia [2004] WASCA 51; (2004) 84 WAIG 683 (Malik), the Industrial Appeal Court generally endorsed the principles that were used to decide whether extensions of time in unfair dismissal claims under the then s 170EA of the Industrial Relations Act 1988 (Cth) in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 (Brodie-Hanns).

12      At paragraph [74] EM Heenan J in Malik said:

 [74] The principles enunciated by Marshall J in Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 are apposite. In that case, his Honour was considering the jurisdiction under s 170 EA of the Industrial Relations Act 1988 (Cth), as it then was, to grant an extension of time. His Honour said, after examining previous applicable authority:

  “I agree with respect, that those principles are appropriate to be applied in the circumstances of this matter.

  Briefly stated, the principles are:

  1. Special circumstances are not necessary, but the Court must be positively satisfied that the prescribed period should be extended. The prima facie position is that the time limit should be complied with unless there is an acceptable explanation of the delay which makes it equitable to so extend.

  2. Action taken by the applicant to contest the termination, other than applying under the Act will be relevant. It will show that the decision to terminate is actively contested. It may favour the granting of an extension of time.

  3. Prejudice to the respondent including prejudice caused by delay will go against the granting of an extension of time.

  4. The mere absence of prejudice to the respondent is an insufficient basis to grant an extension of time.

  5. The merits of the substantive application may be taken into account in determining whether to grant an extension of time.

  6. Consideration of fairness as between the applicant and other persons in a like position are relevant to the exercise of the Court's discretion.”

13      In the context of the present case, the more important consideration amongst those described in Brodie-Hanns involves an assessment of the merits of the application, particularly whether it is likely the applicant was dismissed from his employment.

14      To make this assessment, it is necessary to first explain to the context in which the application was made to the Commission.

Previous Application

15      The circumstances in which the applicant’s employment with the respondent came to an end were the subject of a claim he made to the Fair Work Commission (FWC) on 27 August 2024 under Part 3-1 of the Fair Work Act 2009 (general protections claim).

16      In his general protections claim, the applicant alleged the respondent had unlawfully dismissed him from his employment. One of the remedies the applicant sought was an order for compensation: (applicant’s general protections Form F8 Application p 6).

17      In the response to the general protections claim, the respondent denied the FWC had the jurisdiction to deal with the matter. The respondent claimed the applicant was not dismissed as alleged and that on 2 August 2024 he had verbally resigned from his employment and given two weeks’ notice: (respondent’s Form F8A Response to a general protections application involving dismissal at 1.1 - 1.2).

18      Put simply, the respondent raised the same jurisdictional objection to the general protections claim that is at issue in this application.

General protections claim discontinued

19      The applicant’s general protections claim, like this application, was listed for a hearing on the jurisdictional objection before Deputy President O’Keefe of the FWC on Monday, 28 October 2024 (FW hearing).

20      During the FW hearing it became apparent the respondent was not a national system employer. In other words, it was acknowledged the applicant had commenced proceedings for a dismissal remedy in the wrong jurisdiction.

21      Upon becoming aware of this, the applicant discontinued the general protections claim. He then made the application, which in part explains his delay in commencing his unfair dismissal claim.

Jurisdictional hearing

22      After the application was received by the Commission, an attempt was made to resolve the applicant’s unfair dismissal claim matter by conciliation. When the application was not able to be resolved this way, the matter was listed for a jurisdictional hearing on a date that was convenient for the parties.

23      The jurisdictional hearing was held on Friday, 1 June 2025. The applicant was unrepresented. I gave permission for the respondent’s father Mr Neil Williams to appear for and make submissions on her behalf.

24      Noting the parties were not legally represented and in view of the Commission’s obligations under ss 22B and 26 of the IR Act, I determined that rather than requiring the parties to file fresh evidentiary materials, I would accept the Digital Court Book from the FW Hearing, to decide the jurisdictional objection.

25      The Digital Court Book was accepted into evidence and marked as Exhibit A1. I have, to the extent the information contained in Exhibit A1 is relevant, relied upon its contents to make the factual findings, that are necessary to decide the jurisdictional objection.

26      I also considered the oral submissions the parties made during the jurisdictional hearing, particularly on whether there are reasonable prospects the applicant would likely succeed in establishing that he was dismissed from his employment.

The applicant’s employment

27      The applicant commenced employment with the respondent on or around 10 October 2023. He was hired under the terms of a written contract of employment (contract) to work in the respondent’s property styling business on a part-time basis, as a ‘logistics co-ordinator’: (applicant’s contract Exhibit A1 p 142).

28      Property styling is in effect the work of preparing a property for sale by adding or removing furniture and arranging it to make the property as attractive and appealing to potential buyers as possible.

29      In his role, the applicant was required to collect furniture from a warehouse the respondent operated and to deliver it to empty houses and apartments that were being sold on the open real estate market. The applicant’s duties required him to be both a furniture removalist and installer, as well as having an eye for detail on where the furniture needed to be placed: (see Logistics Co-ordinator Position Description Exhibit A1 pp 28-31).

30      The contract confirms the applicant’s terms and conditions are those set out in the contract, the Road Transport and Distribution Award (award) and applicable legislation, which includes the National Employment Standards in the Fair Work Act 2009 (FW Act).

31      On page 2 (Exhibit A1 p 143), the contract states the applicant was employed to work 30 hours per week, according to the following schedule:

Tuesday  8.30am – 4.30pm = 8 hours

Wednesday 8.30am – 4.30pm = 8 hours

Thursday  9.00am – 3.00pm = 6 hours

Friday  8.30am – 4.30pm = 8 hours.

32      During the applicant’s employment, the days on which he performed his working hours changed. On the date he ceased working for the respondent, the applicant’s working hours were (by agreement) increased to 35 per week: (Exhibit A1 p 7).

33      The applicant’s contract on page 2 also included a term which states

Your hours per week may be averaged over more than one week in accordance with the award (averaging clause): (Exhibit A 1 p 143).

34      It is reasonable to say that the way in which the respondent applied the averaging clause became contentious during the applicant’s employment.

35      The applicant says that on average, he worked more than the 30 hours per week he had agreed to perform under the contract and that he did not receive any additional remuneration for this extra work.

36      The respondent maintains the applicant did not, on average, work more than the ordinary hours that he was expected to perform under the contract. The respondent also says the applicant seldom if ever, worked any overtime: (Exhibit A 1 p 132).

37      The contract contains a term which states:

Penalty rates and overtime

You may be entitled to overtime rates under your award if you work:

• more than your ordinary hours of work
• outside the spread of ordinary hours.

38      By way of payment, the contract says the applicant is to be paid an annual salary of $62,400 per annum, which equates to an hourly rate of $40 per hour.

Applicant’s Submissions

39      The applicant’s submissions were in the main set out in his Outline of Argument which is contained in Exhibit A1 (applicant’s outline). The applicant did not dispute that he resigned from his employment.

40      Rather, the applicant says that he was forced to resign in response to his employer’s conduct, which he said included a disregard for and contraventions of the FW Act, the award and his contract.

41      The applicant’s outline repeats a description of incidents that is provided in the Applicant’s Statement of Evidence (applicant’s statement).

42      The applicant’s outline suggests the various incidents described in the applicant’s statement, formed a pattern of conduct, which in his view:

could not be said to have created an environment in which the expectation would be for any person to stay employed: (Exhibit A1 paragraph 21 p 15).

Respondent’s Submissions

43      The respondent’s submissions were in the main provided in a Summary of Response (respondent’s summary), which is contained in Exhibit A1. In short, the respondent disputed that she had acted in a way to force the applicant to resign from his employment.

44      The respondent submitted the applicant was not dismissed from his employment. She said the applicant resigned voluntarily, following which, he chose to work out a two week notice period.

45      During the jurisdictional hearing, Mr Williams referred to text messages that were exchanged between the applicant and the respondent on Monday, 5 August 2024. These text messages appear on page 33 of Exhibit A1. I have extracted these messages in in full below:

Hi Phill

Just confirming your verbal resignation on Friday and providing your notice.

Your contract states 1 week notice required.

Kind regards

Chanel

Thanks Chanel,

Please note the contract states 2 weeks notice

Regards,

Phil

46      Mr Williams submitted these text messages provide evidence that confirms the applicant had intended to resign from his employment and that his resignation was not something the respondent had initiated: (Transcript p 16).

Termination at the initiative of the employer

47      The task of deciding whether an employee has been dismissed, requires the Commission to consider whether there was a ‘termination at the initiative of the employer’: Martin Fedec v the Minister for Corrective Services [2017] WAIRC 00109; (2017) 97 WAIG 273 (Fedec).

48      A Full Bench of the Australian Industrial Relations Commission in O’Meara v Stanley Works Pty Ltd PR973462 [2006] AIRC 496 (O’Meara) which was referred to and followed in Fedec, extracted from the authorities, the relevant principles that are to be applied to determine what may give rise to a ‘termination at the initiative of the employer.’

49      The authorities referred to in O’Meara and Fedec include the decisions in:

  Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 (Mohazab);

  Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154;

  Pawel v Advanced Precast Pty Ltd [1998] AIRC 643; (Pawel) and

ABB Engineering Construction Pty Ltd v Doumit (Print N6999, 9 December 1999).

50      In the paragraphs below, I have set out the relevant passages from O’Meara that refer to these authorities:

“[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is 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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[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.” 19 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.”

(references removed)

51      Some clear principles emerge from the passages that I have extracted from O’Meara, which include the following:

1. each case will turn on and must be decided on its own facts;
2. all the circumstances giving rise to the termination must be considered and not just the actions of the employer;
3. the seriousness of the issues involved must be considered; and
4. the respective conduct of the employer and the employee must be considered.

Consideration

52      I have reviewed the contents of Exhibit A1. Having considered this material by reference to the principles described in the preceding paragraphs [47] – [51], I am not persuaded Exhibit A1 provides a body of evidence that establishes the applicant was likely placed into a situation where, because of the respondent’s conduct, he was forced to or was left with no option but to resign.

53      I am not satisfied the employment relationship between the applicant and the respondent was terminated at the respondent’s initiative. It is my view the applicant resigned from his employment and that he did so voluntarily.

54      I accept that at the time of his resignation, the applicant had, a number of grievances relating to his employment, which I will elaborate upon in the paragraphs below.

55      I also accept that when he did resign, the applicant likely acted in haste. That finding however does not rise to a level sufficient to conclude the applicant’s employment was terminated at the initiative of the employer.

Dispute between the parties

56      It is my view that in the period from March 2024 until the date of his resignation, the relationship between the applicant and the respondent deteriorated over the way in which the respondent was interpreting and applying the terms of the contract, particularly the averaging clause (Transcript p 10).

57      It seems the applicant formed the view that he would receive no additional payment by way of overtime: (applicant’s outline Exhibit A1 p 9).

58      It appears from the respondent’s summary, that she seems to have formed the view the applicant was not prepared to be flexible on when he would work his ordinary hours to accommodate the needs of the business: (respondent’s summary p 140).

59      The respondent (rightly or wrongly) appears to have had an expectation that because of the averaging clause, she could ask the applicant to work more ordinary hours on days and at times that were not strictly in accordance with, the scheduled hours described in the contract: (respondent’s summary p 138).

60      This it seems, was so the applicant could make up for hours on previous working days when the respondent had let the applicant finish early but had continued to pay him for the hours he was scheduled to work under the contract.

61      In short, I accept the respondent had formed a view the applicant was not prepared to go with the ebb and flow of an arrangement that averaged his working hours.

62      While I am prepared to go so far as to accept that there was, at the date of his resignation, a live dispute between the applicant over the applicant’s employment arrangements and the hours he was working, I am not prepared to make any findings on whether the employer has breached the terms of the contract or committed any other contraventions.

63      These issues are matters for another forum and which I do not have the jurisdiction to resolve in the context of this application.

64      As it is relevant for context, I am only prepared to observe the parties were, on the date of the applicant’s resignation, in dispute over what the applicant regarded were his entitlements under the contract and that this was a source of friction between them.

Verbal resignation on 2 August 2025

65      There is no doubt, the parties’ competing views about the other, and the dispute over applicant’s working arrangements that I have described in the preceding paragraphs [57]-[64] came to a head on Friday, 2 August 2025.

66      The parties agreed that on this date, the applicant overheard a conversation the respondent was having with Alana Scafetta, who also works for the respondent. This conversation happened at a property where the applicant was installing furniture. I accept the conversation the applicant overheard was one in which the respondent was complaining to Ms Scafetta about his work ethic.

67      When the respondent noticed the applicant was within earshot of her conversation with Ms Scafetta, the respondent asked the applicant to go into an adjoining room so she could speak to him. 

68      During the discussion that followed, the applicant said he spoke over the respondent. This is when he said he resigned from his employment. He said he told the respondent he was giving her two weeks’ notice: (applicant’s outline Exhibit A1 p 8).

69      I accept that the circumstances in which the applicant told the respondent he was resigning were not ideal. It does not automatically follow that a resignation given in haste is not effective though.

Resignation confirmed

70      It is my view that any suggestion the applicant did not intend on following through with his resignation was negated by what happened on Monday 5 August 2024 with the exchange of text messages that I referred to in the preceding paragraph [45].

71      The applicant’s text message in reply not only confirmed his resignation, but the length of the notice period he would need to complete and that he intended to work it out.

72      It is my view that when considered objectively, the applicant’s action in sending the response he did, gave force and effect to his verbal resignation. His text message was also sent at a time when the parties would have had a reasonable opportunity to reflect on their respective positions.

73      In other words, if there was any doubt about the whether the verbal resignation the applicant had offered on Friday, 2 August was effective, it was removed with his reply text message to the respondent on Monday, 5 August.  

Other options available

74      While the applicant may have been dissatisfied with the conversation he overheard between the respondent and Ms Scafetta, the tasks he was being assigned, the way in which his working arrangements were being applied, including the respondent’s views on the application of the averaging clause, I do not consider that resigning was the applicant’s only possible recourse.

75      It is my view the situation in this case was much like the example referred to in O’Meara where an employee resigns who is refused a pay rise. As the Full Bench noted in Pawel at [13] a court or a tribunal is unlikely to find a resignation in such circumstances was at the initiative of the employer.

76      The circumstances in the present case are also comparable with those at issue in Kylie Bruce v Fingal Glen Pty Ltd (in Liq) [2013] FWCFB 5279 (Bruce) which involved an employee resigning in response to her employer’s late payment of wages and superannuation.

77      At [24] the Full Bench in Bruce held:

In the circumstances of the present case, resignation was a possible and foreseeable result of the Respondent’s conduct, and in many respects a reasonable response in the circumstances. However this is not itself sufficient to demonstrate that the Applicant’s resignation was in effect a dismissal. Given the other avenues available to the Applicant to pursue her complaints, and taking into account the nature of the Respondent’s conduct, we do not consider that the Applicant’s resignation was objectively the probable result of the Respondent’s conduct, and therefore that the Applicant was forced to resign because of that conduct. In this regard, we note that although there were delays in the payment of wages, the delays were short and the Applicant was paid her wages in full, and that the Applicant did not take any further steps to pursue her complaints other than raising them with the Respondent.

78      It is clear from other text messages that are contained in Exhibit A1 that the applicant is no ‘shrinking violet.’ An examination of these communications reveals the applicant did not lack the capacity to stand up for himself in his dealings with the respondent.

79      This observation is relevant to the extent that I do not accept that the applicant, relative to the respondent, was in such an unequal power position that his resignation was the probable result following his interactions with the respondent either prior to or on Friday, 2 August 2024 or that he was left with no effective or real choice but to resign.

80      As in Bruce, I consider there were other options available to the applicant to address his claimed grievances. By way of example, the applicant could have sought help from an industrial/employment lawyer or union or made a complaint to the Department of Energy, Mines, Industry Regulation and Safety.

81      The applicant could have raised a dispute under the procedure that is contained in the contract or made an application under s 29(1)(d) of the IR Act.

Tit for tat response

82      From what is contained in the applicant’s outline, I have been left with the overwhelming impression that the applicant decided to take the chance the respondent, when faced with the potential disruption to her business his resignation could cause, would try and talk him out of it.

83      It is my view that in the context of their strained employment relationship, the applicant decided to resign as a ‘tit for tat response.’ His action in giving his resignation however was one that carried with it a great deal of personal risk.

84      Once offered, an employer is entitled to accept an employee’s resignation. The potential consequences that flow from a resignation that is either not thought out or is used as a threat, should not be taken lightly.

85      My conclusion in this regard is reinforced by the description of the conversation the applicant says he had with his co-worker Mitchell Raiskums (Mitch). The applicant’s outline states:

Back at the warehouse Mitch asked me if I was actually going to quit, to which I responded I didn’t know and would wait to hear from Chanel over the weekend and see what she has to say.

86      From this, I accept the applicant was conscious of the risk that he had taken with his verbal resignation on Friday 2 August and the applicant was aware that his employment would come to an end, if the respondent did not try and talk him out of it.

87      When viewed objectively, I consider there is little doubt the applicant in this matter resigned from his employment because he was aggrieved.

88      Regardless of whether the applicant resigned from his employment in frustration, or he consciously intended to use his resignation for leverage in his dispute with the respondent, the result is much the same. A resignation given in protest is still a resignation.

Extension of time

89      Noting my finding, the applicant’s employment was not terminated at the initiative of his employer, it follows that I consider the applicant’s unfair dismissal claim would have no prospects of success.

90      Having reached this conclusion, there is no need for me to canvass the other criteria referred to in Brodie-Hanns that I would otherwise be required to consider in determining whether to grant an extension of time.

Conclusion

91      For all the reasons set out in the preceding paragraphs, I have determined the application should be dismissed.

92      An order giving effect to these reasons will shortly follow.