See Fair Work Act s.386
The term dismissed is defined in the Fair Work Act as a situation where:
A dismissal does NOT include where:
Contains issues that may form the basis of a jurisdictional issue.
See Fair Work Act s.386(1)(a)
A termination is at the employer’s initiative when:
There must be action by the employer that either intends to bring the relationship to an end or has that probable result.[2]
The question of whether the act of an employer results ‘directly or consequentially’ in the termination of employment is an important consideration but it is not the only consideration.[3] It is important to examine all of the circumstances including the conduct of the employer and the employee.[4]
The test for repudiation by the employer is whether the conduct of the employer, when judged objectively, showed an intention to no longer be bound by a contract.[5] The employer’s actual or subjective intention is not relevant.[6]
A repudiation of the contract does not bring the contract to an automatic end but gives the affected party the right to terminate the contract.[7] If the affected party accepts the repudiation the contract will end.[8]
Where an employer has repudiated the contract, and an employee accepts the repudiation and an employee exercises their right to terminate the contract, this will amount to a termination at the employer’s initiative.
An employee may engage in conduct amounting to a repudiation by seriously breaching the contract of employment.
Termination at the employer’s initiative requires the termination of the employment relationship, not the contract of employment.[9]
Contains issues that may form the basis of a jurisdictional issue.
A forced resignation is when an employee has no real choice but to resign.[10]
The onus is on the employee to prove that they did not resign voluntarily.[11] The employee must prove that the employer forced their resignation.[12]
A resignation is forced where the employee can prove that the employer took action with the intent (or which had the probable result) of bringing the relationship to an end.[13]
The line distinguishing conduct that leaves an employee no real choice but to resign, from an employee resigning at their own initiative, is a narrow one.[14] The line, however, must be ‘closely drawn and rigorously observed’.[15]
A forced resignation can also be referred to as constructive dismissal.
An employer is generally able to treat a clear and unambiguous resignation as a resignation.[16]
Where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise.[17] In special circumstances an employer may be required to allow a reasonable period of time to pass.[18] The employer may have a duty to confirm the intention to resign if, during that time, they are put on notice that the resignation was not intended.[19]
If a demotion involves a significant reduction in duties or remuneration, it may constitute a ‘dismissal’, even if the person demoted remains employed by the employer.[20]
The employment contract may be repudiated when an employee is demoted, without consent, and suffers a significant reduction in pay.[21] If the repudiation is accepted, either expressly or through conduct, the contract is terminated.[22]
If the demoted employee remains in employment after accepting the repudiation they would be under a new contract of employment.[23] However, a demoted employee may accept the repudiation and remain employed in the demoted position without agreeing to the demotion; that is, under protest or for financial or similar reasons.[24]
If the employee’s contract or industrial instrument contains an express term allowing demotion without termination then any demotion will not amount to a termination.[25]
[2] Barkla v G4S Custodial Services Pty Ltd (2011) 212 IR 248, 256; citing O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23].
[3] Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904.
[4] O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 [23]; citing Pawel v Advanced Precast Pty Ltd (unreported, AIRCFB, Polites SDP, Watson SDP and Gay C, 12 May 2000) Print S5904; Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200; ABB Engineering Construction Pty Ltd v Doumit, (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999.
[5] Elgammal v BlackRange Wealth Management Pty Ltd [2011] FWAFB 4038 (unreported, Harrison SDP, Richards SDP, Williams C, 30 June 2011) [13].
[6] ibid.
[7] Visscher v Giudice (2009) 239 CLR 361, 388 [81].
[8] ibid.; see also Dover-Ray v Real Insurance Pty Ltd (2010) 194 IR 22 [23].
[9] Searle v Moly Mines Limited (2008) 174 IR 21 [22]; citing Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427.
[11] Australian Hearing v Peary (2009) 185 IR 359, 367 [30].
[12] ibid.
[14] Doumit v ABB Engineering Construction Pty Ltd (unreported, AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996) Print N6999, 12.
[15] ibid.
[16] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357, 361‒362 (Murphy JR); citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).
[17] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191.
[18] ibid.
[19] ibid.
[20] A Gerrard v UPS Pty Ltd (unreported, AIRC, Eames C, 19 March 2004) PR944681; Blair v Chubb Security Australia Pty Ltd (unreported, AIRC, Whelan C, 19 August 2003) PR936527.
[22] ibid.
[23] Charlton v Eastern Australia Airlines Pty Ltd (2006) 154 IR 239, 247 [34]; citing Advertiser Newspapers Pty Ltd v Industrial Relations Commission (SA) (1999) 90 IR 211, 218; and Tokyo Network Computing Pty Ltd v Tanaka [2004] NSWCA 263 [6].
[24] Irvin v Group 4 Securitas Pty Ltd (unreported, AIRC, Deegan C, 18 December 2002) PR925901 [17].
[25] Hermann v Qantas Airways Ltd (unreported, AIRC, Whelan C, 3 April 2001) PR903096 [88]; see also Boo Hwa v Christmas Island Administration (unreported, AIRC, Polites SDP, 2 December 1999) Print S1443 [19] in relation to redeployment.