Andre De Menezes Ribeiro v Casino Canberra Limited [2020] FWC 1713

1 Fair Work Act 2009 s.394—Unfair dismissal Andre De Menezes Ribeiro v Casino Canberra Limited (U2019/10446) DEPUTY PRESIDENT KOVACIC CANBERRA, 1 APRIL 2020 Application for relief from unfair dismissal – Applicant not dismissed – application dismissed. [1] On 17 September 2019 Mr Andre De Menezes Ribeiro (the Applicant) made an application under s.394 of the Fair Work Act 2009 (the Act) by telephone alleging that he had been unfairly dismissed by Casino Canberra Limited (the Respondent) on 28 August 2019. [2] In its Form F3 – Employer Response to Unfair Dismissal Application the Respondent raised a jurisdictional objection to the application, contending that the Applicant had not been dismissed but resigned effective 1 September 2019. [3] The application was heard on 4 February 2020. At the hearing the Applicant appeared on his own behalf, while Mr Shane Maundrell, Casino Canberra’s Compliance Manager and In-house Counsel, appeared for the Respondent. [4] The Applicant gave evidence on his own behalf together with:  Mr Michael Wood, a casual Security Officer employed by the Respondent; and  Mr Nathan Kingsley, a Security Shift Manager with the Respondent. [5] Evidence for the Respondent was given by:  Mr Brendan Haverfield, the Respondent’s Director of Security; and  Mr Joel Muyot, a Security Shift Manager with the Respondent. [6] For the reasons set out below, I have determined that the Applicant’s employment was not terminated on the Respondent’s initiative. In short, the Applicant was not dismissed. As such, s.385(a) of the Act is not satisfied and the Applicant cannot have been unfairly dismissed. The Applicant’s application will therefore be dismissed. [2020] FWC 1713 DECISION -- 1 of 16 -- [2020] FWC 1713 2 Background [7] The Applicant commenced employment with the Respondent on 13 December 2012 and at the time his employment ceased was a full-time Security Officer. [8] On 30 July 2019 the Applicant received an offer of engagement as an ongoing Australian Public Service employee with IP Australia (IPA). The offer was for a full-time role as a Trade Mark Examiner and attracted a salary of $66,483 per annum. As at 26 June 2019 the Applicant’s year to date gross pay with the Respondent for the financial year 2018-2019 was $69,395.79.1 [9] On 1 August 2019 the Applicant met with Mr Haverfield. While much of the detail of that meeting is disputed, it is not disputed that at that meeting the Applicant handed the following letter to Mr Haverfield: “To Brendan, I am presenting you with this letter of resignation from my full-time duties within the Casino Canberra security department, effective 1/ 08/ 2019. I am providing you with 4 weeks' notice, as per section 2.9.3 in the EBA, as I have been employed here for over 5 years. This will allow 1 month of remaining full-time duties, terminating on the 1st of September 2019, where I will then continue my duties as a casual officer when required.”2 [10] Mr Haverfield wrote on the letter “Received” and initialled and dated the letter. [11] On 4 August 2019 the Applicant emailed his acceptance of the offer of engagement to IPA’s Recruitment Team. [12] On 19 August 2019 Mr Haverfield signed a Separation notice3 in respect of the Applicant. The Separation notice was also signed on the same day by the Respondent’s General Manager/CEO and the Director of People (who were the same person in this instance). The Separation notice stated inter alia that the Applicant’s last day was “1/9/19”, the type of separation was “Resignation”, the reason for separation was “Other job offer” and in the section headed ‘HR use only’ cited “28/8” against the item “Send email to staff regarding final clearance (if applicable)”. The Separation notice describes the process as follows: “This form is to be used to confirm staff separation. When the completed form is received by HR, this form will initiate the separation process. The Department Head / Manager must (1) complete this form and (2) return the completed form to Director of People with all relevant documentation such as the resignation letter …”4 [13] In subsequent developments, on the afternoon of 28 August 2019 Ms Eileen Cheng, the Respondent’s HR/Licensing Coordinator, emailed the Applicant requesting that he complete a final clearance by 1 September 2019. The Applicant responded to Ms Cheng that night as follows: -- 2 of 16 -- [2020] FWC 1713 3 “Hi Eileen thankyou for your email, however I beleive [sic] there has been a slight misunderstanding. I am ceasing duties at the end of this month as a fulltime officer, but will remain employed on a casual basis. If you require me to sign a new contract or paperwork for that, please let me know and I will come in to see you.”5 [14] The Applicant sent a further email to Ms Cheng on 29 August 2019 enquiring as to what was happening in respect of the issue raised in his previous email. [15] On 2 September 2019, Mr Haverfield sent the following email to the Applicant: “Hi Andre, I have tried calling you on your mobile but I can’t get through. Further to your email below I would like to clear up what you feel maybe a slight misunderstanding. When you tendered your resignation to me on the 1st August 2019 you said that you would be happy to stay on as a casual security officer. I made it clear to you at the time that we may not need your services as a casual as I had previously interviewed and made offers to three casual security offices [sic]. Since then we have also filled four full time positions for security officers. At this stage we will not be requiring any more casual officers. From time to time we advertise on SEEK when we have vacant positions so keep an eye out for this and feel free to apply when the situation arises. In the meantime it would be appreciated if you could come in to staff entry and complete your final clearance.”6 (Formatting as per original) [16] On 3 September 2019 the Applicant emailed Mr Haverfield in the following terms: “Hello Brendan, I was busy driving at the time of your call. I tried calling you back to discuss the email you had sent, but you appeared unavailable. In regards to your first point, it appears that you believe that I felt there was misunderstanding over the outcome of our discussion, however, this is not the case. On the contrary, I had left our meeting with what to me was a very clear impression of the matter we had discussed and how we would move forward from there. You stated to me at the time that you were looking to hire a few full-time guards, one of whom wasn’t available to start until October. I kindly offered to drop to casual to allow you to hire the new staff members you were contemplating to free up a full-time position, with a view to continuing as a casual guard to assist in covering manning where needed. You stated it would be fine but you did not want another casual guard that was only available on Saturdays and Sundays, I agreed, and we then both concluded I would commence casual duties on the 1st of September. Although the meeting concluded with what I believed to be a clear understanding of the matters we discussed, it seems, if I am to judge by the contents of your recent email, that you came to a very different conclusion. Unfortunately, in regard to -- 3 of 16 -- [2020] FWC 1713 4 conversations that have taken place between us, this is not the first time this has occurred. Moving forward, I accept that you have the final decision on this matter and it appears to me at this point that you have already made up your mind about my departure from Casino Canberra.”7 [17] Mr Haverfield responded to the Applicant on 5 September 2019 thanking him for his response and asking when he would be available to come in and complete his final clearance. [18] As previously mentioned, the Applicant made his unfair dismissal application by telephone on 17 September 2019. The Applicant’s case [19] The Applicant in his written submissions set out the chain of events commencing with his meeting with Mr Haverfield on 1 August 2019 until shortly after the cessation of his employment on 1 September 2019. The Applicant posited that Mr Haverfield signing and annotating his resignation letter as “Received” amounted to a confirmation that the conditions stated therein would commence in four weeks from the date received. The Applicant also contended that any reasonable person was aware that signing a document was agreement to being bound to the contents of the document. Among other things the Applicant also submitted that:  had he known that Mr Haverfield would not offer him employment as a casual employee he would have retracted his resignation;  at no point in the meeting of 1 August 2019 did Mr Haverfield say that his services were no longer required;  the chain of events clearly showed that he had been terminated unknowingly;  after his meeting with Mr Haverfield on 1 August 2019 multiple steps were taken by the Respondent to facilitate his move to casual employment;  the letter he gave to Mr Haverfield on 1 August 2019 was a change of status letter not a termination letter, disputing that it was a resignation letter;  a number of managers in the Security Department were under the strict belief that Mr Haverfield had agreed to him changing his status to a casual employee;  his email to Ms Cheng on 28 August 2019 clearly demonstrated that he was under the impression that his change to casual employment was going ahead;  the phrase “may not need your services” in Mr Haverfield’s email of 2 September 2019 was ambiguous in that it demonstrated that there was a possibility that he may be engaged as a casual employee;  a valid termination notice would have clearly stated that he no longer wished to work for the Respondent and was resigning from all employment duties with it; -- 4 of 16 -- [2020] FWC 1713 5  any reasonable person would assume that if they are offered casual shifts which are reflected in the relevant rosters that they had been offered casual employment; and  it was highly suspicious that Mr Haverfield did not seek to clarify with him any misunderstanding regarding his employment status after the meeting he had with Mr Muyot on 26 August 2019. [20] The Applicant also disputed the description of his 1 August 2019 meeting set out in Mr Haverfield’s witness statement, contending that they had spoken for a few minutes before he provided his letter to Mr Haverfield. The Applicant also pointed out that Mr Haverfield did not contact him until 2 September 2019 thereby leaving him no option to retract his resignation, adding that he assumed Mr Haverfield would have contacted him to clarify the situation once he became aware that he thought he was moving to casual employment. [21] At the hearing the Applicant maintained that Mr Haverfield had offered him casual employment, adding that he assumed everything was going ahead as agreed until he received Ms Cheng’s email of 28 August 2019. The Applicant also submitted that, while his letter was not as clear as it could have been, he had a verbal agreement with Mr Haverfield regarding casual employment when Mr Haverfield asked him what his availability was for casual shifts. Beyond that, the Applicant largely reiterated aspects of his written submissions. The Applicant concluded by stating that he believed he had been unfairly dismissed because he received no response to his email of 28 August 2019 until it was too late. When asked by the Commission as to what steps the Respondent had taken to terminate his employment the Applicant responded that Mr Haverfield went against what he had said at the meeting of 1 August 2019. [22] In his witness statement8 the Applicant essentially repeated the chain of events set out in his written submissions. [23] Key aspects of the Applicant’s oral evidence included that:  he brought a pre-prepared letter to his 1 August 2019 meeting with Mr Haverfield, adding the he gave the letter to Mr Haverfield at the end of their meeting as opposed to the beginning of the meeting as deposed by Mr Haverfield;  at that meeting he did not give a reason as to why he wanted to move to casual employment, also attesting that he did not mention to Mr Haverfield that he had another full-time job;  he did not mention to Mr Haverfield that he would only resign from his full-time role with the Respondent if he was to be employed by it on a casual basis;  he did not get along with Mr Haverfield and did not like the way he had been treated by the Respondent;  Mr Haverfield may have learnt that he had another job from other staff;  it was up to Mr Haverfield to make an offer of casual employment; -- 5 of 16 -- [2020] FWC 1713 6  at their meeting on 1 August Mr Haverfield did say that he was recruiting other staff but did not say that his (i.e. the Applicant’s) services may not be required, that he could not guarantee him a position as a casual or that he could not commit to engage him as a casual;  he could not recall the exact wording used by Mr Haverfield to offer him casual employment;  he believed that if someone signed and dated a letter that they agreed with what was said in the letter;  if he had known that he would not be offered casual employment he would have retracted his resignation;  he did not attempt to ring either Ms Cheng or Mr Haverfield before 1 September 2019 as he wanted everything in writing, though he was prepared to accept a verbal offer of casual employment;  after the 1 August 2019 meeting he reported to his managers/colleagues that he was going casual, adding that he was not sure if any of them had spoken to Mr Haverfield about this and that no one had said to him that Mr Haverfield had said anything to them about his casual employment not going ahead;  he understood that Mr Haverfield had told Mr Muyot to take him off the roster for September 2019;  he believed that he had been dismissed from his full-time position with the Respondent as no one responded to his email of 28 August 2019 prior to 1 September 2019; and  he was unable to estimate his loss if the Commission were to find that the Respondent had engaged him as a casual employee and terminated his casual employment, agreeing that he would have earnt more from his full-time employment with IPA than he would have as a casual employee with the Respondent. [24] Mr Wood, in his witness statement,9stated that he had a conversation with the Applicant regarding the required paperwork to move from a full-time to a casual position with the Respondent, deposing that he said he did not recall signing any contract or paperwork and that the rest was taken care of by management and Human Resources. Key aspects of Mr Wood’s oral evidence included that:  when he moved from full-time to casual employment, he met with Mr Haverfield which resulted in a verbal agreement with Mr Haverfield regarding the move;  he understood that it was up to Mr Haverfield to agree to him going casual;  Mr Haverfield had not confirmed with him that the Applicant was going casual; -- 6 of 16 -- [2020] FWC 1713 7  when he discussed moving to casual employment with Mr Haverfield, he (i.e. Mr Haverfield) said that he would look into it and see what he could do about getting it started; and  Ms Cheng subsequently contacted him asking him to sign documentation formalising his casual employment. [25] Mr Kingsley’s viva voce evidence included that he was under the impression that the Applicant was going casual and that he had not had any conversation with Mr Haverfield regarding the Applicant’s employment. The Respondent’s case [26] In summary, the Respondent submitted that the evidence in this matter established that at the 1 August 2019 meeting with Mr Haverfield:  the Applicant on his own initiative gave written notice of the termination of his employment with the Respondent as a full-time Security Officer;  the Applicant did request casual employment with the Respondent from 1 September 2019; and  no offer of casual employment was made to the Applicant by Mr Haverfield. [27] The Respondent further submitted that subsequent to the meeting on 1 August 2019 no offer of casual employment was made by it to the Applicant. In those circumstances, the Respondent posited that the Applicant’s employment with it was not terminated on its initiative as per s.386(1) of the Act and that therefore the Commission’s jurisdiction to determine the Applicant’s unfair dismissal application was not enlivened. [28] Beyond that, the Respondent in its submissions:  noted that:  the giving of notice of termination of a contract in accordance with the terms of the contract was not dependent on the acceptance of notice by the other party to the contract,  a valid notice of termination of employment, once received, would operate to bring an employment contract and the employer-employee relationship to an end on the effluxion of the period of notice, and  a valid notice of termination generally cannot be withdrawn without the consent of the party to whom the notice was given, even where the period specified in the notice had not expired;  acknowledged that after the 1 August 2019 meeting among other things the Applicant’s name appeared in the casuals section of the rosters for its Security -- 7 of 16 -- [2020] FWC 1713 8 Department for the weeks commencing 2 and 9 September 2019 and that the Applicant was allocated casual shifts for 1 and 4-6 September 2019;  the evidence established that none of the above matters occurred at the instigation of Mr Haverfield who was responsible for determining whether the Applicant would be offered a casual role;  contended that at the conclusion of the 1 August 2019 meeting the Applicant did understand that Mr Haverfield had not agreed to engage him as a casual employee from 1 August 2019;  posited that an evaluation of the events of the 1 August 2019 meeting did not depend on the parties’ subjective intentions or understandings about the meeting but rather an evaluation by the Commission of what a reasonable person would have understood to be the objective position at the conclusion of the meeting, taking into account what was said and done at the meeting and the surrounding circumstances known to the parties;  submitted that at the very latest upon receiving Ms Cheng’s email of 28 August 2019 the Applicant would have known that the Respondent had not agreed to engage him as a casual employee and did not intend to make him an offer of casual employment;  said that contrary to the Applicant’s contention in his submissions that he would have withdrawn his resignation letter had he known that the Respondent would not engage him as a casual employee the Applicant did not do so after receiving Ms Cheng’s email of 28 August 2019;  posited that the Applicant’s actions were consistent with the fact that he had obtained full-time employment with another employer and that at all relevant times he had no intention of remaining in full-time employment with it (i.e. the Respondent). [29] In support of its submissions the Respondent relied on several authorities, including the decisions in Jack Lipari v YPA Estate Agents Pty Ltd (Lippari)10 and Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (Navitas)11. [30] Additional points made in the Respondent’s oral submissions included that:  the evidence in this case established inter alia that:  Mr Haverfield’s usual practice was to annotate, sign and date documents as ‘Received’ with this constituting nothing more than an acknowledgement that he had received the document,  Mr Haverfield did not make an offer of casual employment to the Applicant at their meeting of 1 August 2019,  Mr Wood had not discussed the Applicant’s circumstances with Mr Haverfield, -- 8 of 16 -- [2020] FWC 1713 9  when Mr Wood discussed his move from full-time to casual employment with Mr Haverfield the latter did not make an immediate commitment but said he would get back to him with Ms Cheng subsequently contacting Mr Wood regarding the matter,  Mr Muyot had not had a discussion with Mr Haverfield about the Applicant being engaged as a casual before he drew up the rosters for September 2019,  while some casual shifts had been allocated to the Applicant for September 2019 these were withdrawn after Mr Haverfield advised Mr Muyot that the Applicant had not been offered casual employment,  the Applicant did not say to Mr Haverfield on 1 August 2019 that he would not resign if he was not offered casual employment, i.e. the Applicant did not say that his resignation was conditional on being engaged as a casual employee,  the Applicant had on his own initiative and unaffected by any act on the part of the Respondent resigned at the meeting of 1 August 2019,  while the Applicant did request casual employment at that meeting, no such offer was made by Mr Haverfield, and  it was clearly indicated to the Applicant on 28 August 2019 when Ms Cheng emailed the Applicant asking him to complete a final clearance that there would be no offer of casual employment;  the Applicant agreed that Mr Haverfield had not agreed to offer him casual employment;  drawing on Lipari, the approach to determining this matter was what a reasonable person would have understood occurred at the meeting of 1 August 2019;  the Applicant sought to rely on the sequence of events that occurred after 1 August 2019, adding that the Applicant’s contentions regarding those events reflected his subjective understanding of those events and that the events were not probative of what happened at the meeting;  the Applicant’s evidence as to why he did not seek to retract his resignation after receiving Ms Cheng’s email of 28 August 2019 (i.e. he wanted everything in writing) was unsatisfactory; and  should the Commission determine that the Applicant had been unfairly dismissed, there was no basis for it to find that he had suffered any loss given that he commenced full-time employment with IPA the day after his employment with it ceased. [31] Ms Haverfield in his witness statement12 set out his version of the meeting of 1 August 2019. Among other things, Mr Haverfield deposed that: -- 9 of 16 -- [2020] FWC 1713 10  the Applicant asked to meet with him and immediately upon entering his office handed him two copies of his letter of resignation and said that he had a new full-time job;  he read the resignation letter and checked that the Applicant was providing the required four weeks’ notice, adding that he then wrote ‘Received’ and signed both copies before giving one of the copies back to the Applicant;  after that he had a short discussion with the Applicant in which he said to him that he may not need the services as a casual as he had been actively recruiting for full-time and casual officers and had already made offers to a number of casual officers and that he could not guarantee him a casual position, adding that he did not offer the Applicant a casual position; and  the Applicant gave him no indication that he only offered to resign from his full-time position if he was offered a casual position. [32] Mr Haverfield further deposed that:  he subsequently determined not to offer the Applicant a casual position and on 19 August 2019 had a Separation Notice completed for the Applicant which he provided to the Respondent’s Human Resources Department on that day;  Mr Muyot asked him during their meeting of 26 August 2019 about the Applicant’s change of status to a casual employee and indicated that he had pencilled in some shifts for the Applicant for September 2019; and  he advised Mr Muyot at that meeting that the Applicant had not been offered a casual position and that he should not be on the roster, adding that Mr Muyot subsequently removed the Applicant from the upcoming rosters. [33] Mr Haverfield also referred to the exchange of emails between he and the Applicant in early September 2019 (see paragraphs [15]-[17] above). [34] Key aspects of Mr Haverfield’s oral evidence included that:  he was ultimately accountable for the rostering of staff including casuals, adding that Mr Muyot was accountable to him regarding rostering even though he prepared the rosters;  his preference was not to roster the Applicant for casual shifts;  he disagreed with the Applicant’s version of the meeting of 1 August 2019, attesting that the Applicant came into his office with his resignation letter in hand, shut the door and said that he was going to resign as a full-time security officer;  at the meeting of 1 August 2019 among other things he said to the Applicant that he could not guarantee him any casual position, he may not need his services and that his services may not be required; -- 10 of 16 -- [2020] FWC 1713 11  Mr Muyot had not heard from him about the Applicant moving to casual employment before including the Applicant on the rosters for September 2019, adding that he (i.e. Mr Haverfield) was not aware of the roster showing the Applicant as a casual employee being posted;  until his meeting with Mr Muyot on 26 August 2019 he was unaware what the Applicant thought in terms of his employment status, adding that he was totally unaware of ‘talk’ about the Applicant going casual;  he did not contact the Applicant after 26 August 2019 regarding any misunderstanding the Applicant may have had about a move to casual employment because he had nothing to say to the Applicant;  he accepted the Applicant’s resignation on 1 August 2019 and that was the end of the matter from his perspective, particularly as he had made no formal offer of casual employment to the Applicant at the meeting;  he prepared a Separation Notice in respect of the Applicant on 19 August 2019, noting that the Notice was subsequently signed off by others and did not come back to him to pass on to the Human Resources area;  he did not know why Ms Cheng did not contact the Applicant until 28 August 2019;  his preference was to recruit full-time personnel;  he signed and dated any document that was given to him, adding that doing so was nothing more than an acknowledgement that he had received the document;  in handing the resignation letter to him on 1 August 2019 the Applicant had said that he had another job offer;  he had no set procedure as to who he informed when an employee resigned;  he was the only person in the Respondent’s Security Department authorised to make offers of employment;  the Applicant did not try and call him before 1 September 2019; and  he did not inform the Applicant of his decision not to offer him casual employment because he had not previously made an offer of casual employment, adding that had he made such an offer and retracted it that he would tell the person. [35] In his witness statement13Mr Muyot deposed inter alia that:  his duties included the development and issuing of rosters for the Respondent’s Security Department; -- 11 of 16 -- [2020] FWC 1713 12  he recalled having a conversation with the Applicant in early August 2019 in which the Applicant informed him that he was going casual, adding that he discussed the Applicant’s availability with him and showed him some shifts for which a casual was required;  at the time he had not discussed with Mr Haverfield whether it had been agreed that the Applicant would go casual;  in late August 2019 he met with Mr Haverfield and asked him about the Applicant going casual with Mr Haverfield stating that he had not offered the Applicant a casual position; and  he subsequently removed the Applicant from the upcoming rosters. [36] At the hearing, Mr Muyot attested among other things that:  it was only when he met with Mr Haverfield in late August 2019 to review the upcoming rosters for the Security Department that Mr Haverfield told him that the Applicant had not been offered a casual position with the Respondent;  he met with Mr Haverfield as required but a minimum of once a month;  he did not tell the Applicant that he was to be removed from the roster for September 2019 as he assumed Mr Haverfield would do so;  he had rostered the Applicant for casual shifts in September 2019 because the Applicant had asked for casual shifts and there were gaps in the roster which he needed to fill; and  he was not aware that the Applicant’s casual employment was not proceeding until his meeting with Mr Haverfield on 26 August 2019, adding that he took the Applicant’s word that he was moving to casual employment at face value. Was the Applicant dismissed? [37] The Commission exercises its discretion in relation to an application for an unfair dismissal remedy pursuant to Part 3-2 of the Act. In this case it was not disputed that the Applicant was protected from unfair dismissal pursuant to s.382 of the Act. However, based on the Respondent’s submissions there is a dispute as to whether the Applicant was dismissed or resigned. The relevant provisions of the Act in respect of this matter are ss.385 and 386 which provide as follows: “385 What is an unfair dismissal A person has been unfairly dismissed if FWC is satisfied that: (a) the person has been dismissed; and (b) the dismissal was harsh, unjust or unreasonable; and (c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and -- 12 of 16 -- [2020] FWC 1713 13 (d) the dismissal was not a case of genuine redundancy. Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388. 386 Meaning of dismissed A person has been dismissed if: (a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or (b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.” [38] The issue of dismissed at the initiative of the employer was considered by the Full Court of the then Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab)14. The Full Court stated in its decision that: “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, 12 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.”” (Underlining added) [39] I begin with some general observations about aspects of this matter. While Mr Haverfield’s evidence was at times inconsistent, those inconsistencies were not in my view so significant as to make his overall evidence unreliable. If anything, his evidence reflected a somewhat lackadaisical approach on his part in effecting the Applicant’s resignation. In particular I found it surprising that Mr Haverfield appeared not to have mentioned the Applicant’s resignation to anyone in the Security Department until his meeting with Mr Muyot on 26 August 2019. Further, in circumstances where Mr Haverfield’s evidence was that he said to the Applicant on 1 August 2019 that he could not guarantee him any casual position, he may not need his services and that his services may not be required, I consider it poor management practice that he subsequently did not have the courtesy to contact the -- 13 of 16 -- [2020] FWC 1713 14 Applicant to let him know that he would not be engaged as a casual employee. Similarly, Mr Haverfield’s failure to respond to the Applicant’s email of 28 August 2019 to Ms Cheng with greater urgency does not, on its face, reflect well on him. Conversely, the Applicant’s failure to pick up the phone and talk to either Mr Haverfield or Ms Cheng following the latter’s email of 28 August 2019 and his stated reason for not doing so (i.e. he wanted things in writing) beggars belief in the circumstances. Further, the Applicant’s failure to take steps to retract his resignation in the light of Ms Cheng’s email of 28 August 2019 is inconsistent with his submissions. Ultimately, however none of these observations go to the issue of whether the Applicant was dismissed at the Respondent’s initiative. [40] Turning to the question of whether the Applicant was dismissed, it is clear from the parties’ respective cases that key aspects of the meeting of 1 August 2019 are disputed. However, two aspects which are not disputed are that the Applicant came to that meeting with a pre-prepared letter which gave notice of his resignation from his full-time role with the Respondent and that he did not state at that meeting that his resignation was conditional on him being offered casual employment by the Respondent. These considerations, together with an objective reading of the letter, support a finding that the cessation of the Applicant’s full- time employment occurred at his initiative as opposed to the Respondent’s initiative. As previously noted, the Applicant in response to a question from the Commission at the hearing described the initiative taken by the Respondent to dismiss him as Mr Haverfield going against what he had said at the meeting of 1 August 2019. At best that contention, if proven, might point to the Respondent terminating the Applicant’s casual employment were the Commission to determine that he had been engaged as such (I consider that issue further below). However, drawing on the decision in Mohazab, there is no evidence before the Commission pointing to any act on the part of the Respondent which resulted in the termination of the Applicant’s employment. [41] The Applicant’s characterisation of the letter he gave to Mr Haverfield on 1 August 2019 as a “change of status’ letter as opposed to a termination or resignation letter is in my view misconceived, particularly in circumstances where he agreed that it was for Mr Haverfield to determine whether or not he was to be offered casual employment. Indeed, the characterisation is contradicted by the terms of the letter itself which uses the words “this letter of resignation”. [42] The Applicant in his submissions and evidence attached great weight to Mr Haverfield signing and dating the letter he handed him at the meeting of 1 August 2019. However, I accept Mr Haverfield’s evidence that this was not only his usual practice but, more importantly, that it was nothing more than an acknowledgement that he had received the letter. This does not support the Applicant’s contention that Mr Haverfield’s action in signing and dating the letter amounted to him agreeing with the contents of the letter or in some way constituted an offer of casual employment. [43] As to the Applicant’s reliance on events after the 1 August 2019 meeting, the evidence of Messrs Muyot, Wood and Kingsley supports a finding that until Mr Haverfield’s 26 August 2019 meeting with Mr Muyot he did not inform any of them of either the Applicant’s resignation from full-time employment or that the Applicant would not be offered casual employment. In fact, both Mr Wood and Mr Kingsley attested that Mr Haverfield had not discussed the Applicant’s move to casual employment with either of them. This points to the likelihood that any understanding on the part of other staff in the Security Department regarding the Applicant moving to casual employment as merely reflecting what the -- 14 of 16 -- [2020] FWC 1713 15 Applicant had told them as opposed to any advice they received from the Respondent. Accordingly, the post 1 August 2019 events relied on by the Applicant do not of themselves support a finding that the Respondent had agreed to engage him as a casual employee. [44] Returning to the issue of whether Mr Haverfield offered the Applicant casual employment at the meeting of 1 August 2019, the inability of the Applicant to recall the exact words used by Mr Haverfield to offer him casual employment is in my view particularly telling. Further, the fact that Mr Haverfield completed the Separation notice on 19 August 2019, a week in advance of him becoming aware that the Applicant had been included in the casual rosters for September 2019, leads me to prefer Mr Haverfield’s evidence as to what he said to the Applicant regarding casual employment at the 1 August 2019 meeting. While it is likely that Mr Haverfield was deliberately circumspect in what he said to the Applicant at the meeting, in the absence of more compelling objective evidence such as a letter of offer I am not satisfied that the Applicant was either offered casual employment by the Respondent or engaged as a casual employee at or after the meeting of 1 August 2019. [45] Drawing on the above analysis, the material before the Commission supports a finding that the Applicant’s employment was not terminated on the Respondent’s initiative but rather ended as a result of his voluntary and self-initiated resignation. Conclusion [46] For the reasons outlined above, I have determined that the Applicant’s employment was not terminated on the Respondent’s initiative. In short, the Applicant was not dismissed. As such, s.385(a) of the Act is not satisfied and the Applicant therefore cannot have been unfairly dismissed. The Applicant’s application will therefore be dismissed. An order to that effect will be issued in conjunction with this decision. Appearances: A. De Menezes Ribeiro on his own behalf S. Maundrell for the Respondent Hearing details: 2020 Canberra February 4. -- 15 of 16 -- [2020] FWC 1713 16 Printed by authority of the Commonwealth Government Printer <PR717942> 1 Exhibit 2 2 Attachment to Form F2 – Unfair dismissal application 3 Exhibit 4 at Annexure BH-3 4 Ibid 5 Applicant’s Outline of Submissions at Attachment 006 6 Ibid 7 Respondent’s Submissions at paragraph 9. 8 Exhibit 1 9 Exhibit 3 10 [2019] FWC 3546 11 [2017] FWCFB 5162 12 Exhibit 4 13 Exhibit 5 14 (1995) 62 IR 200 at 205 -- 16 of 16 --