Farrell v Jackson & Jackson Refrigeration Pty Ltd [2017] FWC 126 (6 January 2017) [2017] FWC 126 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.394 - Application for unfair dismissal remedy Duane Farrell v Jackson & Jackson Refrigeration Pty Ltd (U2016/1601) COMMISSIONER HUNT BRISBANE, 6 JANUARY 2017 Application for relief from unfair dismissal – jurisdictional objection out of time application and “no dismissal.” – whether redundancy or resignation – found to be a resignation – no dismissal – application dismissed Introduction [1] This decision relates to an application made by Mr Duane Farrell pursuant to s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. Mr Farrell alleges that the termination of his employment from Jackson & Jackson Refrigeration Pty Ltd (Jackson Refrigeration) was harsh, unjust and/or unreasonable. [2] Jackson Refrigeration has raised two jurisdictional objections to the application alleging that Mr Farrell was not dismissed at the initiative of Jackson Refrigeration and that Mr Farrell did not make his application within time. [3] Directions were set for the filing of submissions and evidence in relation to the jurisdictional objections. The matter was listed for a jurisdiction hearing on 17 October 2016 in Cairns. [4] Mr Farrell was granted leave pursuant to s.596 of the Act to be represented by a paid agent, Mr Miles Heffernan of Fair Work Claims. Mr Farrell gave evidence on his own behalf. [5] Jackson Refrigeration was granted leave pursuant to s.596 to be represented by Mr Chris Kahler, Solicitor of Kahler Lawyers. The following witnesses gave evidence on behalf of Jackson Refrigeration: Mr Robert Jackson, Director; Mr Jason Morrissey, Service Manager; and Ms Aimee Stampa, Financial Controller. Background [6] Mr Farrell commenced employment with Jackson Refrigeration on 13 October 2014 as a Refrigeration Technician. [7] In or around mid-2015, Mr Farrell had discussions with Mr Jackson relevant to his past work experience and skills as a Service Supervisor with a large refrigeration company. Mr Jackson considered Mr Farrell’s skills and experience beyond those of a Refrigeration Technician, and by October 2015 Mr Farrell had been promoted to the position of Service Supervisor. [8] A part of Mr Farrell’s duties then became visiting customers at their premises. Mr Jackson’s evidence is that customers very much appreciated this, rather than only being visited for repairs. Mr Farrell also gave administrative support to Jackson Refrigeration’s service operations. [9] On 17 February 2016, a management meeting took place at Jackson Refrigeration’s Cairns office. Mr Jackson, Mr Morrissey and Ms Stampa were in attendance at the meeting. It was determined that the service department in which Mr Farrell worked had overheads that were too high. There needed to be cost reductions in this department to increase profitability. [10] Mr Jackson instructed Mr Morrissey to convene a meeting with Mr Farrell and discuss with him a new role. It was foreshadowed that Mr Farrell would perform about 50% of his duties in the office as a Service Supervisor, and the other 50% performing Refrigeration Technician duties. He would remain on the salary of a Service Supervisor. Meeting of 17 February 2016 [11] It is uncontested that a meeting took place between Mr Morrissey and Mr Farrell at a McDonald’s caf� in the afternoon of 17 February 2016 at the invitation of Mr Morrissey. The men travelled together in Mr Morrissey’s vehicle to McDonalds. What is contested is what was said at the meeting. [12] It is Mr Farrell’s evidence that Mr Morrissey said words to the following effect: Morrissey: Bob and Jeff (Jackson) have been instructed to make you redundant. This is nothing personal, it’s just the accounting. Our service overheads are just too high, and we need to make you redundant. There is another option on the table, to downgrade your duties. I’ve put forward a second proposition to them, which involves you working three days in the field and two days in the office. [13] Mr Farrell contends that together they discussed the practicalities regarding the second option, and Mr Farrell said that he would need some time to consider the options. [14] It is Mr Morrissey’s evidence that the discussion was to the following effect: Morrissey: We had a management meeting and we discussed the overhead costs for the service department. Basically, the overhead costs are too high and we need to find a way to lower these overheads without making any redundancies in the office. Farrell: Oh yeah…who’s getting made redundant? Morrissey: No one’s getting made redundant, that not why we’re here. We would like to offer you a new role which would be 50% in the field and 50% in the office. Once we grow the service department a bit more we can bring you back into the office full time. Farrell: What role are you offering? What would I be doing then? Morrissey: General repairs, service and maintenance of refrigeration plant 2 or 3 days per week. However we would keep you on supervisor wages to complete the general service work. Farrell: No, I want my redundancy. Morrissey: Duane, I want to clarify with you right now that we are not offering you a redundancy. Farrell: So what are you offering me then? Morrissey: We’re offering you 3 days out in the field at most and 2 days in the office. We will keep you on the wages that you are on and will not reduce your pay to the technician’s rate. Farrell: So you are going to pay me a supervisor’s wages to do the service and maintenance role on the 3 days I’m not in the office? Morrissey: Yes and then you would spend 2 days in the office in your current role. This will allow us to recover some overhead costs. Farrell: That seems alright, as long as I am on the same rate. I’m happy with that, but I’m not going to give you an answer now. I need to speak to my partner and get back to you in the morning. Morrissey: OK. Meeting of 18 February 2016 [15] Mr Farrell’s evidence is that on 18 February 2016 he requested a private meeting with Mr Jackson, however Mr Jackson invited Mr Morrissey to the meeting. The meeting was in Mr Jackson’s office. Mr Farrell contends the following was said: Farrell: I’m disappointed in the way this has been handled. Do you think I’m not putting in the hours? Jackson: No, that’s not the issue. Farrell: In that case I’ll accept your offer of redundancy, and I’ll finish up. Jackson: I ask you to reconsider your decision. [16] Mr Farrell then left the workplace and had a coffee. On his return he met with Mr Jackson and Mr Morrissey in the lunchroom. Mr Farrell contends there was a conversation to the following effect: Farrell: Bob, I haven’t changed my mind, I want to accept the redundancy and I want to finish up as soon as possible. Jackson: I’m disappointed in your decision and the way that I’ve handled this. Farrell: Has Jason acted on your behalf? Jackson: Yes, he’s acted on my instructions. Farrell: Can I have a calculation of what I’m owed and when I can finish up? I would like to finish up on the Friday if possible. Jackson: Speak with Aimee Stampa for a calculation on your redundancy entitlements. [17] Mr Farrell’s evidence in re-examination was that Mr Jackson didn’t respond to Mr Farrell’s statement that he wanted to finish up work on Friday. 1 [18] Mr Morrissey’s evidence is that on 18 February 2016, a conversation to the following effect was held with Mr Farrell: Morrissey: Hey Duane, how did you go? Did you speak to your partner? Farrell: Yes I did and I want my redundancy. Morrissey: Well…um… we were not offering a redundancy. Farrell: Yes you did. You said that if I don’t take this role you would make me redundant. Morrissey: No that’s not what I said at all. Mate, honestly, there is no redundancy. You need to go and speak to Bob about it. We were trying to offer you a new role. Farrell: I don’t want the new role. I want my redundancy. [19] Mr Jackson’s evidence is that on 18 February 2016, Mr Farrell and Mr Morrissey walked into his office together. The following was said: Farrell: Look, I am not happy with the changes. Just give me a redundancy and I’m outta here. Jackson: Duane, there is no redundancy. We don’t want you to go. We just want to talk about a role change. [20] Mr Jackson contends that he went into detail as to what Jackson Refrigeration envisaged the new role to encompass. Mr Farrell would spend a portion of his time out in the field developing better customer relations and his own professional reputation. He would have greater exposure with clients. Mr Jackson stated that Mr Farrell’s title, reporting lines, employment management responsibilities and salary would remain unchanged. [21] Mr Jackson’s evidence is that Mr Farrell repeatedly said, “Just give me a redundancy”, which was refused by Mr Jackson. Mr Jackson denied that he had said that he was disappointed with the way Jackson Refrigeration had handled the conversations. In cross-examination, Mr Jackson agreed that he probably did say something to the effect, “Yeah, we could have done it better.” 2 [22] Mr Jackson agrees that he said to Mr Farrell that Mr Morrissey was authorised to discuss the role change, but denies that he said that Mr Morrissey was authorised to discuss a redundancy offer. [23] Mr Jackson denies that he directed Mr Farrell to Ms Stampa’s office to discuss redundancy entitlements. Mr Jackson contends that he had previously said any financial information was Ms Stampa’s or the previous Financial Controller’s domain. [24] Mr Morrissey’s evidence is that on 18 February 2016, after Mr Farrell declared he wanted his redundancy and Mr Jackson informed him he was not being made redundant, Mr Farrell said, “Well if I don’t get my redundancy, then I’ll leave anyway.” It is Mr Morrissey’s evidence that Mr Jackson asked Mr Farrell to reconsider his position in light of this statement. Redundancy calculation [25] Mr Farrell stated in evidence that he attended on Ms Stampa the same day, that being 18 February 2016 and obtained a redundancy calculation. [26] Mr Farrell maintains that given that Mr Jackson did not inform him of the date his redundancy would take effect, because Mr Farrell had expressed a preference for ceasing work on Friday, he attended at work on Friday, 19 February 2016 and did not intend working beyond 5.30pm. [27] Ms Stampa commenced employment with Jackson Refrigeration in January 2016, largely working from the Innisfail office learning the role from her predecessor. Ms Stampa spent a very limited amount of time in the Cairns office prior to Mr Farrell’s employment ending. [28] Ms Stampa’s evidence is that on 19 February 2016 she was working in the Cairns office. Mr Farrell came into her office and said words to the effect, “I’ve decided to take the redundancy that Bob has offered me. Could you please prepare a redundancy calculation for future planning purposes. My last day will be today.” [29] It is Ms Stampa’s evidence that she did what Mr Farrell requested without question. A few hours later she emailed Mr Farrell the redundancy calculation. Ms Stampa did not make inquiries of Mr Jackson or any other person. 19 February 2016 [30] It is Mr Jackson’s evidence that at approximately 5.20pm on 19 February 2016, he went downstairs to the reception area and saw Mr Farrell saying goodbye to everyone. Mr Jackson approached him and said, “So you’re going are you?” Mr Farrell responded, “Yes, I am.” [31] Mr Jackson shook Mr Farrell’s hand and wished him the best. It is Mr Jackson’s contention that Mr Farrell had resigned his employment. It is Mr Farrell’s contention that he was made redundant. 22 February 2016 [32] It is Mr Morrissey’s evidence that the first he discovered that Mr Farrell was no longer in the business was when Mr Farrell did not attend for work on Monday, 22 February 2016. He asked a person in the service department, “Where’s Duane?” and was informed that Mr Farrell had left and wasn’t returning. Email communication [33] On 9 March 2016, Mr Jeff Jackson, Managing Director (and son of Mr Bob Jackson) sent to Mr Farrell by email a Centrelink Separation Certificate. It nominated the employment having ended due to resignation. [34] On 10 March 2016, Mr Farrell replied to Mr Jeff Jackson and also to a generic email address for the Cairns office, resulting in all employees with a work email address in the Cairns office receiving the email. The email states, inter alia that Mr Farrell has in his possession the redundancy calculations prepared by Ms Stampa. He would not have these calculations unless Ms Stampa was aware that he was to be made redundant. [35] Further, the email states that Mr Morrissey had offered to make Mr Farrell redundant, and this was confirmed the following day by Mr Bob Jackson and Mr Morrissey. Mr Farrell stated that he looked forward to resolving the issue. [36] On 11 March 2016, Mr Farrell sent a further email addressed to Mr Bob Jackson, and again including the Cairns office. A relevant part of the email is as follows: ‘…..Just to be clear as I have stated all the way through this episode your Service Manager Jason Morrissey offered me a redundancy, until that point I had no intentions of leaving your employment and had actually approached you about ways to progress the Service department. You saying there was a miscommunication and that you were not going to make me redundant does not alter the fact that Jason told me I was to be made redundant, I actually asked you in the lunch room in front of Jason if he was wrong and you said no, Jason was just carrying out your instructions…..’ Letter from Jackson Refrigeration to Mr Farrell [37] On 16 March 2016, Mr Farrell received a letter from Jackson Refrigeration dated 15 March 2016. The letter, inter alia states that Mr Farrell had resigned his employment effective 18 February 2016. The letter enclosed a Centrelink Separation Certificate and a statement of service. Is the application out of time? [38] It is Mr Farrell’s contention that on receipt of the letter on 16 March 2016, learning that Jackson Refrigeration considered that he had resigned his employment, that is the first time it had been properly put to him that he had not been made redundant. [39] If it is accepted that Mr Farrell learned of Jackson Refrigeration’s view of a resignation only on 16 March 2016, the start of the 21 day time limit commences the next day. Accordingly, the application having been filed on 6 April 2016, on the 21 st day is within time. [40] It is Jackson Refrigeration’s contention that Mr Farrell resigned his employment on 19 February 2016, and therefore filing his application on 6 April 2016 puts his application well outside of the time limit. [41] Alternatively, it is put that on receipt of the Separation Certificate sent by email on 9 March 2016, Mr Farrell had 21 days to file the application. It would have been necessary for him to have filed the application no later than 30 March 2016. Which jurisdictional issue should be determined first? [42] Section 396 of the Act states the following: ‘396 The FWC must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application: (a) Whether the application was made within the period required in subjection 394(2); (b) Whether the person was protected from unfair dismissal; (c) Whether the dismissal was consistent with the Small Business Fair Dismissal Code; (d) Whether the dismissal was a case of genuine redundancy.’ [43] It does not appear to me that there is any hierarchy between the subsections within s.396. [44] In order for Mr Farrell to be protected from unfair dismissal, it is necessary to first determine if he had been dismissed. Section 386 of the Act states the following: ‘386(1) 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.’ [45] I consider it necessary to firstly determine if Mr Farrell has been dismissed pursuant to s.386. If he has been dismissed on Jackson Refrigeration’s initiative, it is then necessary to determine if the application has been made within 21 days of the dismissal. [46] If it is determined that there has not been a dismissal at the initiative of Jackson Refrigeration, it is necessary to determine if Mr Farrell has resigned from his employment because of conduct, or a course of conduct engaged in by Jackson Refrigeration. As I understand it, this limb of s.386 is not argued by Mr Farrell because it is squarely submitted that he did not resign his employment at all, but instead was made redundant. [47] That being the case, if it is determined that Mr Farrell’s employment has not been terminated on Jackson Refrigeration’s initiative, the application must be dismissed. It would then not be necessary to give consideration to the jurisdictional objection that the application has been made out of time. Summary of Jackson Refrigeration’s Submissions and Evidence [48] Jackson Refrigeration submitted that Mr Farrell by his conduct resigned from his employment on 19 February 2016. It is submitted that Mr Farrell was not forced to resign because of conduct, or a course of conduct, engaged in by Jackson Refrigeration. [49] It is submitted that there must be action by the employer that either intends to bring the relationship to an end or has that probable result. 3 Mr Farrell’s resignation from his employment occurred entirely of his own choosing, initiative and in the absence of any duress. Therefore, it is Jackson Refrigeration’s contention that Mr Farrell was not dismissed but resigned voluntarily. [50] Jackson Refrigeration contends that there was no offer of a redundancy made by Jackson Refrigeration on 19 February 2016 or at any other time, nor did Jackson Refrigeration terminate Mr Farrell’s employment unilaterally. [51] It is submitted that Mr Farrell conducted himself under a mistaken belief that: there was an offer of redundancy made by Jackson Refrigeration on 19 February 2016 or earlier; and Mr Farrell’s contract of service with Jackson Refrigeration would continue until such time as the terms of his redundancy was finalised. [52] It is submitted that Mr Farrell was offered a change in position on terms no less favourable than what he received at the time of negotiations to move into the full time role as a Service Supervisor. This included no reduction in pay. [53] It is submitted that there was no positive action taken by or on behalf of Jackson Refrigeration to terminate Mr Farrell’s employment. There was no communication of dismissal because there was no dismissal. [54] It is submitted an employer is generally able to treat a clear and unambiguous resignation by an employee as a resignation. 4 Jackson Refrigeration contends that the alleged actions of Mr Farrell on 19 February 2016 showed a clear and unambiguous intent to bring the employment relationship to an immediate end, absent of any positive action, force or conduct exercised on the part of Jackson Refrigeration to do so. [55] It is contended that on Mr Morrissey’s evidence Mr Farrell said on 18 February 2016, “Well if I don’t get my redundancy, then I’ll leave anyway” , and his departure on 19 February 2016 is his exercise of that earlier statement. Summary of Mr Farrell’s Submissions and Evidence [56] Mr Farrell’s evidence and submissions press for the following course of events to be accepted by the Commission: On 19 February 2016, Mr Farrell accepted an offer of redundancy; Mr Farrell understood that his contract of service with Jackson Refrigeration would continue until such time as the terms of his redundancy were finalised; Mr Farrell was provided with a document on letterhead titled ‘Redundancy Calculation’; Mr Farrell left on 19 February 2016 after nominating in Mr Jackson’s presence his last day of work; On 9 March 2016, Jackson Refrigeration emailed a Separation Certificate to Mr Farrell stating that Mr Farrell had ‘voluntarily ceased’ his employment rather than his employment enduring due to redundancy; On 10 March 2016, Mr Farrell emailed Jackson Refrigeration challenging this categorisation, referring both to a conversation with Mr Morrissey and Mr Bob Jackson’s response; On 11 March 2016, Mr Farrell emailed Jackson Refrigeration reiterating his challenge to the categorisation of the cessation of his employment as a resignation; On 16 March 2016, Mr Farrell received a letter from Jackson Refrigeration dated 15 March 2016 which notified him that his resignation had been accepted effective 19 February 2016 [although it incorrectly read 18 February 2016]; At no time did Mr Farrell tender his resignation to Jackson Refrigeration; Whilst Mr Farrell was aware that his contract of service with Jackson Refrigeration was coming to an end, the first time that Mr Farrell was aware that his contract of service with Jackson Refrigeration was at an end was on 16 March 2016 following receipt of the letter; The point in time at which the employment relationship came to an end was unilaterally selected by Jackson Refrigeration; The appropriate date on which Mr Farrell’s employment may be said to be terminated is the date on which Jackson Refrigeration informed Mr Farrell that his employment had come to an end, whatever the reason; Jackson Refrigeration unilaterally altered the terms of Mr Farrell’s cessation of employment; Further submissions as to reasonableness to ‘conclude’ redundancy [57] Mr Farrell submits that based on Mr Morrissey’s statement that “…overhead costs are too high and we need to find a way to lower these overheads without making any redundancies in the office” it was open to Mr Farrell to conclude that if he refused the new position that was being discussed with him he would be eligible for redundancy. [58] It is submitted that the employment came to an end at the initiative of Jackson Refrigeration when it was communicated that there was an ‘intention to not continue to employ [Mr Farrell] in his current role, and proposed alteration of [Mr Farrell’s] role in a manner to which [Mr Farrell] did not consent.’ 5 [59] In light of the proposed alteration of Mr Farrell’s role which resulted in the cessation of employment, Mr Farrell submitted the case law 6 surrounding “suitable employment” should be considered. Having regard to this case law, it is submitted the role as proposed to Mr Farrell was not suitable alternative employment because: the proposed alternative role constituted a workload which was unsustainable; the proposed alternative role constituted a loss of seniority and prestige, amounting to a partial remittance to his earlier role; and the technician aspect of the role would cause an alteration to Mr Farrell’s hours of work. 7 [60] Mr Farrell submitted that pursuant to clause 6.4.1 of the Jackson and Jackson Refrigeration Pty Ltd Enterprise Bargaining Agreement 2015, Jackson Refrigeration could have deemed Mr Farrell to have abandoned his employment after three days’ absence from work. It is submitted that the failure of Jackson Refrigeration to avail itself of this right pursuant to the enterprise agreement demonstrates that Mr Farrell had not simply ‘walked out’. Consideration [61] The Commission is tasked with determining if Mr Farrell was correct in his understanding that he was to be made redundant, or if he was incorrect, did he cease employment at his initiative on 19 February 2016. [62] At the commencement of the hearing I invited parties to consider one last attempt at conciliation of the application and said the following: 8 ‘Largely the material today will rest on the credibility of witnesses and I'm going to need to make a determination as to whether I find that the applicant has terminated his employment at his initiative and there has been some sort of miscommunication, or whether I find that the three witnesses for the respondent might have put together their material in a fashion that does not support as to what has apparently been said. So I am going to have to find one way or the other and the decision will be a public decision.’ and ‘……for the respondent it might mean that I make adverse findings against the respondent, that in the evidence presented today (indistinct) and if I find for the respondent then for you, Mr Farrell, it means that I'm likely to make a finding that you were confused at best, or not saying the truth at worst…….’ 9 [63] On the evidence before the Commission and having regard for the submissions of the parties both oral and written, I am satisfied that on 17 February 2016, Mr Jackson, Mr Morrissey and Ms Stampa met to discuss, among other things, a proposal to put to Mr Farrell for his consideration. [64] Mr Morrissey took Mr Farrell to a nearby McDonalds’ caf� and held a discussion with him as to the company’s thoughts on what changes might be necessary to his role to allow for some offsetting of some of his ‘office costs’. By having Mr Farrell perform some work ‘on the tools’, part of his salary could be offset by charges to clients for some time. [65] I do not accept that Mr Morrissey was instructed by Mr Jackson to offer to Mr Farrell a change in role, and if the change in role was unsatisfactory to Mr Farrell, to authorise his role become redundant. The considerations being made by Jackson Refrigeration were clearly in their infancy. There was no maturity about the discussions; it was an attempt to gauge an initial reaction of Mr Farrell, and allow him some time to consider what was being put to him. [66] Unfortunately, what was claimed to be said by Mr Morrissey was not understood by Mr Farrell. Having observed both witnesses, I find it more likely that the conversation occurred as claimed by Mr Morrissey than it did by Mr Farrell. [67] I do not make any adverse finding against Mr Farrell with regard to his understanding of this issue. I accept that being taken to a McDonald’s caf� is not a routine or best-practice location to discuss considerations of role-changes. I accept that he’s likely to have considered that he had a right, overnight, to consider whether he wanted to accept the alternative role or be made redundant. I do not find, however, that it was expressly put to him the way in which he claims he understood it to have been. [68] I accept that Mr Morrissey, in all likelihood, ‘stumbled’ over his communication with Mr Farrell. On Mr Morrissey’s evidence there were times during the conversation where Mr Farrell was claiming that he wanted ‘his’ redundancy. I accept that Mr Morrissey could have ‘done better’ as is accepted by Mr Jackson the following day. Mr Morrissey could have said more definitive words to the effect, “I do not have any authority to make you redundant. This is just an initial conversation. If we were to consider making you redundant, it may be days or weeks down the track. Right now we’re just putting this idea to you and we’ll hold further discussions with you.” [69] Unfortunately, Mr Farrell was left with an impression that overnight he could consider the role being put to him and if he did not consent, be entitled to a redundancy. [70] Mr Farrell’s impression, if he had that impression, is incorrect. [71] Even if I accept Mr Farrell’s version of the conversation, the very next day Mr Farrell met with Mr Jackson. I find that Mr Jackson made unequivocal statements that Mr Farrell’s employment was not being made redundant. [72] I do not accept Mr Farrell’s version of the various conversations held on 18 February 2016 at [15] and [16]. I prefer the evidence of Mr Jackson and Mr Morrissey, and am satisfied that Mr Farrell was told that Jackson Refrigeration wanted him to learn of the proposed changes to his role and discuss with him the practicalities of the changes. [73] I do not consider that Mr Farrell was being asked to give an immediate answer as to whether he thought the role change was appropriate. Accordingly, I do not accept that Mr Farrell was entitled to answer on 18 February 2016 that he didn’t consider it an acceptable, alternative role, and therefore it was open to him to conclude that his role was redundant. [74] I accept that Mr Jackson did say words to the effect that the conversations could probably have been handled better. It is true; they could have been. At least one way they could have been handled better is having conversations in the presence of a third person and within the workplace so there is some formality about them. [75] I do not accept Mr Farrell’s evidence that he was directed by Mr Jackson to see Ms Stampa to organise a redundancy calculation. I accept Ms Stampa’s evidence that she was new to the organisation, and when Mr Farrell presented in her office seeking a calculation, she set about preparing it for him and issued it to him a few hours later. I am satisfied that it would not have taken a considerable amount of time to prepare with a template available to her. [76] I find that Mr Farrell was determined that he had an entitlement to consider the new role overnight and provide ‘his answer’ the following day, with his position determinative of the matter. I accept that he stated, “Well if I don’t get my redundancy, then I’ll leave anyway”, and Mr Jackson asked Mr Farrell to reconsider his position. [77] Mr Farrell thought that his decision not to accept the new role did mean that his role was redundant and an entitlement followed. He left his employment on 19 February 2016 at his initiative, and not with any agreed understanding with Jackson Refrigeration that he was entitled to a redundancy. [78] Accordingly, when Mr Jackson saw Mr Farrell bid farewell to colleagues on 19 February 2016, it was open to him to conclude that Mr Farrell had decided to leave the business at his initiative. I do not accept that the ‘new role’ discussions were at any maturity for Mr Farrell to be entitled to claim that the new role was not acceptable alternative employment. [79] The argument that Mr Farrell abandoned his employment and it should have been addressed by Jackson Refrigeration is one that cannot be sustained. On Mr Jackson’s evidence, he understood that Mr Farrell was resigning his employment and not returning. He did not consider that he was abandoning his employment. His open farewell gestures to colleagues do not equate to an abandonment of employment where Mr Jackson shook his hand and wished him the best. [80] I am further satisfied that when Mr Farrell wrote to Mr Jackson on 11 March 2016 at [37] and said, “You saying there was a communication and that you were not going to make me redundant does not alter the fact that Jason told me I was to be made redundant” it was clear that Mr Farrell understood on 18 February 2016 that Mr Jackson was not making him redundant. [81] Whatever might have been said by Mr Morrissey the day earlier – indeed if Mr Morrissey had overstepped the mark and declared he was being made redundant – this was then withdrawn by Mr Jackson the following day. [82] I do not find that Mr Jackson said the following words as claimed by Mr Farrell, that being to the effect that Mr Morrissey was authorised to make Mr Farrell redundant and Mr Morrissey was carrying out Mr Jackson’s instructions. [83] Having considered all of the evidence and submissions, and for the reasons above, I find that Mr Farrell was determined to be made redundant and considered he had an entitlement to declare one day after the initial conversation that he would not accept an alternative role. [84] Mr Farrell’s actions were premature, and there was no agreement from Jackson Refrigeration that Mr Farrell’s employment was redundant. It was only beginning the dialogue with him in consideration of changes to his role. [85] I determine that Mr Farrell resigned his employment by his actions on 19 February 2016 in agreeing with Mr Jackson that he was not returning to the workplace, and bidding farewell to colleagues. Conclusion [86] I find that there was no termination of Mr Farrell’s employment pursuant to s.386(1)(a) or (b). As a consequence, there has been no dismissal for the purposes of s.385 of the Act. [87] Having determined that there was no dismissal, and the obligation in the Act to dismiss the application, it is not necessary to determine whether the application is within the prescribed time limit. For the sake of completeness, if I did find that Mr Farrell’s employment ended on Jackson Refrigeration’s initiative, I would have determined that the application had been made on the 21 st day, and within time. [88] Jackson Refrigeration’s jurisdictional objection is upheld and accordingly the application for relief pursuant to s.394 of the Act must be dismissed. COMMISSIONER Appearances : M Heffernan, Fair Work Claims for the Applicant C Kahler, Kahler Lawyers for the Respondent Hearing details: 17 October 2016 1 PN1064 and PN1071. 2 PN184. 3 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] . 4 Ngo v Link Printing Pty Ltd (1999) 94 IR 375 [12]; 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). 5 Applicant’s further written submissions dated 7 October 2016 at [12]. 6 DRW Investments Pty Ltd t/a Wettenhalls v Timothy Richards & Ors, Sams DP; Feltex Australia Pty Ltd v Textile, Clothing and Footwear; Vicstaff Pty Ltd (t/as Stratco) v May (2010) 204 IR 233 (‘ Vicstaff ’), Bissett C. Union of Australia, 21 November 2006 7 Applicant’s further written submissions dated 7 October 2016 at [15]. 8 PN12. 9 PN13. Printed by authority of the Commonwealth Government Printer <Price code C, PR589173>