TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – s.394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant commenced employment with respondent on 14 June 2008 – in June 2016 direct manager of applicant accessed metal lockbox in back dock of store that contained respondent’s property and some of the applicant’s personal belongings without first asking the applicant for access – around the same time, after some to and fro of the applicant’s desk and stool being removed from back dock, applicant’s direct manager threw items into garbage – applicant complained to store manager about incident – applicant undertook combination of personal and annual leave from 2 July 2016 until 26 November 2016 – applicant provided a letter of resignation to store manager on 26 November 2016 due to ‘persistent bullying, harassment and intimidation’ – applicant submitted he had been constructively and unfairly dismissed and requested a remedy of two years wages and long service leave – respondent raised jurisdictional objection on the basis the applicant had not been dismissed – submitted applicant chose to resign and clearly had alternative actions available if maintained genuine on-going concern about alleged intimidation, harassment and bullying – s.386(1) FW Act considered – if dismissal is one where the employee did not resign willingly and was forced to do so by conduct of employer, should be treated as dismissal [Mohazab] – Commission considered applicant did not alert employer the period of leave was connected with complaints named by the applicant – considered applicant did not further agitate or elevate his grievance about alleged actions which was said to cause his resignation – considered applicant had legitimate basis for complaint about manager’s conduct however did not amount to egregious breach of employment relationship – determined resignation of applicant was not caused by conduct or course of conduct by the employer – held a constructive dismissal is not established simply because an employee decides to treat the conduct of an employer as the repudiation of the employment – Commission determined applicant not forced to resign – jurisdictional objection by the employer upheld – application dismissed. Fitzgerald v Woolworths Limited
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