TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – 7 December 2012 applicant commenced employment with respondent – applicant submitted he had been unfairly dismissed either because his employment was terminated at the respondent’s initiative or, alternatively, because he was forced to resign following a course of conducted engaged in by the respondent – respondent denied dismissal, submitting that the applicant had voluntarily resigned on 4 November 2016 with an effective termination date of 30 November 2016 – on 24 June 2016 applicant requested a pay rise – respondent rejected the applicant’s request on the grounds that it could not afford the increase sought – in September 2016 the applicant began working after-hours for Xsight, a competitor of the respondent – during a meeting with the respondent on 4 November 2016, the applicant was notified that his engagement by Xsight was considered a breach of contract – applicant submitted that the respondent had previously consented to him working for other businesses to supplement his income, including for Xsight – applicant told that he had a week to decide between ceasing all work for Xsight or resigning his employment with respondent – applicant verbally resigned his employment during the 4 November 2016 meeting – respondent accepted applicant’s resignation and it was agreed that the employment would cease on 30 November 2016 – applicant submitted that from the 6 November 2016 he had tried to inform respondent that he did not intend to resign – respondent submitted that the applicant only sought to withdraw his resignation on 30 November 2016 – applicant informed the respondent that he regarded the editing team’s office relocation as an unfair termination and therefore did attend work – on 13 January 2017 the respondent submitted that the applicant’s failure to attend work was evidence that he abandoned his employment – Commission held that applicant was not dismissed from his employment – Commission neither satisfied that applicant’s employment was terminated on the initiative of respondent nor that applicant was forced to resign because of respondent’s conduct – respondent was under no obligation to grant applicant a pay increase nor was it unreasonable of it to insist that he not carry out work for competitors – Ngo considered – Commission satisfied no special circumstances existed such that respondent’s immediate acceptance of applicant’s resignation was unreasonable – respondent entitled to treat applicant’s resignation as effective – application dismissed. Javed v Proeye Video Productions t/a Proeye Video Productions
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