TERMINATION OF EMPLOYMENT – demotion – ss.386, 394 Fair Work Act 2009 – application for unfair dismissal remedy – applicant demoted from position as site manager due to failure to follow company policies – inability to communicate and inability to fulfil requirements of position – provided with new employment contract – applicant refused to accept demotion – alleged demotion constituted dismissal – alternatively alleged constructive dismissal by respondent – respondent submitted demotion did not result in dismissal because employment contract permitted demotion – submitted resignation voluntary – Commission considered applicant claiming forced resignation must show they had no real choice but resignation [Mohazab] – demotion of an employee, where that demotion is provided for in contract of employment or industrial instrument, cannot constitute, by itself, a dismissal [Moyle], [Singh] – while applicant’s demotion involved significant reduction in remuneration or duties for purposes of s.386(2)(c)(i) of FW Act, this section is an exception to general definition of dismissal in s.386(1) and will not apply if demotion is provided for in employment contract – necessary to consider s.386(1) – Commission found no intention to dismiss by respondent – respondent did not end employment relationship as it demoted applicant pursuant to employment contract – contract provided there was demotion in relation to performance – no repudiation of contract by respondent – found applicant resigned – Commission satisfied allegations against applicant substantiated and respondent’s investigation process satisfactory – applicant not forced to resign – resignation did not satisfy requirements of s.386(1)(b) – applicant not dismissed – application dismissed. Carter v MSS Security P/L
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