TERMINATION OF EMPLOYMENT – termination at initiative of employer – constructive dismissal – ss.385, 386, 394 Fair Work Act 2009 – respondent made a jurisdictional objection on 29 September 2016 – ‘termination is at the employer’s initiative when the employer’s action directly and consequentially results in the termination of employment and had the employer not taken this action the employee would remain employed’ [Mohazab] – respondent submitted applicant’s employment not terminated at the initiative of employer nor was he forced to resign – respondent stated they consulted with applicant regarding possible change to his role during a meeting on 9 August 2016 – applicant had opportunity to raise consideration between that meeting date and meeting on 15 August 2016 – applicant argued respondent unilaterally changed the his job description and without prior consultation – applicant was moved from a driver to a storeperson – applicant raised medical concerns regarding working in the freezer – argued change to role was put to him as an ultimatum – whether respondent was subject to the Small Business Fair Dismissal Code – Commission satisfied applicant was dismissed, dismissal not consistent with the Code and dismissal was not a case of genuine redundancy – found respondent did not have ability to unilaterally change applicant’s position when he did not agree to take on new role therefore no valid reason for constructive dismissal – determined applicant’s dismissal was harsh, unjust and unreasonable – Commission determined reinstatement inappropriate – Haigh v Bradken test considered for remedy of compensation – Commission unable to finalise determination of amount of compensation – requested further information – will order compensation to be paid in instalments once amount of compensation is known – further decision and an order to be issued within two weeks of receipt of requested information. Keogh v French Par-Bake
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