The distinction between a dismissal and a resignation is sometimes a fine thing.
“Consideration
[1] If Mr Calhan was not dismissed by the Respondent within the meaning of s. 386(1) of the Act, there is no jurisdictional basis for him to pursue an unfair dismissal application. More specifically, if Mr Calhan’s employment was not terminated at the initiative of the Respondent, or if my finding is that he was not forced to resign because of conduct or a course of conduct engaged in by the Respondent, there is no jurisdictional basis for him to pursue his unfair dismissal application.
[2] I am satisfied that as of 5 May 2025, Mr Calhan was considering his options and was very much open to moving on from his employment with the Respondent. He told Mr McDowell that he was “over” Mr Soale’s management style and ready to take other offers. Things had not worked out for Mr Calhan in relation to the level crossing removal project at Diggers Rest. His initial expectations regarding wages and conditions had not materialised and he was, in any event, subsequently removed from that project by Mr Soale. Mr Calhan was further aggrieved about his subsequent working arrangements and his dealings with the Respondent regarding parental leave. Mr McDowell impressed me as a credible witness. While he was visibly uncomfortable disclosing Mr Calhan’s views about his working relationship with Mr Soale in the presence of Mr Soale, Mr McDowell answered questions directly and his account was consistent and unchallenged. I accept Mr McDowell’s evidence that prior to 5 May 2025, he was told by Mr Calhan that he (Mr Calhan) was looking for work elsewhere. In particular, I prefer Mr McDowell’s evidence that Mr Calhan had sought permission for time off work for a job interview. I do not consider Mr Calhan’s account that he was simply seeking permission to have a generalised conversation with another employer during a work break about projects and the availability of work is credible. Further, Mr Calhan’s inability to recollect whether Mr McDowell had asked him how his job interview had gone was unconvincing. It lay in stark contrast to his capacity to recall the aspects of the factual background that supported his various propositions.
[3] I am satisfied that Mr Soale offered Mr Calhan the option of remaining in ongoing employment. I consider it unlikely that Mr Soale would have felt moved to offer Mr Calhan ongoing employment for a further 3-6 months knowing that there would be no commercial gain in doing so and that Respondent would be required to absorb the cost if he had regarded their relationship as fractured and dysfunctional. That Mr Soale maintained that he could have seen Mr Calhan’s employment enduring for a further 3-6 months despite Mr Calhan’s frank and somewhat unflattering testimony in relation to his management style and the state of their working relationship fortifies me in reaching this conclusion.
[4] While Mr Calhan referenced the cessation of his employment as a termination on and from 8 May 2025, Mr Soale simultaneously referred to it as a resignation scenario for which he sought Mr Calhan’s written confirmation and maintained this position throughout their correspondence. Having regard to the context I have outlined above, I am satisfied that it is more probable than not that the two options were presented to Mr Calhan on Monday 5 May 2025 and that Mr Calhan accepted the option of resigning with the payment of 5 weeks’ salary, without the requirement to perform further work for the Respondent after that day. To his credit, Mr Calhan then took steps to secure new employment and was fortunate enough to secure some almost immediately. By 30 June 2025, this new employment had materialised into an ongoing fulltime position with options to work on various projects and the availability of shift work payable at $90 per hour. I consider Mr Calhan’s return of the Respondent’s property on 7 May 2025 was consistent with him having tendered his resignation on 5 May 2025. I also consider it unlikely that Mr Calhan would have had continuing access to his timesheets and payslips through the Respondent’s ‘Xero’ system and the ‘Xero me app’ after 9 May 2025 if he had been terminated on the Respondent’s initiative.
[5] For the reasons outlined above, I am not persuaded that Mr Calhan’s employment was terminated at the initiative of the Respondent (s.386(1(a)). As to whether there has been a dismissal within the meaning of s.386(1)(b) of the Act, the test to be applied is whether the Respondent engaged in conduct with the intention of bringing Mr Calhan’s employment to an end or whether termination of the employment was the probable result of the Respondent’s conduct such that Mr Calhan had no effective or real choice but to resign. In this case, I do not consider that it was the Respondent’s intention to bring the Applicant’s employment to an end because I have been persuaded that Mr Soale offered Mr Calhan the alternative of ongoing employment. Nor do I consider the Mr Calhan’s resignation was the probable result of the Respondent’s conduct such that he had no effective or real choice but to resign because Mr Soale had confirmed the availability of ongoing employment in accordance with the terms of Mr Calhan’s contract of employment. While I accept that this alternative came with a caveat from Mr Soale that the ongoing employment was likely to be relatively short-lived, there was no actual deadline enunciated and nor were any foreshadowed limitations notified that were inconsistent with Mr Calhan’s contractual entitlements.
Conclusion
[6] Whereas s.385(a) of the Act requires the Commission to be satisfied Mr Calhan was dismissed, I uphold the Respondent’s objection to his unfair dismissal application because I am satisfied that there was no dismissal within the meaning of s.386 of the Act. I have concluded there was no termination of Mr Calhan’s employment on the Respondent’s initiative because I am satisfied he intended to resign his employment on 5 May 2025. Further, having regard to the circumstances of this case, I have not been persuaded that Mr Calhan’s resignation was “forced”. I have not been persuaded that the Respondent engaged in conduct or a course of conduct with the intention of bringing the employment to an end or that the termination of the Mr Calhan’s employment was the probable result of the Respondent’s conduct such that he had no effective or real choice but to resign. The effect of upholding the jurisdictional objection of the Respondent that Mr Calhan was not dismissed is that I am satisfied there was no harsh, unjust or unreasonable dismissal (s.385(b)). It follows that I have not been persuaded that Mr Calhan has been unfairly dismissed. His application fails and must therefore be dismissed. Given this conclusion, I will not issue an Order.”
Calhan v Realsurv Engineering Surveyors Pty Ltd – [2025] FWC 2749 – 15 September 2025 – Clancy DP