This passage from an unfair dismissal case sets out the legal priniples involved in determing whether a termination of employment is at the initative of an employer.
“A 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 have remained employed.59 There must be action by the employer that either intends to bring the relationship to an end or has that probable result.60
In determining whether a termination is at the employer initiative, it is necessary to examine all the circumstances including the conduct of the employer and the employee.61 The expression ‘termination at the initiative of the employer’ is a reference to a termination that is brought about by an employer and which is not agreed to by the employee.62
The analysis of whether there has been a termination at the initiative of the employer for the purposes of section 386(1)(a) is to be conducted by reference to the termination of the employment relationship, not by reference to the contract of employment operative immediately before the cessation of the employment.63“
Jowett v Idrilling Australia (2023) FWC 2017 delivered 13 November 2023 per Binet DP