TERMINATION OF EMPLOYMENT – termination at initiative of employer – resignation – s.394 Fair Work Act 2009– application for relief from unfair dismissal – applicant employed as General Manager with respondent in remote area of Northern Territory (NT) from 23 May 2016 to 5 December 2016 – respondent raised jurisdictional objections that applicant not protected from unfair dismissal as not covered by enterprise agreement and earned more than high income threshold; and applicant was not dismissed but had resigned – Commission satisfied applicant was covered by enterprise agreement – whether applicant resigned or was dismissed – incident occurred on 20 November 2016 in which company vehicle driven by applicant was stopped by NT Police – NT Police searched vehicle and seized significant amount alcohol in excess of amount prescribed under applicant’s Liquor Permit – applicant reported incident to respondent on 21 November 2016 and was told that they would await NT Police action – respondent submitted that NT Police contacted them on 23 November 2016 to inform it that charges would be laid against applicant – respondent then talked to applicant who offered verbal resignation and agreed to final day of 5 December 2016 – respondent explained that applicant would be terminated if he did not resign by then – applicant disputed this version of events and submitted that he did not meet with respondent until 24 November 2016 to note that he had not heard from NT Police – applicant submitted that he met with respondent on 25 November 2016 who suggested that he should resign – applicant submitted that he called respondent on 29 November 2016 to state that he would not be resigning and respondent stated he would be terminated if he did not by 5 December 2016 – on 5 December 2016 applicant reiterated he would not resign and was subsequently terminated by respondent – respondent submitted that applicant did not rescind his earlier offer of resignation until 5 December 2016 – Commission noted evidence suffers to degree of embellishment and inconsistency – found on balance of probabilities that applicant had agreed to resign no later than 28 November 2016 – found respondent formed view that applicant had changed his mind and therefore dismissed applicant on 5 December 2016 – found applicant was dismissed on respondent’s initiative – satisfied applicant protected from unfair dismissal – whether valid reason for dismissal – applicant terminated for possession of an illegal quantity of alcohol in company vehicle and breach of code of conduct – applicant contested breach of code of conduct and that behaviour insufficiently serious to warrant termination – Commission found valid reason for dismissal – applicant’s attempt to disregard NT liquor permit system justified dismissal – found applicant not unfairly dismissed – application dismissed. Kelly v Bawinanga Aboriginal Corp t/a Bawinanga Aboriginal Corporation
