Lecturer’s unfair dismissal claim backfires due to ‘clear and unambiguous’ resignation

A former lecturer at the Australian Catholic University (ACU) alleged he was unfairly dismissed and forced into a voluntary resignation.

Themes of both morality and lies were echoed throughout a recent unfair dismissal case featuring a long-time lecturer and his institution, who engaged in back-and-forth dialogue around a proposed resignation.

Dr Kee Fook Edmund Chia has been a senior lecturer at the institution and in the school of theology since 2011. Chia was tasked with both research and teaching responsibilities throughout his duration at the ACU.

In 2022, he was approved to work from a non-campus overseas location for semester one. However, to deal with a personal situation in late May 2022, Chia requested to be approved of having an indefinite remote working arrangement, to which he was refused.

First resignation

Chia then requested a long-service leave, which was also refused by the ACU on the basis that it was too short a notice. Chia then proclaimed he “desperately needed to be abroad in semester two of 2022” to which he “voluntarily submitted a notice of resignation to [his] supervisor stating [his] intention to cease employment at the beginning of semester two”.

After further discussions with his manager, Chia and the institution came to the agreement that he would be allowed to work remotely for semester two of 2022, on the basis that he would then take annual leave and long-service leave, after which his resignation would take effect.

This then resulted in Chia sending his resignation email, which went as follows:

“After due reflection and consideration of my personal circumstances, I wish to register my intention to take early retirement. Please accept this email as my official notice signalling my resignation from service at ACU as of 2 January 2023.”

However, shortly after, Chia sent another email, which he requested to be considered as the operative email. This was forwarded minutes later with a slight difference:

“After due reflection and consideration of my personal circumstances, I wish to register my intention to take early retirement. Please accept this email as my official notice signalling my intention to resign from service at ACU after exhausting my leave balance that I will begin taking as of 2 January 2023.”

Cross-examination revealed that Chia changed the date of the resignation for tax advantages, associated with taking leave while still employed. At first, Chia denied this premise; however, upon being presented with his own material, he admitted that this was part of his reasoning for the change.

The ACU submitted that the email reflects that the agreement had been reached. The ACU also claimed the arrangement was supported on their end only on the basis that they were arrangements prior to his retirement and which the university approved to accommodate his personal circumstances.

Chia stated, however, that he agreed to stay on board if he was allowed to teach abroad. Therefore, since his request to teach abroad in semester two was approved, he assumed the resignation was “effectively cancelled and invalidated”.

He also professed that any “intention to resign had to be eventually formalised through Staff Connect (which only [he could] submit)”.

This is commonly referred to by Chia throughout the case and could be referred to as his “trump card” in terms of his evidence of a lack of a resignation. He believes that the Notice of Separation is the only valid document certifying the end of employment.

Fair Work Commission deputy president Bernadette O’Neill came to the conclusion that the email did, in fact, signify a resignation, not accepting Chia’s disagreements.

“It is not at all plausible that the request for Dr Chia’s resignation came ‘out of the blue’ and not as part of an agreement the two men had reached, whereby Dr Chia would be allowed to work remotely, then retire when his leave balances were exhausted.

“Although Dr Chia did not believe his resignation would be ‘formal’ unless and until he completed an Employee Separation form, that does not alter the effect of his email,” O’Neill said.

Second resignation

At the end of 2022, the previous manager, who communicated with Chia about his resignation, left the ACU and was replaced.

On 8 November 2023, the new manager was contacted by the ACU’s HR team to advise him that Chia was to resign effective immediately on 2 January 2023, yet no resignation had been entered into Staff Connect.

The new manager requested a meeting with Chia to dissuade any confusion around the situation. To which Chia replied to the new manager on 21 February, saying he “had a ‘rethink’ of his situation and did not want to be pressured into submitting his resignation”.

On 24 February 2023, the new manager explained to Chia that he had provided a notice of his intention to resign on 17 June 2022, and the required notice requirement had been met; therefore, he gave him further instructions on how to complete the employee separation form.

This was the response from Chia came on the same day:

“Thanks for the advice on next steps. I’ve resubmitted my leave requests and will submit the resignation when I get to the Philippines. I leave Melbourne later tonight. Thank you very much for everything.”

However, Chia, through his evidence, argued that this email was, in fact, a farce, deployed in an attempt to buy himself time, in hopes that his leave requests would be approved. While he acknowledged this was a lie, he described it as a “lie in the face of an oppressive situation” and that “according to moral philosophy, you have the duty to tell the truth, but only to those who deserve the truth”. He claimed the manager in this situation did not deserve the truth.

Following on from this, on 1 March 2023, the manager sent through an final email, stating:

“Please provide an email, addressed to [colleague] and I, indicating clearly that you wish to resign from your position at ACU following the expiration of current leave entitlements. In addition, I suggest you liaise directly with [HR] to complete and formally lodge an Employee Separation form. Your full leave calculations and final day of work can be calculated through this process.”

“Current requests for long service requests (with Half-Pay) will then be approved.”

Chia replied, stating:

“This email is to inform you of my wish to resign from ACU upon exhausting all the leave that I am entitled to.”

Chia went on to claim that he was bullied into submitting his resignation and that he only sent it “out of fear that my leave requests will not be approved”. Therefore, he submits the email was not voluntarily given and cannot be treated as a resignation.

‘Moral theology’

O’Neill dispelled Chia’s claims, stating: “There is simply no basis to conclude that the resignation was not voluntarily given but was the product of coercion and force on the part of the ACU. There is also no suggestion that it was given in the heat of the moment.”

“Almost immediately upon receipt of [Chia’s] email on 6 March 2023, his leave was approved.”

O’Neill pulled no punches in his judgment, lamenting Chia’s evidence as merely “self-serving”.

“I did not find Dr Chia to be a compelling witness. His evidence was almost entirely self-serving … Further, he conceded that he had been dishonest in his communication with the ACU. Whilst the duty to tell the truth in moral theology may be qualified, there was no reasonable basis for him to lie to [the manager]. He did so because he erroneously believed that it served his interests to do so,” O’Neill said.

“Dr Chia voluntarily resigned on 17 June 2022 as part of an agreement to enable him to be approved to work overseas from an off-campus location. [He] was not forced to do so because of any conduct by the ACU. His resignation was clear and unambiguous, and the ACU merely acted on it.”