1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Christopher Cole
v
Rydlyme Inernational Pty Ltd T/A Rydlyme
(U2014/3609)
COMMISSIONER CLOGHAN PERTH, 30 JUNE 2014
Unfair dismissal.
[1] On 6 January 2014, Mr Christopher Damien Cole (Mr Cole or Applicant) made
application to the Fair Work Commission (Commission) seeking a remedy for alleged
dismissal from his former employer, Rydlyme International Pty Ltd T/A Rydlyme
(Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] In his application, the Applicant asserts “...He was dismissed by his father, the
Managing Director of the company...The real reasons for the dismissal of the Applicant by his
father are related to unrelated personal issues Mr Cole Snr has with his family”.
[4] In response to the application, the Employer asserts that Mr Cole resigned.
[5] At the hearing on 6 June 2014, the Applicant represented himself and gave evidence
on his own behalf. Ms B Diamond, the Applicant’s partner/girlfriend also gave evidence on
behalf of Mr Cole.
[6] The Employer was represented by Dr K Cole, who is the Applicant’s father. Dr Cole
gave evidence for the Employer as did Mr G Evans, Sales Manager.
[7] To avoid any confusion in this Decision, the Applicant is referred to as Mr Cole and
the Employer’s representative as Dr Cole.
[8] For completeness, Mr Cole is a 5% shareholder in the Employer’s business.
[9] At the conclusion of the hearing, I reserved my decision. This is my decision and
reasons for decision.
[2014] FWC 4173
DECISION
E AUSTRALIA FairWork Commission
[2014] FWC 4173
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RELEVANT LEGISLATIVE FRAMEWORK
[10] Pursuant to s.385 of the FW Act, a person has been unfairly dismissed if the
Commission is satisfied that:
“the person has been dismissed”.
[11] Section 386(1) of the FW Act sets out the meaning of dismissed. A person has been
dismissed if:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the
employer’s initiative; or
(b) ...”
[12] The Applicant did not assert that he resigned from his employment because of conduct
or a course of conduct by his employer.
EMPLOYER’S CASE
[13] The Employer states that:
the Applicant returned from two weeks annual leave on 27 November 2013;
the Applicant visited his family doctor on return from annual leave and obtained a
medical certificate declaring him unfit for work until 11 December 2013;
the Applicant attended his workplace on 28 November 2013 and a robust
discussion took place between Mr Cole and Dr Cole. When Dr Cole asked what
was medically wrong with the Applicant, Mr Cole responded “none of your f...
business”. In answer to the question of when he was returning from sick leave, the
Applicant stated that he was not coming back to work. At the conclusion of the
discussion, Mr Cole stated “I am resigning” and walked out of the office1;
later on the same day, Mr Cole returned to the workplace and provided to
Mr Evans the medical certificate;
on 2 December 2013, Mr Cole attended the workplace and sought the payment of
monies for alleged accrual of leave. Mr Cole refused to leave the work premises
until he received some monies. Dr Cole who was, at that time, required to be at the
airport for a trip to Indonesia, transferred $3,500 to Mr Cole’s account; and
1 Exhibit R2
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on 5 December 2013 while in Indonesia, Dr Cole emailed Mr Cole accepting his
resignation and noting 16 December 2013 as his final day of employment;
on 14 December 2013, Mr Cole responded. Dr Cole, in turn, responded on
16 December 2013 rejecting any fabrication by Mr Cole that he did not resign but
“merely intended to resign”2.
APPLICANT’S CASE
[14] The Applicant asserts that:
he returned from annual leave and attended the family doctor “for issues relating to
my return to work and recent financial pressure...He [family doctor] suggested
taking time off work to assess my situation and to try and resolve some of these
issues”3;
at the meeting on 28 November 2013, the Applicant informed Dr Cole that he was
“no longer happy working with him or in a company that was not growing. I
suggested that I would start looking for alternative employment but that this would
not happen before the end of January/February”4;
he received Dr Cole’s email of 5 December 2013 accepting his resignation;
on 14 December 2013, he responded to Dr Cole’s email of 5 December 2013
stating that he did not verbally tender his resignation but he did state was that he
was not happy working with Dr Cole any longer and would start looking another
job. Mr Cole advised that as it was nearing Christmas he would not be leaving
before the end of January at the earliest and would give Dr Cole the required two
weeks’ notice once he had confirmation of a new position; and
on 16 December 2013, Mr Cole received an email from Dr Cole advising the
Applicant that he [Mr Cole] had misunderstood his email of 5 December 2013.
[15] This application was made on 6 January 2014 citing 16 December 2013 as the date of
the dismissal and the date the dismissal took effect.
CONSIDERATION
[16] In view of the Employer’s jurisdictional objection to the application, it is necessary to
determine whether the Applicant resigned on 28 November 2013 as asserted by the Employer.
[17] This application is unusual in that the Applicant is not only an employee but a 5%
shareholder in the Employer’s business, son of the Managing Director and founding business
partner.
2 Exhibit R3
3 Exhibit A1
4 Exhibit A1
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[18] There is no dispute that the Applicant and Dr Cole had a heated discussion on
28 November 2013.
[19] Dr Cole’s oral evidence was that at the outset of the discussion with the Applicant on
28 November 2013, Mr Cole indicated that he intended to resign in January/February 2014
but would not return to work while on sick leave.
[20] Dr Cole indicated that he was unhappy with his son’s intentions. Following further
discussions, Mr Cole stated “I resign”5.
[21] In cross examination, Dr Cole gave evidence that:
“...Going back to your resignation, just to confirm the happenings of the day, you didn't
walk in and say, "I resign," straightaway. It was after discussion and I asked you why
and you turned around and said, "I resign," and walked out of the office. You didn't
come in and blatantly say, "I resign." You came in quite verbose and telling me that
you're sick of all the verbal BS.
Right?---I couldn't understand why after a two-week holiday period you'd come back
with that attitude, but that's beside the point.
I disagree and I actually sent you an email in response to your email stating that I
actually resigned...I actually stated to you that that was not what I had stated, that what
I was actually doing was giving you the courtesy to let you know that I was thinking
of leaving which is probably a conversation we've had 100 times over the years?---
Yes, but there were other people present and heard it. That's why - - -
The only people present were Mr Glyn Evans and my partner Belinda at the
time?---Belinda wasn't in the office.
Yes, she was. She was with me because we had been to the doctor's together. She
was there?---All right, but you've admitted that in an email to Mr Evans that you did
resign.”6 (my emphasis)
[22] I now turn to the evidence of Mr Evans.
[23] Mr Evans did not have a written witness statement and gave oral evidence that there
was a heated discussion between Mr Cole and Dr Cole and he went into Dr Cole’s office and
heard the following:
“Mr Evans...You tell me what you heard in all its glory?---Basically what I – I said that
I was present at the discussion and Chris just – he just said, "Look, I was unhappy to
work – I'm not happy to continue working here," and he was sick and tired of all the
bullshit and Chris said – his dad said to him, "Well, when will were you intending
leaving?" and he did say in January or February and then Keith asked Chris – he said,
"Well, look, you know, when are you coming back to leave? You've just returned
back from two weeks in Bali," and he said, "Well, when are you returning back to
5 Transcript PN89
6 Transcript PN214 to PN218
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work?" and Chris said, "I'm not coming back," and then Keith then asked Chris, "Why
aren't you coming back?" and he said something about, "I'm on medical leave," and
then the discussion got quite heated and I know Chris threw his hands up and he said,
"Well, I resign," and he walked out the office and then he came back to my office
about a few minutes later with his girlfriend and handed me a medical certificate from
the doctor which had put him on medical leave from then up until, I think, 10
December and then he came and gave me another one, I think, on 10 December.
We've got copies of those from the doctors. He gave me another one on 10 December
which put him off till, I think, 24 or 25 December.”7
“He came into your office?---He came into my office probably less than an hour later. I
think, yes, they'd probably gone downstairs and come back with – and handed the
medical certificate to me.
I understand from what you're saying that it was a fairly agitated conversation with his
father in the office?---Yes. Well, most of the conversations between father and son
were not what I call a normal father-son discussion. They ended up swearing at each
other, calling each other names and all that.”8
[24] Mr Evans also gave evidence of the meeting between Mr Cole and Dr Cole on
2 December 2013 in which he was present. Shortly put, his evidence was that Mr Cole stood
over Dr Cole and demanded money9.
[25] After the meeting on 2 December 2013, Mr Evans’ contact with Mr Cole was minimal.
Mr Evans’ evidence is that:
“...I may have seen him a couple of times. When he was coming back with Paul
Nichols in the removal truck, I saw him in the laneway, but I never really had a reason
to talk to him. He was working with Paul and that's all I knew. I think I spoke to him
once when I saw him about what he was doing and he told me he was working for –
yes, he did. He told me he was working for Paul Nichols. He told me he was getting
paid cash in hand $30 an hour and he was – his actual words was, "Well, I think I'm
earning more than I was getting paid here," or something like that; words to that
effect.”10
[26] Mr Evans and Mr Cole communicated by email on 10 and 13 December 2013.
[27] Mr Cole’s email to Mr Evans of 10 December 2013 relevantly states:
“This is the email that I received from Keith [Dr Cole] accepting my resignation.
As you were present during the conversation and can verify that at no point did I
tender my resignation but rather that I was not happy working with you [Dr Cole] any
longer and would start looking for another job. I also advised that as it was nearing
Christmas I would not be leaving before end of January at the earliest and I would give
7 Transcript PN393
8 Transcript PN395 to PN398
9 Transcript PN403
10 Transcript PN408
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you [Dr Cole] the required two weeks’ notice once I had confirmation of a new
position.
Can you please confirm this was your understanding.”11 (my emphasis)
[28] Mr Evans relevantly responded to Mr Cole on the same day (10 December 2013):
“I was present when you and your Dad had the discussion in the office. My
understanding was that you advised your dad that you could no longer work for him
and that you were looking for another job and that you would tender your resignation.
When Keith asked when you intended leaving, you said that you would leave
sometime next year in January or February and you would give him two weeks’
notice when you had found another job.
Keith mentioned to you that what was the point in you staying as you did not
have the business at heart and you said I am sick of all the bullshit and I resign
and you walked out.”12 (my emphasis)
[29] Mr Cole responded on 13 December 2013:
“The last sentence is actually incorrect.
What I said was, I am sick of all the bullshit and that’s why I’m resigning”.13
[30] I found Mr Evans a reluctant witness. In making that statement, I mean he felt
uncomfortable being placed between son and father who, from the evidence, had a very
acrimonious relationship. However, my observation is that Mr Evans advocated for neither
party but gave his evidence truthfully as he saw events unfold.
[31] Mr Cole asserted that Ms Diamond was present during the discussion between
himself, his father and Mr Evans and could verify that he did not resign from his employment.
[32] Firstly, Ms Diamond states in her written witness statement that she was “present”
during the discussion between father and son and Mr Evans.14
[33] Further, “At no point during the time we were in the office, did I hear Chris [Mr Cole]
suggest that he was resigning on the spot or anything to that effect...”15
[34] When cross examined by Dr Cole, Ms Diamond confirmed in her oral evidence that
she was present in Dr Cole’s office during the discussion with Mr Cole and Mr Cole did not
“suggest he was resigning on the spot or anything to that effect...”16
[35] However, the following exchange occurred in cross examination:
11 Exhibit R3
12 Exhibit R3
13 Exhibit R3
14 Exhibit A3
15 Exhibit A3
16 Exhibit A2
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“Would you like to think about where you were?---We were in the reception area.
You weren't in my office. Correct?---No, not in your office. We were outside in the
reception area.
Around the corner near Mr Evans's office. Is that correct?---We weren't in Mr Evans'
office.
No, you were in the corridor outside Mr Evans's office just waiting at reception?
---At the end of the conversation, yes, but at the beginning we were standing at
reception.
So how can you categorically say that Christopher didn't resign or the conversation we
engaged was – what I said as being incorrect?---The conversation was quite heated
and I could still hear quite a lot of what was said and I never heard Chris make that
statement.”17 (my emphasis)
[36] I found Ms Diamond a very dissatisfying witness. When confronted with what was
clearly a lie regarding her presence at the discussion between Mr Cole and Dr Cole, she
attempted to redeem the mistruth by stating that she “could still hear quite a lot of what was
said”18. I found Ms Diamond’s evidence evasive until confronted with facts. In summary,
Ms Diamond’s purported evidence regarding what she did not hear was convenient and
adopted to suit the circumstances that her boyfriend/partner found himself in.
[37] To demonstrate Ms Diamond’s manner as a witness in cross examination, she gave the
following evidence regarding a telephone conversation with Dr Cole which was recorded
without his knowledge or permission using the pretext of a potential employer seeking a
verbal reference for Mr Cole. Ms Diamond was not present for the recorded telephone
conversation but knew it was taking place:
“Could I just ask with respect to the tape-recording of my reference for Chris the other
day, do you believe it's just and legal to do such a thing?---Illegal?
Legal?---Legal.
Do you think it's just and legal?---Well, given that I work in a job where every
phone call's recording - - -
THE COMMISSIONER: Ms Diamond, just answer the question?---Perhaps in the
sense of using it today, no, but for obtaining it for the reasons that Chris desired, yes.
Doesn't it reinforce the fact that I didn't sack him for any reason? I've always found
him a good worker, an ethical person, but under the grounds of, one, he tendered a
resignation to me and the fact that he told me that he was sick of all the BS and verbal
abuse I took it that he didn't want to work for me and I accepted his resignation.
Would that be a fair statement?---He advised you of his intention to resign. He'd
17 Transcript PN731 to PN735
18 Transcript PN735
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never ever resigned. I certainly didn't hear him resign on the spot or that - - -“19 (my
emphasis)
[38] The transcript of the telephone conversation was made the day before the hearing on
5 June 2014. It can be reasonably inferred that the telephone conversation was made with the
intention of hoping Dr Cole would say something which strengthened the Applicant’s case
and undermined the Employer’s case.
[39] It is not necessary to speculate who instigated the telephone conversation but it was
done with the full knowledge of Mr Cole, Ms Diamond and a friend of theirs.
[40] However, parts of the transcript read as follows:
Caller: “...you’re the managing director and what was Christopher’s [Mr Cole]
reason for leaving”.
Dr Cole: “It was his own decision, it’s working a family business, I’m his father”.
Dr Cole: “We just had a personal conflict”.
Dr Cole: “He decided...he’s an excellent worker. I mean I was disappointed he left
but it’s one of these things that happen”.
Caller: “...so you would describe Chris [Mr Cole] as a good employee”.
Dr Cole: “excellent”.
Dr Cole: “...we just had a personal falling out and we just couldn’t see eye to eye
as a father and son”.20
[41] In view of the fact that both parties were unrepresented, it is unsurprising that no party
referred to any case law with respect to whether Mr Cole resigned or had his employment
terminated by Dr Cole.
[42] I have considered Bernadette Minato v Palmer Corporation Ltd [1995] IRCA 316
(Minato) and Ngo v Link Printing Pty Ltd [1999] AIRC 57 (Ngo) to determine whether any
“special circumstances” exist, judged objectively, which demonstrate that Mr Cole had not
intended to resign from his employment.
[43] The circumstances of this particular application are that Mr Cole returned from two
weeks’ annual leave, immediately went on two weeks’ sick leave, advised his father that he
intended to resign his employment in January/February but would not be returning to work in
the intervening period. When Dr Cole took issue with this proposed course of action to be
adopted by his son, Mr Cole resigned. Mr Cole’s resignation was witnessed by Mr Evans.
[44] Judicial Registrar Murphy in Minato set out the legal position when referring to
Sovereign House Security Services v Savage” [1989] IRLR 115 where at 116 May LJ said:
19 Transcript PN736 to PN741
20 Exhibit A2
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“in my opinion, generally speaking, where unambiguous words of resignation are used
by an employee to the employer direct or by an intermediary, and are so understood by
the employer, the proper conclusion of fact is that the employee has in truth resigned.
In my view tribunals should not be astute to find otherwise ....”
[45] In Ngo the Full Bench at paragraphs [17 and [18] stated:
“[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a
decision of the Employment Appeal Tribunal (UK), in which it was held that words of
dismissal spoken in the heat of the moment were ineffective if withdrawn immediately
the heat had died down. Gray J said that he regarded this decision as confined to its
facts and therefore as not extending beyond permitting the withdrawal of words uttered
in the heat of the moment, when those words are retracted swiftly (pp.110-111).
[18] In Mr Ngo's case, assuming in his favour that his resignation was given in the
heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled
to withdraw his resignation on the day following the giving of it.”
[46] The relationship between father and son, employer and employee was very fractious.
The evidence is that Mr Cole had made up his mind to leave his employment and following a
very disagreeable conversation with his father, resigned and walked out of his father’s office.
[47] Following a further altercation between father and son on 2 December 2013, Dr Cole
flew to Indonesia and shortly afterwards, on 5 December 2013, put in writing acceptance of
his son’s resignation and advising him that his employment would cease on 16 December
2013.
[48] Nine days later, Mr Cole claims that he did not tender his resignation but was prepared
to accept a redundancy package of “2 years wages + payout and sign over the Nissan patrol to
me”21.
[49] During the two weeks, Mr Cole, even though he was on sick leave, does not contest
that he was working on a removal truck and getting paid cash-in-hand in full view of
Mr Evans.
[50] The Employer is a small business and at the time Mr Cole ceased employment it had
three employees. I have considered the communication between the Employer and the
Applicant both in the context of a small business and the father/son relationship. The
communications are not finely crafted as you would expect of a large employer who would
have access to human resources or legal expertise; the communications are conversational,
refer to family matters but essentially attempt to tip-toe through the ending of an employment
relationship. This relationship was overlaid with drugs, mental health, accusations and counter
accusations of money matters and other domestic relations.
[51] Having had the opportunity to closely observe the Applicant and his witness giving
evidence, I find that Mr Cole resigned from his employment in clear and unequivocal terms
and his Employer was entitled, and did, accept the resignation.
21 Exhibit R3
http://www.austlii.edu.au/cgi-bin/LawCite?cit=%5b1983%5d%20ICR%20314
[2014] FWC 4173
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[52] Given the verbal nature of the resignation, there was the inevitable conflict of what
was said. Where there is conflict between the Applicant and the Employer, I consider the
evidence of Dr Cole and Mr Evans preferable.
[53] Mr Cole seems to believe that because he put in writing 16 days after the discussion
with his father, that he only intended to resign that the Commission should accept this
evidence in preference to the oral evidence given by Dr Cole and Mr Evans of what he
actually said on the day. Further, that his email should be preferred to his father’s email
approximately seven days after the event and Mr Evans’ email 10 days after the discussion. I
am not prepared to do so.
[54] Mr Cole also appears to have the view that Ms Diamond is a corroborating witness to
the fact that he did not resign; Ms Diamond was anything but a corroborating witness.
Despite not being present, Ms Diamond adopted the view that although she was not present
during the discussion, because she had not heard her boyfriend/partner not say “I resign”, he
did not utter such words. The dangers of such a proposition are obvious and not a sound basis
for the Commission to be satisfied what Mr Cole said or did not say.
[55] Despite my repeated efforts to get the parties to resolve their differences without the
necessity of the Commission coming to a conclusion on the application, this was not possible.
CONCLUSION
[56] In conclusion, for the reasons set out above, I find that Mr Cole resigned from his
employment. Having reached such a finding, Mr Cole is not protected from the unfair
dismissal provisions of the FW Act because he has not been dismissed pursuant to s.385 of
the FW Act. Accordingly, the application must be dismissed. An order to this effect is issue
jointly with this decision.
COMMISSIONER
Appearances:
Mr C Cole, the Applicant.
Dr K Cole, for the Respondent.
Hearing details:
2014:
Perth,
6 June.
Printed by authority of the Commonwealth Government Printer
[2014] FWC 4173
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Price code C, PR552352
