[2013] FWC 1588

Download Word Document

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Dejan Ivos
v
Queensland Property Investments Pty Ltd
(U2012/15056)

COMMISSIONER JONES

MELBOURNE, 15 MARCH 2013

Jurisdictional Objection - Was Applicant Dismissed - Resignation

Introduction

[1] On 13 November 2012, Mr Dejan Ivos (the Applicant) made an application for a remedy in relation to his dismissal under s.394 of the Fair Work Act 2009 (the Act). On 1 January 2013, Fair Work Australia was renamed the Fair Work Commission. In our decision we have referred to the Fair Work Commission (FWC) which incorporates reference to Fair Work Australia as it was known prior to 1 January 2013.

[2] This decision concerns an objection raised by Queensland Property Investments Pty Ltd (the Respondent); namely that the Applicant was not dismissed from his employment.

[3] Section 394 provides that a person who has been dismissed may apply to the FWC for a remedy. Section 385 provides that a person has been unfairly dismissed if amongst other things, that person was dismissed. Section 386 sets out the meaning of dismissed and relevantly provides:

(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) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

Factual Background

[4] The factual background to the determination of this matter is largely undisputed and is set out below.

[5] The Applicant was employed by the Respondent as a Storeperson. At the relevant time, the Applicant was a member of the National Union of Workers (NUW).

[6] On 27 October 2012 the Applicant was engaged in conduct which I describe in neutral terms as crossing over a moving conveyer belt (the incident) whilst performing cleaning duties at the Respondent’s Melbourne Regional Distribution Centre (the warehouse).

[7] A meeting was held between the Applicant and management representatives at the warehouse regarding the incident on the same day. Present at the meeting was NUW delegate, Marcus Harrington. 1

[8] There is no dispute that the management treated the incident seriously, regarding it as a breach of safety standards and policies at the workplace.

[9] A second meeting was held at the warehouse regarding the incident on 29 October 2012. Present at that meeting was the Applicant, an NUW delegate, Mr Wayne Trewella, Mr Brendan Townley Human Resources Manager, and Mr Damien Johnson, Operations Manager.

[10] In the course of the second meeting Mr Townley informed the Applicant that the Respondent considered termination as an option given their view that the Applicant’s conduct breached safety standards. 2

[11] On 31 October 2012, a third meeting was held at the warehouse regarding the incident. Present at this meeting was the Applicant, Ms Belinda Jacobi, NUW Organiser, Mr Townley and Mr Johnson.

[12] Prior to the meeting Ms Jacobi met with the Applicant and discussed the incident and what had transpired to that time. 3

[13] Having regard to the evidence of the Applicant, Ms Jacobi and Mr Townley, the agreed sequence of events and discussions at the third meeting can be summarised as follows:

(a) Mr Townley commenced by outlining to the Applicant the nature of the incident and the health and safety breaches involved. This outline followed notes in the Respondent’s Record of Formal Counselling/Interview session; 4

(b) There followed a break in the meeting during which the Applicant prepared a response to the matters raised;

(c) The meeting resumed and the Applicant wrote his response in the Record of Formal Counselling as follows:

I have been honest throughout the whole event. I am extremely upset about what I have done and am very remorseful. I wish to continue my employment to show that I can be a model worker for the company, fellow workers and myself.

I have worked hard for the company and myself for 12 years with a very good record and want the opportunity to redeem myself.

I will ensure that I always comply with health and safety procedures at all times to protect my health and the health of my co team members. 5

(d) There followed a break in the meeting during which time Mr Townley considered the Applicant’s response. 6

(e) The meeting resumed and Mr Townley stated:

Dejan, the company has already taken into account the matters which you have raised. However, the decision of the company is to terminate your employment. Our view is that it should be a summary termination which means you would not be paid any notice. 7

(f) Ms Jacobi then asked that she and the Applicant speak in private. Ms Jacobi’s evidence is that during their meeting, Ms Jacobi asked the Applicant if he preferred to resign as she believed it would assist having that on his resume when he looked for future employment. Ms Jacobi also said that in her view, if the Applicant resigned he would be entitled to 4 weeks notice in lieu under the relevant agreement. 8 The Applicant says he felt very shocked and distressed and that Ms Jacobi was “saying stuff and I was agreeing”.9 Ms Jacobi states that the Applicant responded to her saying that “if you think that’s best”.10 Ms Jacobi told the Applicant she would ask the company if he could resign.11

(g) Ms Jacobi then approached Mr Townley and asked if the company would consider resignation and pay in lieu of notice. 12 The company agreed to this course.

(h) Ms Jacobi then advised the Applicant the company had agreed to resignation with the 4 weeks payment in lieu of notice. She wrote a resignation letter for the Applicant dated 31 October 2012 which the Applicant read and then signed. 13

[14] The Applicant’s evidence is that he was not forced to resign by Ms Jacobi or anyone else. 14 Ms Jacobi states that she did not force the Applicant to resign, although the Applicant was obviously visibly stressed and overwhelmed.15 She concedes she did not ask the company for a further 24 hours for the Applicant to consider his position as her assessment was that he was in a position to sign the resignation letter.16

[15] The Applicant states that he reconsidered his action of resigning after he went home and talked to his Mum and brother and thought about it for a few days. 17 He filled out a Statutory Declaration signed on 5 November 2012 stating amongst other things that at the interview he was in “shock and disbelief” and “wasn’t in the right state of mind” and “unaware of my actions of what documents I was signing”.18 He said he felt it was unfair given that other employees had engaged in the same conduct. He telephoned the NUW and an unfair dismissal application was made by the NUW on his behalf.

Submissions

Respondent Submissions

[16] The Respondent submits that subsection 386(1)(b) of the Act is the relevant inquiry for the Commission in the circumstances of this matter. The Respondent submits that the subsection necessitates two factual inquiries. The first being whether there was an act or purported act of resignation. The second being whether the Applicant was forced to resign.

[17] The Respondent relies on the uncontested facts regarding the meeting held on 31 October 2012 (see summary at [13]). The Respondent concedes the test is an objective one but submits that the evidence of the Applicant and Ms Jacobi, that the Applicant was not forced to resign, is relevant and ought be given proper weight. The Respondent submits that, in effect, the Applicant, acting on the competent advice of an experienced Organiser that resignation would be in his best interest, resigned. There is no evidence to suggest that the Applicant was forced to resign because of the conduct of the employer.

[18] The Respondent submits that the circumstances are on all fours with the factual matters in the decision of Commissioner Deegan in Knight v Wattyl Australia Pty Ltd (Knight). 19 In Knight the applicable provision of the Workplace Relations Act 1996 was s.642(4) which provided:

4) For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer.

[19] The factual matters were in summary: 20

(a) The Applicant was told at a meeting that the company had decided to terminate his employment;

(b) The Applicant’s union representative first asked if there was an alternative to termination and then asked if resignation was an option. The company stated resignation was up to the Applicant;

(c) The union representative advised the Applicant to resign on the basis it would be better for the Applicant’s future employment prospects;

(d) The Applicant provided his resignation in writing; and

(e) The following day the Applicant advised the company he would like to retract his resignation until he obtained legal advice.

[20] Having considered the matter, Commissioner Deegan concluded:

[50] In the matter before me the applicant gave clear evidence that he was not “forced” to resign by any action of his employer. While the evidence shows that the applicant decided to resign as a direct consequence of the decision taken by his employer to terminate his employment, his decision was not “forced” upon him by his employer. The applicant chose to resign, on the advice of his union representative, in order not to have the “stigma” of having been terminated by his employer for sending, receiving and storing inappropriate emails. He took his decision after a private discussion with his union representative. The matter of resignation was not raised, let alone proposed, by the employer. The employer representatives made their position clear to applicant. Their interest was in the investigation and the decision to terminate his employment that had resulted from that investigation. They clearly informed the applicant that any decision he wished to make concerning a resignation was entirely a matter for him and they had no wish to even be party to any discussion about it. [sic] 21

[21] Commissioner Deegan found there was no termination at the initiative of the employer and dismissed the matter.

Applicant’s Submissions

[22] The Applicant submits that subsections (1)(a) and (b) of s.386 of the Act are expressed disjunctively and the Applicant need only satisfy one of the matters specified in order to satisfy the requirement in s.385 of the Act that he has been dismissed.

[23] The Applicant submits that his employment was terminated on the employer’s initiative.

[24] The Applicant relies on the extracts from authorities on the meaning of the phrase ‘termination at the initiative of the employer’ extracted in the Full Bench decision in Barkla v G4S Custodial Services Pty Ltd 22 (Barkla) as follows:

[24] It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (References omitted) 23

[25] The Applicant submits that the authorities require the Commision decide whether the actions of the employer, directly or as a consequence, caused the termination, or were they actions which on a reasonable view, probably have that effect.

[26] The Applicant submits that the sequence of events during the meeting held on 31 October 2012 is relevantly:

• The Respondent sets out allegations against the Applicant;

• The Applicant responds, saying he wants to maintain his employment;

• The Respondent considers the response, during the break, and then communicates to the Applicant its decision to terminate the Applicant’s employment;

• The Applicant submits his resignation but subsequent to the decision to terminate the Applicant’s employment. 24

[27] The Applicant submits that it was the decision of the Respondent to terminate the Applicant’s employment which was the critical action in the Mohazab sense. The action of the Respondent to terminate the employment was intended to bring the employment relationship to an end and was action which would have had that probable effect.

Consideration

[28] Turning first to whether the Applicant’s employment was terminated on the Respondent’s initiative.

[29] In considering the test as set out in Barkla, which is an objective test, regard must be had to all the circumstances and not only the act of the employer. This much is apparent from the decision of the decision of the Full Bench in Pawel. It is the entire process commencing with the act of the employer which must be considered.

[30] In this matter there is no doubt that in the course of the meeting on 31 October 2012, the employer informed the Applicant that it had taken a decision to terminate the Applicant’s employment and that termination should be summary termination.

[31] However, matters did not stop there. The Applicant’s union Organiser asked for a break to speak to the Applicant alone. In the course of the break, acting on what can only be seen as the advice of a competent and experienced industrial Organiser, the Applicant decided to ask the Respondent if he could tender his resignation instead, and, with that, be paid a period of notice in lieu.

[32] The union Organiser put this request to the Respondent and the Respondent accepted the Applicant’s resignation.

[33] Of course the Respondent had decided to terminate the Applicant’s employment and had expressed the view that the termination should be summary. However, before the Respondent took steps to give effect to its decision, the Organiser intervened. After a break in the meeting, the Organiser, acting on behalf of the Applicant, asked the Respondent to withdraw its decision to terminate the Applicant and allow the Applicant to resign instead. The Respondent agreed not to give effect to its decision to terminate the Applicant and the Applicant resigned. There was, in effect, a novus actus interveniens.

[34] Objectively, there was no action by the employer intended or which would have the probable result of ending the employment relationship. The critical action ending the employment relationship was in substance the decision by the Applicant to resign.

[35] I find that the termination of the Applicant’s employment on 31 October 2012 was not at the employer’s initiative.

[36] Turning to the second limb of s.386(1)(b). The Applicant signed a resignation letter on 31 October 2012 with effect immediately in the presence only of his union Organiser. I am satisfied the Applicant resigned from his employment.

[37] I am satisfied the Applicant’s representative set out the benefits to be derived from resigning and asked the Applicant what he wanted to do. The Applicant agreed to this course. No doubt, in the circumstances the Applicant was extremely distressed, however, no request was made to delay his decision making, nor did the Organiser form the view that the Applicant’s clear distress rendered him incapable of making a decision or signing the resignation letter. There is no question that the Organiser is competent and experienced in industrial relations.

[38] Both the Applicant and the Organiser stated clearly that the Applicant was not forced to resign.

[39] Given the sequence of events on the day, the Respondent played no part in the Applicant’s decision to resign. That decision was made freely and in private with his representative.

[40] In these circumstances, I find that the Applicant was not forced to resign because of conduct, or a course of conduct, engaged in by the Respondent.

Conclusion

[41] Consequently, I find that the Applicant was not dismissed.

[42] Accordingly, the Applicant’s application for remedy from unfair dismissal is dismissed.

COMMISSIONER

Appearances:

Mr D. Mujkic appearing on behalf of the Applicant.

Mr N. Harrington of counsel appearing on behalf of the Respondent.

Hearing details:

2013

6 March

Melbourne

 1   Witness Statement of Dejan Ivos, Exhibit I1 at [11]

 2   Witness Statement of Brendan Reginald Townley, Exhibit Q3 at [77]; Transcript of Hearing at PN370-PN372

 3   Transcript of Hearing at PN381, PN566-PN567

 4   Exhibit Q3 at [87], Attachment ‘BT-22’ to Exhibit Q3

 5   Exhibit Q3 at Annexure ‘BT-22’; Transcript of Hearing at PN402

 6   Ibid at PN759

 7   Exhibit Q3 at [89]

 8   Witness Statement of Belinda Jacobi, Exhibit I2 at [13], Transcript of Hearing at PN408-PN409, PN600-PN603

 9   Ibid at PN413

 10   Exhibit I2 at [13] and Transcript of Hearing at PN609

 11   Ibid at PN432

 12   Exhibit I2 at [13], Exhibit Q3 at [91]

 13   Exhibit I2 at Annexure II, Transcript of Hearing at PN414-PN415, PN627, PN436

 14   Ibid at PN416-PN417

 15   Ibid at PN621-PN623

 16   Ibid at PN625-PN626

 17   Ibid at PN423

 18   Exhibit I1 at Annexure IV

 19   PR 974876

 20   Ibid at [8], [21] and [29]

 21   Ibid at [50]

 22   [2011] FWAFB 3769

 23   Ibid at [24]

 24   Transcript of Hearing at PN1057-PN1058

Printed by authority of the Commonwealth Government Printer

<Price code C, PR534809>