DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sean Jen Eyong Tan
v
Vital Packaging
(U2016/14095)

Termination of employment - jurisdiction - resignation.

[1] This decision concerns an application made by Mr Sean Tan (Mr Tan or the Applicant) for an unfair dismissal remedy under section 394 of the Fair Work Act 2009 (the Act). The Respondent is Vital Packaging (the Respondent).

[2] The Respondent objects to the application on the grounds firstly that it asserts Mr Tan was not dismissed at the initiative of the employer and alternatively if he was the dismissal was consistent with the Small Business Fair Dismissal Code.

[3] At the hearing of this matter evidence was given by Mr Tan on his own behalf and he provided a statement made by Mr Patrick John Buck (Mr Buck), the Respondent’s Warehouse Manager, which was accepted into evidence with the Respondent’s consent. Mr Buck however was not present at the hearing and was not able to be questioned on his statement consequently to the extent that Mr Buck’s evidence is inconsistent with the evidence of the Respondent’s witnesses I prefer the evidence of those witnesses. For the Respondent evidence was given by Mr Robin Vickery (Mr Vickery) a working Director of the Respondent, Mrs Marcia Vickery (Mrs Vickery) who was also a working Director of the Respondent, Ms Kerry Patea (Ms Patea) who is employed as an Administrator with the Respondent and Mr Philip McMillan (Mr McMillan) an Accountant whom provides consulting and business services to the Respondent.

The evidence and factual findings

[4] Having considered the evidence of all the witnesses I find that, Mr Tan was first employed in March 2009. In 2012 he was promoted to the position of Office Manager. He later resigned his position to pursue his studies however continued to work on the Respondent’s website on weekends. In July 2013 he was asked to return on a part-time basis which he did.

[5] Mr Tan resumed work with the Respondent on a full-time basis in February 2014.

[6] Mr Tan was the Office Manager and Purchasing Officer but also undertook customer service duties, provided IT support and helped in the warehouse as required.

[7] Mr Tan’s evidence which I accept is that on Friday, 11 November 2016 he had an argument with Mrs Vickery. He says the reason for this was that since his return from holidays, only 3 days earlier, Mrs Vickery had repeatedly asked what he was doing when he was in the warehouse. He felt her repeated questioning of him was unreasonable and asked to meet with her to discuss this.

[8] The meeting between Mr Tan and Mrs Vickery occurred before midday on Friday, 11 November 2016. Mr Tan agrees that the meeting became heated.

[9] The unchallenged evidence of Mrs Vickery is that Mr Tan was very agitated and was pointing his finger at her in the meeting. He raised his voice and yelled that she had been on his back and had dragged him away from the warehouse 5 times in recent days. Mrs Vickery attempted to explain to him that he had been in the warehouse area a lot and there are 2 full-time storemen to do that work. Mr Tan however was getting angrier and yelling. Mrs Vickery I accept was feeling very uncomfortable, threatened and intimidated. Mr Vickery then entered the room.

[10] Mr Tan continued to yell and point at her repeatedly referring to her as “she”. Mrs Vickery asked him not to refer to her this way and he yelled back “Why not? You are female, aren’t you?” In reply she said to him “You have crossed a line Sean”.

[11] Mrs Vickery’s evidence which was not challenged was that after Mr Vickery came into the office Mr Tan said “I don’t care” and “You can have your fucking job” and “I don’t fucking care”. In reply Mr Vickery said something like “Sean, we need to discuss this before you leave” but Mr Tan ignored him and he left the main office. Her evidence was that Mr Tan then went to his desk in the general office area and collected personal items from his desk and drawer and he left the office at about 12 noon.

[12] Mr Vickery’s evidence was generally consistent with Mrs Vickery’s. His evidence was that when he came into the office where Mrs Vickery was, Mr Tan was being very loud aggressive and was angry. He was concerned because Mr Tan was yelling and being abusive and could be heard by the other staff and by customers.

[13] Mr Vickery’s unchallenged evidence was that Mr Tan yelled “You can have your fucking job” and “I resign” and “I don’t fucking care”. Mr Vickery was concerned not to inflame the situation and I accept he said to Mr Tan something like “Calm down and think this through” Mr Tan however replied “No, I am going, I’ve had enough, I am out of here” and then left the office.

[14] Mrs Vickery was visibly upset and shaking at this point.

[15] Mr Tan’s evidence was that Mr Vickery told him to leave and that Mr Vickery would call him the following day, Saturday. Mrs Vickery’s evidence does not indicate that Mr Vickery told Mr Tan to leave and he would call him and Mr Vickery’s evidence is expressly that this did not occur. Considering this issue, on the balance of probabilities, I do not accept Mr Tan’s evidence that Mr Vickery told him he should leave nor that he would ring him the next day.

[16] Mr Tan under cross-examination initially denied that he said “I resign” however acknowledged that he could have said this because he cannot recall exactly what he said. 1

[17] The evidence of Ms Patea also confirms the above sequence of events.

[18] Ms Patea’s evidence was that on 11 November 2016 she saw that Mr Tan had become agitated after Mrs Vickery had asked that he come and work in the administration area.

[19] Her desk is directly opposite Mrs Vickery’s office door and shortly later she heard yelling coming from the office even though the door was closed. She does not remember what was said but was clear that Mr Tan was doing the yelling. She spoke to Mr Vickery and told him he needed to go into the office to see what was happening because by this time the yelling was very loud and there was a lot of swearing.

[20] Ms Patea says after Mr Vickery went into the office there was more yelling and swearing again mainly from Mr Tan however Mrs Vickery was also yelling but her evidence was it sounded like Mrs Vickery was trying to get Mr Tan to stop and she sounded upset.

[21] Mr Tan then walked out of the office towards his desk and the arguing backwards and forwards continued. Ms Patea’s evidence is that Mr Tan said “Why is she doing this?” and then there was some more yelling with Mrs Vickery saying “You have crossed the line” and Mr Tan said “That’s enough”.

[22] Her unchallenged evidence was that her impression from the tone of the argument and the way that Mr Tan packed up his belongings and left the building was that he had quit his job.

[23] Ms Patea and Mr Tan were friendly. Her evidence was that in the past Mr Tan had sometimes complained about Mrs Vickery and said words to the effect that if things continued he would quit.

[24] Mr Tan under cross-examination acknowledged that he did tell Ms Patea previously that he intended to resign but not that he had resigned.

[25] That evening at 6.35 p.m. Mr Tan and Ms Patea exchanged text messages which included the following from Mr Tan,

“I will honestly start looking for job or go back to gym full-time. I think my time is up there unless some arrangement is made that she doesn’t step on my toes again. But I just couldn’t care less now I don’t want to come to work every day feeling unhappy because of one person.”

and

“I will have to think about my future now”

[26] Ms Patea’s evidence was that based on Mr Tan’s behaviour on Friday and the messages he sent her that evening she was sure that he had resigned and would not be coming back.

[27] Mr Tan agrees that he yelled and swore at Mrs Vickery. His evidence was that twice he said to Mrs Vickery “Marcia, you can keep your fucking job”. 2

[28] After Mr Tan walked out of the office at approximately 12.15 p.m. he remained in the staff car park sitting in his car for around 20 minutes. Mr Buck then came back from lunch and sat with Mr Tan talking in his car for a further 30 minutes. Mr Tan then drove away.

[29] Mr Tan’s normal work hours would finish at 4.30 p.m.

[30] Mr Tan did not contact Mr and Mrs Vickery later that day or over the weekend.

[31] The following Monday, 14 November 2016 Mr Tan attended for work as normal at 8.30 a.m. On Mr Tan’s own evidence Mr and Mrs Vickery were shocked and surprised to see him there.

[32] I find that Mr Vickery said to Mr Tan something like “You can’t just come back to work”. He told Mr Tan that they should discuss his resignation and finalises his entitlements. I am satisfied that Mr Tan refused to meet with either Mr or Mrs Vickery to discuss the situation and was being quite aggressive.

[33] Mr Vickery was concerned not to inflame the situation based on the previous Friday’s events. Mr and Mrs Vickery consequently were at a loss as to how to handle the situation short of physically evicting Mr Tan.

[34] They telephoned Mr McMillan for advice. He was unable to come to the Respondent’s premises until later that afternoon and they decided it was best to wait for him. Mr McMillan arrived around 4.00 p.m.

[35] Mr Vickery then asked Mr Tan to meet to finalise his resignation and his entitlements but Mr Tan refused to meet with Mr McMillan. Both Mr McMillan and Mr Vickery were trying to speak to Mr Tan but he was ignoring them and would not come into the main office saying that he, Mr Tan, had not authorised any other person to speak about him.

[36] The evidence of Mr Tan which I accept is that Mr McMillan said to Mr Tan that he had resigned and his resignation has been accepted and he should leave the building. 3 Mr Vickery’s evidence which I accept is that Mr Tan did not say he had not resigned and he did not say that he wanted to keep working with them. Mr Tan did not apologise for what occurred on the Friday.

[37] Mr Tan was speaking to someone on his mobile phone and saying that he was being harassed.

[38] Mr Vickery told Mr Tan several times that he had resigned that he should leave the premises but Mr Tan ignored him. Mr Tan eventually packed his personal belongings into his backpack and left the premises.

[39] Mr Tan agrees that he has not suggested he was forced to resign because of the conduct or a course of conduct of his employer.

Legislation

[40] Only employees who have been dismissed are able to make an application for an unfair dismissal remedy.

[41] Section 386 of the Act defines when a person has been dismissed. This section says that a person has been dismissed if their employment has been terminated on the employer’s initiative.

[42] An employee who has resigned, but was not forced to do so by their employers conduct, has not been terminated on the employer’s initiative and so has not been dismissed and cannot make an application such as this.

Submissions

[43] The Respondent submits that Mr Tan resigned and was not dismissed and so is unable to make this application.

[44] It is submitted that both Mr and Mrs Vickery reasonably understood based on Mr Tan’s words and conduct on Friday, 11 November 2016 that he had resigned. This understanding was objectively reasonable. Ms Patea also had the same understanding from the events of that afternoon.

[45] Consistent with this when Mr Tan attended for work the following Monday morning they were shocked and surprised. The delay in dealing with Mr Tan that day was a function of his refusal to meet with them to discuss his resignation and finalise his entitlements as Mr Vickery requested and then the delay in Mr McMillan being able to attend the premises to provide advice and support to Mr and Mrs Vickery who were at a loss as to how to handle Mr Tan’s presence short of physically evicting him. It is submitted their actions on the Monday in the circumstances were not inconsistent with the reasonably held understanding that he had resigned the previous Friday.

[46] To the extent that Mr Tan’s resignation can be viewed as having occurred in the heat of the moment on the Friday afternoon considerable time passed whilst he sat in his car in the car park by himself for 20 minutes and then a further 30 minutes with Mr Buck which was time enough for him to have calmed down.

[47] However Mr Tan neither before he drove away from the premises nor later that afternoon nor at any time on the weekend nor any time on the Monday told Mr and Mrs Vickery that he wished to withdraw his resignation nor did he apologise for his behaviour on the Friday.

[48] The Respondent contends the Commission should find that Mr Tan resigned and was not dismissed and so this application should be rejected.

[49] Mr Tan submits that he was dismissed by Mr Vickery on Monday, 14 November 2016 and he at no time resigned from his employment.

[50] Mr Tan acknowledges that he did say the words “You can keep you fucking job” on the Friday but this was said out of frustration during a meeting with the employer where Mrs Vickery was behaving unreasonably and the discussion was not getting anywhere. This was not meant to be a resignation.

[51] On the Monday the day Mr Tan says he was dismissed he submits he was not given any opportunity to improve his conduct before the dismissal and he was not permitted to have a support person present in the proposed meeting with the employer. Mr Tan requested a support person be present however was informed by the Respondent that they would speak to him anyway and he was dismissed.

[52] Mr Tan submits the Commission should reject the Respondent’s jurisdictional objections.

Consideration

[53] The preliminary issue to be determined in this case was whether Mr Tan did resign or not on Friday, 11 November 2016.

[54] The Courts have in the past found that where there are special circumstances it may not be reasonable to immediately accept an apparent resignation but rather that a reasonable period should first be allowed to pass to see if circumstances arise which put the employer on notice that it would be desirable for them to make further enquiry to ensure that resignation was really intended. That said where an employee unambiguously communicates their intention to resign no further enquiry is required.

[55] A Full Bench of the Australian Industrial Relations Commission in Ngo v Link Printing Pty Ltd 4 explained these principles and then applied them as follows:

“[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:

‘The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

“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...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.”

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.”’

[13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo's statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo's resignation was really intended. Mr Ngo spoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngo said this.

[14] We have considered the evidence of Link's witnesses as to their reaction to Mr Ngo saying that he resigned. Even if they did not believe Mr Ngo when he said that he resigned, the fact remains that Mr Ngo did not tell Link, until the following day that he was "not resigning".

[15] We have also considered the effect of Mr Corrigan's words (as recorded in Mr Ngo's statement) "Okay, you must give us a letter in writing, and give it to me tomorrow". It was submitted by the appellant that a contract was formed under which Link agreed to accept the withdrawal of the resignation and the resignation would only take effect if it was submitted in writing. In our view, this submission cannot be sustained. There is, we think, nothing in the evidence to support the view that the brief reference to providing a letter created the contractual relationship contended by the appellant.

[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].

[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.” (Underlining added.)

[56] The Commission’s role is to judge objectively whether indeed Mr Tan intended to resign on Friday, 11 November 2016.

[57] Mr Tan’s submissions impliedly recognise, quite rightly, that words he agrees he said on that Friday such as “You can keep your fucking job” could objectively be understood to amount to a resignation dependent upon the circumstances. 5

[58] In any event in this case I am satisfied that the multiple statements Mr Tan made to Mr and Mrs Vickery on the Friday, which included “You can keep your fucking job” and “I resign” and “No, I am going, I’ve had enough, I am out of here” unambiguously meant he had resigned at that time.

[59] I do accept that these words were said by Mr Tan during an argument with Mrs Vickery where he was agitated and angry. This I accept amounts to a “special circumstance” and so consistent with the principle laid down by the Courts previously I agree it would have been unreasonable in this case for Vital Packaging to assume Mr Tan intended to resign on the Friday and to have accepted his resignation forthwith. Consequently Vital Packaging applying this principle were required to allow a reasonable period of time to pass to see if there was some other indication that resignation was not really intended by Mr Tan.

[60] On this point I accept the submission of the Respondent that given the argument in which Mr Tan made the statements that he was resigning occurred around 12 noon on Friday and that Mr Tan had not contacted either Mr or Mrs Vickery at all prior to attending the premises at 8:30 a.m. the following Monday those facts judged objectively demonstrate Mr Tan had intended to resign on the Friday.

[61] The heat of the moment, which is Mr Tan’s explanation for what he said, in all likelihood had cooled before the end of his normal work day on the Friday at 4.30 p.m. If not it most definitely had cooled by the Saturday let alone the Sunday and certainly before 8.30 a.m. on the Monday morning. However at no point did Mr Tan take any steps to explain to Mr and Mrs Vickery that he did not intend to resign when he said what he had said the previous Friday. Whilst Mr Tan may have said those words indicating he was resigning on the Friday out of frustration, he had 2 � days to retract his statements of resignation but he never did this. The Respondent had accepted Mr Tan’s resignation before he attended the workplace on the Monday and was entitled to do so in the circumstances.

[62] Considering objectively what was said by Mr Tan on the Friday and his conduct afterwards I accept he had resigned from his employment that day. Mr Tan resigned his employment on Friday, 11 November 2016. Mr Tan was not dismissed at the initiative of his employer and so is unable to make this application.

[63] Consequently this application is dismissed and an order [PR590199] to that effect will now be issued.

COMMISSIONER

Appearances:

S. Tan on his own behalf.

G. Smith of Nexus Lawyers for the Respondent.

Hearing details:

2017.

Perth:

February 9.

 1   Transcript at PN205 to PN211.

 2   Ibid., at PN209 and Exhibit A1 at paragraph 16.

 3   Ibid., at paragraph 23.

 4   (1999) 94 IR 375 [12].

 5   Applicant’s submissions at paragraphs 4 and 5.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR590198>