Andrew James Shannon v Map Plumbing Services Pty Limited

[1995] IRCA 443

CATCHWORDS

Industrial Relations Act 1988 s 170EA

No. NI 1521 0f 1995

Andrew James Shannon v MAP Plumbing Services Pty Limited

Tomlinson JR
Sydney
7 September 1995

Industrial Relations Court
of Australia
New South Wales District Registry  NI 95/1521

Between:                 Andrew James SHANNON
  Applicant

AND:  MAP Plumbing Services Pty Limited
  Respondent

Place:  Sydney
Date:  7 September 1995
Before:  Tomlinson JR

Orders

1. That the application of Andrew James Shannon be dismissed.

NOTE:Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

Industrial Relations Court
of Australia
New South Wales District Registry  NI 95/1521

Between:                 Andrew James SHANNON
  Applicant

AND:  MAP Plumbing Pty Limited
  Respondent

Place:  Sydney
Date:  7 September 1995
Before:  Tomlinson JR

Reasons for decision

This matter was heard on Monday 28 August 1995.  Mr CV Millard represented the applicant and Mr A Price represented the respondent.  By application filed 10 March 1995 the applicant advised he was not seeking compensation and that he had commenced work on 31 June 1993 and that he had ceased work on the 6 March 1995 and that he was employed as a draftsman at Matraville by the respondent.

In his evidence the applicant told the court prior to commencing work with the respondent he had been employed by Nisbet and Durney for some 18 months.  Exhibit 1 was a document dated 30 July 1993 on the respondent’s letterhead.  It was a contract of employment noting the salary to be $36,000.00 per annum and $3,000.00 per annum for car expenses.  The applicant had told the court his salary had recently been increased to $40,000.00 a year.  His duties included all workshop co-ordination of scale drawings showing all services to a high level.  The applicant frequently worked 55 hours a week and stated that there had been no adverse comments as to the quality of his work.  Further, the applicant stated that the managing director of the respondent, Roger Miley had stated prior to Christmas 1994 that the applicant was many times better at his work than the previous draftsman.

The applicant stated in October 1994 he was re-approached to join Nisbet and Durney at an increased salary.  He accepted the position and stated he gave 5 weeks notice to the respondent.  He worked 4 of those weeks and stated that shortly thereafter Roger Miley approached him with an offer stating he wished to set the applicant up in his own business, a design drafting business called Hydraulics to be situated in East Sydney.  It seems Mr Miley was to have a 50% equity in this new company and all the design work of the respondent, MAP Plumbing was to be performed by the Hydraulics company.  The applicant stated Roger Miley told him not to discuss the new venture with anyone in the office and the applicant stated that he discussed the proposed venture with his father and it was agreed it was an opportunity too good to miss.  The applicant then spoke to Mr David Creasy and Roger Miley indicated that having David Creasy on board was a good idea.  The applicant stated there were three meetings between himself, Mr Creasy and David Miley but things were never clearly resolved.  The prices submitted by the applicant and David Creasy to Roger Miley were rejected always as being too expensive.  The pair were told to re-work the figures.

In relation to the termination the applicant stated on 6 March 1995 he was called into the office of Roger Miley and bluntly told

“I’m not going to beat around the bush.  I want your resignation.”

The applicant stated he felt shocked upon hearing this and further stated that Mr Miley advised that the applicant had him over a barrel as the prices he intended to charge for the draftsman design work to be provided by the new company was too high.

The applicant advised the court that in discussing the matter subsequently with fellow employees he stated that he had resigned.  His reasons for this was that he wished to conserve a good reputation within the industry.  The applicant did state however that he thought he may had have indicated to Mr John Whitelaw that he may have been instructed to resign.

The applicant stated that since termination he has been at a loose end and that he has set up a company known as Xrea Pty Ltd which was incorporated on 10 March 1995 and that he and another person were working for the company performing design draftsman work.  Hydraulics Pty Limited has not got off the ground.  In relation to the former offer from Messrs Nisbet and Durney the applicant stated he discussed the offer of Roger Miley with that firm and it was agreed that the offer made by Miley was too good to miss and it seemed to the court that the offer made by Nisbet and Durney was no longer there.

In cross examination the applicant agreed his salary had been raised to $40,000.00 on 14 June 1995.  The applicant was shown his original letter relating to his employment conditions with amended hand written alterations showing that as from the week ending 14 June 1994 his salary was to be increased to $40,000.00.  In relation to evidence regarding this document I found the applicant prevaricated and accordingly was forced to place little credibility on some of his evidence.  In cross examination it was put to the applicant that 6 March 1995 was not the first time he had tendered his resignation, and that in fact he had done this on more than one occasion preciously.  It was put to the applicant that Nisbet and Durney specifically suggested the applicant come and work for them as it was possible they would receive the tender for the project known as the Bankstown Hospital project and that when this project did not proceed the applicant was no longer required.  The applicant agreed that on 6 March 1995 the workload of the respondent was very busy and that the applicant was the principle hydraulic designer in the office.  Further, there was so much work that some was sub contracted to outsiders.

In cross examination the court learnt that the applicant had spoken with a fellow employee, Mr John Haran concerning his setting up business on his own account and that his father was counselling him as to how this could be achieved.

In cross examination the applicant denied that on 6 March 1995 as a result of a discussion with Roger Miley concerning in an apparent deterioration in attitude in his work, the applicant stated:

“I’ve had enough - I am resigning - I am going to start a new business.”

The applicant denied that some four weeks prior to 6 March 1995 Roger Miley had advised him that the company Hydraulics could not be considered a viable concern.

In cross examination it was put to the applicant that the following day, Tuesday 7 March 1995 at 10:00 a.m. he had a discussion with Mr Jason Brown, a fellow employee at the respondents.  The answer of the applicant to this question was:

“I may have.”

The applicant agreed that he told Jason Brown that he had in fact left the employment and that the circumstances surrounding his leaving involved a long story that had been building up for some time.  There was no mention of the applicant having been sacked.  The applicant stated he provided this story to Jason Brown as he was concerned about his reputation.  The court learned that Mr Jason Brown was 23 years of age and attended a technical college and that the applicant was concerned of his reputation among the contemporaries of Mr Brown.  Bearing in mind that the applicant is nearly 30 years of age and has been a professional draftsman for some considerable time, I found I placed little weight on this evidence provided by the applicant.

However, the applicant did say that the reputation that he was concerned with involved the dealings with people he had been working with since termination in that his company now does work for other organisations.

After the termination of the applicant the respondent employed Gary Sparkes to perform the drafting design work for the respondent and it appears the applicant happily showed Messrs Sparkes and Co the computer systems and discussed the current work in progress.

When the applicant left the employ of the respondent he was given a separation certificate, marked as Exhibit A in these proceedings.  That document indicated that the employee ceased work voluntarily.  The applicant told the court that he discussed the position with his father and a legal adviser of the family and when he attended Social Security to receive unemployment benefits, he produced copies of documentation relating to proceedings in the Industrial Relations Court which speeded up his receiving of benefits.  Accordingly the applicant never felt the need to correct the separation certificate to reveal the true position.  I have to say I place little weight on the evidence of the applicant in relation to the separation certificate and can only conclude that it is more than likely that he planned to leave the employ of the respondent and set up business on his own account which he has in fact done.  It is noted that the applicant does not seek re-instatement, however that of itself is not proof enough of the veracity of the applicant’s story, but must be looked at contextually in light of surrounding circumstances.

On behalf of the applicant the court heard evidence from Mr Michael Wales who until 28 February 1995 had been employed by the respondent.  Mr Wales stated that in his opinion the applicant was a good employee and that Roger Miley had said to the witness towards the end of 1994 that it was of importance to retain the services of the applicant, when it was known that the applicant was considering leaving.

As Mr Wales was not involved with termination proceedings first hand, I am unable to put his evidence to much use.

On behalf of the applicant the court heard evidence from David William Creasey a hydraulics consultant who stated that Mr Miley rang him and stated that he had a business proposition regarding a company Hydraulics which was to do the design drafting work for the respondent company.  The applicant was to be involved and the witness told the court that various business plans and price structures were submitted to the respondent and that the respondent indicated that the prices so submitted were too high.  The witness stated that he was never 100% confident that the project would succeed and that he was aware Mr Miley was generally checking out the market with regard to pricings of design draftsman work.

Similarly, as the witness was not involved with the actual termination of the applicant I find I am unable to put the evidence provided by this witness to much use.

On behalf of the respondent the court heard from John Martin Haran, the general manager of the respondent.  Mr Haran, found to be an impressive witness who stated he recalled two previous occasions when the applicant tendered his resignation.  One was in October 1994 and one earlier in the same year when the applicant was given an increase in money.

The witness stated categorically that in relation to the October 1994 resignation the applicant was offered the job by Nesbit and Durney to look after the Bankstown Hospital job further, the witness told the court that approximately six weeks before the applicant left the employer the respondent he had stated to him that Roger Miley had not accepted the offer that had been put to him.  The witness stated he felt he had a good relationship with the applicant but towards the end of the time of employment noted a deterioration in attitude.  The applicant seemed despondent and as there was a considerable workload in the office the witness felt it important that the applicant be cheered up.

The witness was aware that on 6 March 1995 Roger Miley was to have a word with the applicant to find out what could be done to help him.  Shortly after that interview took place, from his car phone, Mr Miley called the witness and stated that the applicant had resigned and that this resignation had left the company in a bit of a spot.  The witness confirmed that the company at that time could not afford to lose a designer and that he had discussed, that is with the applicant, very shortly after the termination and that he noted the demeanour of the applicant was cheerful and relaxed.

I found Mr Haran to be a reliable and creditable witness whose knowledge of the industry in which he worked could not be dismissed lightly.

On behalf of the respondent the court heard from Mr Roger Miley, the managing director of the respondent.  Mr Miley told the court on several occasions the applicant tendered his resignation and most of the time this was due to pressure of work.

The witness told the court that the applicant came to him and discussed his workload and that it was the applicant who put forward the solution of Hydraulics and the involvement of David Creasey.  The witness agreed that he suggested various costings be submitted to him and stated that early in February he told David Creasey he was not interested in the venture and accordingly was of the view it would go no further.

The witness told the court that on 6 March 1995 John Haran requested that he have a pep talk to the applicant.  This he began to do and the applicant said words to the effect:

“This is too much - I want to resign.”

The witness stated that the company needed stability and accordingly he decided to accept the applicants resignation, as although his work performance was good it was not in the company’s best long term interest to have an employee who would consider resigning when pressure arose.

The witness confirmed he went to see John Haran but that the applicant was there discussing matters with him so he left the premises in his car and telephoned Mr Haran from the car and advised Mr Haran of the resignation.

On behalf of the respondent the court heard evidence from Mr Jason Brown who confirmed that the applicant had told him he left the company and that things had been building up to this for some time.  Further, that when the discussion took place in early March 1995, the applicant appeared relaxed and calm.

On behalf of the respondent the court heard from Mr John Whitelaw who stated he was the Plumbing Supervisor.  He recalled that on 6 March 1995 he was sitting in his office and the applicant visited him and stated that he had resigned.  It was further confirmed that the applicant seemed relaxed and that he at no stage said that he had been forced to resign.

Conclusion

Having considered all the evidence provided to the court in relation to the events of this termination for the reasons outlined above I dismiss the application of Andrew Shannon and find that he voluntarily resigned his position from the respondent.

The supporting evidence of the respondent’s witnesses confirm this conclusion and it has to be borne in mind that prior to his leaving his employed situation the applicant had stated that he wished to set up business on his own account, which he has now in fact done.

I make no order as to costs.

I certify that this and the preceding 6 pages are a true and accurate record of the Revised Reasons for Decision delivered by Judicial Registrar Tomlinson in these proceedings.

Associate:
Date:  7 September 1995
Appearances

Counsel for the applicant:      Mr CV Millard
Instructed by:  Diamond Peisah and Co

Solicitor for the Respondent:  Anthony Price
Instructed by:  Price and Company