Australian and International Pilots Association v Captain Michael Glynn

[2011] FWA 1223

[2011] FWA 1223

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian and International Pilots Association
v
Captain Michael Glynn
(C2011/24)

VICE PRESIDENT WATSON SYDNEY, 11 MARCH 2011

Appeal against decision [2011] FWA 121 of T Nassios at Melbourne on 10 January 2011 in matter number E2010/2700 - Fair Work (Registered Organisations) Act 2009 - Australian and International Pilots Association (AIPA) - notice of termination - resignation from elected office - withdrawal of resignation - casual vacancy - organisational rules.

Introduction

[1] This decision concerns an application under s 604 of the Fair Work Act 2009 (the Act) by the Australian and International Pilots Association (AIPA) for permission to appeal against the decision of T Nassios, the Delegate of the General Manager of Fair Work Australia (the Delegate) on 10 January 2011 in matter number E2010/2700.

[2] The decision of the Delegate concerned a request from the AIPA for Fair Work Australia (FWA) to make arrangements for the conduct of an election to fill a Casual Vacancy for the unexpired part of the term of a Member of the AIPA Committee of Management (CoM). AIPA contended in their request to FWA that this Casual Vacancy had arisen on 23 October 2010 when Captain Michael Glynn tendered his resignation as Member of the CoM to take effect from the conclusion of the 2010 AIPA AGM and that his purported withdrawal of his resignation prior to the date of the AGM had not altered the effect of the resignation.

[3] The Delegate found that he was unable to conclude, on the material before him, that Captain Glynn’s resignation had been effected leading to a Casual Vacancy on the AIPA CoM. As a result of this finding, the Delegate was not satisfied that it was necessary for AIPA to hold an election to fill Captain Glynn’s position and declined to make the necessary arrangements for such an election with the Australian Electoral Commission (AEC).

[4] The Appeal was heard on 18 February 2011. AIPA was represented by Mr. J. Nolan, of Counsel, and Mr. J. Mallios. Captain Glynn appeared on his own behalf.

Background

[5] Captain Glynn was declared elected to the AIPA CoM for the term 2010-2013 by the Australian Electoral Commission on 15 October 2010. In accordance with rule 38(t)(i) of the AIPA Rules, Captain Glynn was to assume office at the 2010 AGM on 13 December 2010.

[6] Prior to the AGM, on 23 October 2010, Captain Glynn emailed Captain Barry Jackson (AIPA President) notifying him of his resignation from the AIPA CoM, effective from the completion of the 2010 AIPA AGM. In that email, Captain Glynn stated:

“Dear Barry,

I have re-considered my availability to take up my next term on COM, and hereby serve notice that I will resign from COM effective the completion of the AGM.

I will still be available to assist AIPA as the Chair of the OH&S sub-committee and am available to assist on the other sub-committees that I am currently a part of, subject to the will of the Exec.

Regards

Mike Glynn”

[7] Later that same day, 23 October 2010, Captain Steve Anderson (AIPA Secretary) sent an email to Captain Glynn, as follows:

“Dear Mike,

As secretary of AIPA I hereby accept your resignation from the Committee of Management to take effect on the 13th December 2010.

Please appreciate that as you are now no longer going to be on the CoM commencing after the AGM, you will be unable to vote or nominate for positions on the Executive.

I thank you for your time spent on the AIPA CoM as well as your time as VP and wish you all the best.

Rgds,

Steve Anderson”

[8] The following month, on 17 November 2010, Rachel Chapman-Oliver (AIPA Project Officer) emailed Captain Glynn requesting a signed letter from him confirming his resignation for the purposes of arranging an election through FWA and the AEC for the Casual Vacancy. In that email Ms Chapman-Oliver stated:

“Hi Mike,

Fair Work Australia requires a letter from you confirming your resignation from the CoM for 2010-2013 and the effective date, so that they can make arrangements with the AEC to conduct an election for the Casual Vacancy.

Would you please forward me a copy at your earliest convenience, so that I may send it with the letter from Steve. An attachment via email is fine, provided that it contains your signature.

Thanks and regards,

Rachel”

[9] On 2 December 2010, again prior to the AGM, Captain Glynn sought to withdraw his resignation in an email sent to Captain Anderson as follows:

“Dear Steve,

Due to the approaching EBA, the industrial climate and the current under-representation of A330 pilots on the new COM, I hereby withdraw the resignation, effective after the AGM, that I previously submitted. I believe I have much to offer the new COM and feel I must honour the choice of the people who voted for me.

Regards,

Mike Glynn”

[10] That same day, 2 December 2010, Captain Anderson replied to Captain Glynn in an email stating:

“Mike,

I am happy to withdraw as requested but I will have to get a ruling from FWA as to whether or not this is acceptable. As soon as I have a ruling I will come back to you.

Regards

Steve Anderson”

[11] On 3 December, Captain Anderson emailed FWA notifying it of the dates of Captain Glynn’s elected office, resignation and purported withdrawal. Captain Anderson also noted in the email that he had accepted Captain Glynn’s resignation prior to the date of Captain Glynn’s purported withdrawal. Captain Anderson then requested that FWA confirm with him that an election for one Casual Vacancy was required.

[12] AIPA provided further information in relation to the AIPA Rules relevant to Casual Vacancies on 14 December 2010. On 15 December, FWA emailed Captain Anderson requesting further information necessary to satisfy s 189(1) of the Fair Work (Registered Organisations) Act 2009 (the RO Act), the contents of which are set out in Regulation 138 of the Fair Work (Registered Organisations) Regulations 2009. This information was provided by the AIPA on 16 December 2010. There was no further correspondence between the AIPA and FWA prior to the decision issued by the Delegate on 10 January 2011.

The Decision under Appeal

[13] On 10 January 2011, the Delegate issued decision [2011] FWAD 121 under the descriptor ‘Arrangement for conduct of election’. In the decision, the Delegate stated that on 16 December 2010 the AIPA had lodged with FWA the prescribed information in relation to an election to fill the vacant office of Member of the CoM for the unexpired part of the term.

[14] The Delegate then referred to the email exchange between the parties regarding the resignation, acceptance and purported withdrawal of Captain Glynn’s resignation, the substance of which has been quoted in full above. The Delegate also referred to a letter that he had received from Captain Glynn which confirmed the substance of the email exchange but which also went on to state that he had never provided a signed resignation to the AIPA.

[15] The Delegate concluded that:

“On the material provided I am unable to conclude that the incumbent’s notice of resignation from office was effected.

Accordingly, on the material before me I am not satisfied that an election for the abovenamed office is required to be held under the rules of the organisation and I decline to make arrangements for the conduct of the election by the Australian Electoral Commission”.

Permission to Appeal

[16] Section 604(1)(b) of the Act requires that a person who is aggrieved by a decision made by the General Manager (including a delegate of the General Manager, as in this case) under the RO Act may appeal the decision with the permission of FWA.

[17] Section 604(2) provides that FWA must grant permission if it is satisfied that it is in the public interest to do so although, in a matter of this type, this is not the sole ground for granting permission to appeal.

[18] AIPA submits that it is in the public interest to grant permission to appeal for the following reasons:

1. the issue has the potential to affect rights of all AIPA members who might be eligible to stand for the vacated office; and

2. the decision is erroneous at law and will have ongoing effects for the term of office of the AIPA CoM; and

3. the impact of the decision – if not corrected – also raises the potential for further litigation in the nature of an election inquiry at the behest of any AIPA member who is dissatisfied with the Delegate’s decision; and

4. the decision has significance generally for the approach taken to elections and organisations’ rules where resignations from office occur.

[19] I am satisfied that the appeal raises important questions in the public interest and I grant permission to appeal.

Grounds of appeal

[20] AIPA appeals the decision of the Delegate on the following grounds:

1. The Delegate erred in finding that he was unable to conclude that the resignation had been effected from the material before him; and

2. The Delegate failed to apply accepted legal principles to Captain Glynn’s resignation and its consequences at law; and

3. The Delegate failed to have regard to the requirements of the Rules of AIPA regarding resignations from an office; and

4. The Delegate failed to have regard to the provisions of the Fair Work (Registered Organisations) Act 2009 that have relevance to the creation of casual vacancies in the office of a registered organisation; and

5. The Delegate failed to afford procedural fairness to the Appellant, which he was obliged to provide; and

6. The Delegate failed to provide proper or adequate reasons for his decision, which he was obliged to provide.

The validity of the Appeal

[21] Captain Glynn challenges the validity of the appeal on the basis that the Notice of Appeal was never approved by the AIPA CoM. In response, the AIPA submits that the President authorised the appeal and the AIPA Rules 23(b)(v) and 23(d) afford the President the necessary discretionary powers to commence and conduct proceedings on behalf of the AIPA without prior approval of the AIPA CoM.

[22] The rules of the AIPA express the powers of the various office holders and governing bodies in general terms. The CoM has the power to do all things necessary for achieving the objects of the organisation including the power to delegate to others. The President has responsibility for ensuring that policies and objectives are pursued and the rules are observed and performed. The President is specifically empowered to rule on any dispute over an interpretation of the rules and in the cases where the rules are silent, to direct the course to be taken.

[23] In my view the rules need to be interpreted in a practical manner. Unless an action taken by an officeholder is clearly taken without the authority of the organisation under its rules, the Tribunal should be slow to find that an action ostensibly made by the organisation is invalid. The institution of legal proceedings over the application of rules is a matter that falls generally within the President’s authority. While that power is subject to any guidance or direction from the CoM, it has not directed that the appeal in this matter not be pursued. I find that the appeal is valid and turn to consider the merits of the appeal.

Was there an effective resignation?

[24] Captain Glynn submits that his email of 23 October 2010, reproduced in full above at [6], amounts to a conditional resignation with the condition precedent being the conclusion of the 2010 AIPA AGM. Captain Glynn submits that as he withdrew his resignation before this event occurred, his resignation never came into effect. He further submits that his resignation was of no effect as it was unsigned.

[25] AIPA submits that Captain Glynn’s email of 23 October 2010 amounts to an unconditional resignation from his elected position as Member of the AIPA CoM and that the date of effect constitutes a notice period and not a condition precedent.

[26] The relevant legal principle is that a resignation from employment or office may be effected by the communication of proper notice. The length and content of the notice may be prescribed by the contract itself, by statute or where no express provision is made, by the provision of an implied term of ‘reasonable notice’. Resignation is a unilateral act. It is not a legal requirement that a resignation be accepted by the other party despite this being common practice. The rationale for the provision of a notice period is explained in the well known decision of Birrell v Australian National Airlines Commission (1984) 9 IR 101 [at 110]:

"The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee”

[27] The AIPA Rules are silent on the giving of notice by elected Members of the AIPA CoM when resigning from office. The RO Act is also silent on this point. An implied provision of reasonable notice therefore applies. Further, Captain Glynn states in his 23 October email:

“I ... hereby serve notice that I will resign”.

[28] In my view, the proper construction of Captain Glynn’s email of 23 October 2010 is that it amounts to a notice of termination. His advice that his resignation would take effect from the conclusion of the 2010 AIPA AGM constitutes a notice period and was not a condition precedent on which the effect of the resignation was dependent.

[29] I do not consider that the resignation needed to be personally signed. The email was sent by him on his own behalf with his name at the end of the email. In my view it was a valid resignation. For the reasons above, I find that Captain Glynn’s resignation was effected when he emailed his resignation to Captain Anderson on 23 October 2010.

Was the notice withdrawn?

[30] The relevant legal principles in relation to withdrawal of notice from employment or office of an organisation are well established. Once a notice to terminate has been communicated, it cannot be withdrawn except by mutual consent of the parties. In Birrell v Australian National Airlines Commission (1984) 9 IR 101 Gray J said [at 110]:

“It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment to employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties."

[31] The general principle was recently restated by the NSW Court of Appeal in New South Wales v Paige [2002] NSWCA 235 [at 277]:

“Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible”.

[32] As stated in the quote above, the principle is not confined to the context of paid employment and is applicable to positions of office in organisations 1.

[33] Only limited exceptions to the above principles apply. Parties may withdraw their notice without consent where notice was given ‘involuntarily’ 2 or ‘in the heat of the moment’3. Neither of these exceptions applies in this case. Therefore Captain Glynn was not able to unilaterally withdraw his resignation unless the withdrawal was accepted by the organisation. The question becomes whether this is what occurred in this case.

[34] Captain Glynn submits that Captain Steve Anderson accepted his withdrawal on 2 December 2010 on the condition that FWA approve that such a withdrawal was acceptable. Captain Glynn asserts that the decision of the Delegate fulfils this condition.

[35] The AIPA submits that Captain Anderson’s email merely indicated that he would make enquiries of FWA, it did not agree to permit the withdrawal and given the consequences of a resignation, nor could he do so.

[36] In order for there to be a valid withdrawal of a resignation, there must be a capacity of the organisation to agree to allow withdrawal of the resignation and there must be valid consent by an officer or body of the organisation authorised to give such consent. In my view neither requirement is satisfied in this case.

[37] The position of an office holder of an organisation is distinguishable from the contractual principles which apply in the employment context. Parties to a contract of employment are governed by the principles of contract law and the essential ingredients of a contract. They are free to enter and withdraw from contracts unless they contravene a law in doing so. The consequences of an acceptance of a request to withdraw a resignation from employment are confined to the parties to that employment contract and the contractual relationship revived or recreated as a result of such consent. A resignation from an office of an organisation, on the other hand, has consequences under the rules of the organisation. It triggers a vacancy of that office, imposes obligations under the rules to fill that vacancy and creates rights of other members to stand for election and vote for a candidate in that election. In my view it is not open to any officer of the organisation to circumvent that process by accepting a withdrawal of a resignation.

[38] In any event, the circumstances do not establish consent to the withdrawal. Captain Anderson communicated a response to Captain Glynn on 2 December 2011 which in my view was equivocal and unclear in its meaning. It did not expressly communicate consent to the withdrawal but is properly construed as agreeing to look further into the matter and obtain advice. The subsequent written communications from Captain Anderson to FWA on 3 December sought confirmation that an election was required. It indicated that the resignation had been received, that it was accepted and that Captain Glynn had sought to withdraw the resignation. In no way was it indicated in that or in any future communication that Captain Anderson or AIPA consented to the withdrawal. In these circumstances it would be misconstruing the communications to interpret them as conveying consent.

[39] The assertion that the Delegate’s decision satisfied the condition in Captain Anderson’s email of 2 December 2011 fails to take into account the actual communications between Captain Anderson and FWA. The decision of the Delegate was not responsive to the communication of consent of AIPA and nor could it have been. It related to the communications from Captain Glynn and the conclusion that the resignation was not effected. I find that AIPA did not consent to the request to withdraw the resignation on a conditional basis or otherwise.

[40] It follows that the decision of the Delegate was in error and the appeal must be upheld.

Other grounds of appeal

[41] In the light of the above conclusions it is unnecessary that I consider the further grounds of appeal going to the provision of an opportunity for the organisation to make submissions to the Delegate and the adequacy of the Delegate’s reasons.

Conclusions

[42] The effect of Captain Glynn’s resignation and purported withdrawal has important consequences for the AIPA and its members, namely whether a Casual Vacancy was created and whether it must be filled in accordance with Rule 38(u)(i) of the AIPA Rules and s 146 of the RO Act.

[43] For the reasons above, I find that there was an error of law in the original decision in failing to find that the resignation of Captain Glynn created a vacancy in the position to which he was elected and making arrangements for an election of the vacant position.

[44] I allow the appeal and quash the decision of the Delegate. I will issue an order that FWA make the necessary arrangements for the conduct of the election to fill the Casual Vacancy to be carried out in accordance with the Rules of the AIPA and the RO Act.

VICE PRESIDENT WATSON

Appearances:

Mr. J. Nolan, of counsel, for the AIPA.

Captain Glynn, on his own behalf.

Hearing details:

2011

SYDNEY

18 FEBRUARY.

 1   Saddington v Building Workers Industrial Union of Australia and Anor (1993) 49 IR 323; De Costa v Ecob and Ors (1992) 45 IR 19.

 2   Achal v Electrolux Pty Ltd (1993) 50 IR 236.

 3   NGO v Link Printing Pty Ltd (1999) 94 IR 375.

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