Avery v Air Design Pty Limited
[1996] IRCA 115
•11 March 1996
DECISION NO: 115/96
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No QI 95/1411
BETWEEN:
Shane AVERY
Applicant
AND:
AIR DESIGN PTY LIMITED
Respondent
COURT: PATCH JR
PLACE: BRISBANE
DATE: 11 MARCH 1996
REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
This is an application under section 170EA of the Industrial Relations Act 1988 (“the Act”). The applicant asserts that his employment was unlawfully terminated by the respondent and seeks orders for reinstatement, or in the alternative, compensation.
BACKGROUND FACTS
The respondent is a company which manufactures fans as its principal product. Apparently, these are not merely small domestic fans but can be very large products indeed. The applicant was first employed on a temporary basis in March 1994. This became a permanent job on 3 May 1995. On 13 September 1994 the applicant was injured at work lifting a fan assembly. He injured his back. He returned to work on 30 September 1994.
On 23 February 1995 he reinjured his back, again at work. He was off work from 23 February 1995 until 2 June 1995.
By way of a letter dated 12 April 1995, exhibit 2, the respondent confirmed that the applicant had a position available for him at work and that he was able to return to work on a “light duties basis”. The letter went on to say:
The work details would follow the path of fork-lift driving, light assemble work and picking orders from racks.
No lifting over 10 kg would be required and assistance would be available at all times.
The letter was signed by Mr Rick Harrison, the Production Manager, but with the authority of the directors of the company.
When the applicant returned to work on 2 June 1995, he provided the respondent with a medical certificate from Dr Douglas Tong dated 30 May 1995. That medical certificate had the heading “Workers Compensation Act 1990 Medical Certificate” and had provision in it for a statement that the applicant's fitness for work was for modified or alternative duties for a certain period of time, and had space in it whereby the doctor could specify any work restrictions or limitations.
The doctor certified that the applicant was “fit to return to work from 31/5/95”. There were no restrictions or limitations placed upon that simple statement of “fitness for work”. Nonetheless, and quite reasonably in view of his history, the respondent put the applicant on light duties. This was quite obviously something which the applicant and Mr Harrison agreed would be appropriate in his case. A position was especially created for him. As part of that job, he was given a bench at the front of the respondent’s premises where he did the paperwork associated with that position.
There was some dispute as to the amount of paperwork which the applicant was required to do, but I accept that on any version of the facts it was a substantial portion of his duties. In addition to paperwork, the applicant performed other light duties in the period from 2 June 1995 until and including 19 June 1995. These duties include fork-lift driving and operating, light assembly work, and picking orders from the racks.
The applicant gave evidence that on 19 June 1995 he arrived at work and his bench had been removed. Mr Rick Harrison, a witness for the respondent and the former Production Manager of the respondent - the Production Manager at the time that the applicant ceased work for the respondent - said that the bench was not removed until after the applicant had resigned. However, in cross-examination it was not put to the applicant that his evidence that the work bench was gone when he arrived at work on the morning of 19 June was incorrect. I therefore did not permit counsel for the respondent to address me to the contrary to assert that I should accept Mr Harrison’s evidence about that particular matter. I therefore, despite some doubts as to the applicant’s credit as a witness, accept that when he arrived at work on the morning of 19 June the work bench was not there. See Browne v Dunn (1894) 6 The Reports 67.
QUESTIONS OF CREDIT
In my opinion, the applicant had some tendency to “gild the lily” to support his claim. Exhibit 4 is a document written by Mr Harrison just after the crucial conversation with the applicant, (which conversation I will cover later in these reasons for judgment), which the applicant signed. In his statement, which was tendered in evidence and which the applicant said in evidence was, to the best of his knowledge, true and correct (exhibit 1), the applicant said that he had not read exhibit 4 at the time that he signed it. Exhibit 4 is, on the face of it, a summary of the conversation between the applicant and Mr Harrison during which the applicant said various things and a confirmation that the applicant had resigned.
In cross-examination, and contrary to his earlier testimony, the applicant said that he was not sure at the time he signed his statement, exhibit 1, that he had in fact not read exhibit 4 before signing it. It was put to him that, therefore, he had deliberately asserted something in his statement which he knew to be false, and he accepted that proposition. However, in re-examination he attempted to retract the evidence that he had given in cross-examination. That to-ing and fro-ing in his evidence on a matter of importance to the case, did his credit as a witness no good at all.
Therefore, except in respect of the matter of his bench, I accept Mr Harrison’s evidence wherever his evidence conflicts with that of the applicant, as there are no matters which reflect adversely on Mr Harrison’s credit as a witness.
WAS THE APPLICANT'S EMPLOYMENT TERMINATED AT THE
INITIATIVE OF THE EMPLOYER?
The word, “termination”, when used in the Act, is to be given the meaning given to it in the Convention Concerning Termination of Employment at the Initiative of the Employer, and the Recommendation Concerning Termination of Employment at the Initiative of the Employer, which are schedules 10 and 11 of the Act respectively.
The word, “termination” and the phrase, “termination of employment” are interchangeable in the Convention and Recommendation. And in each case they are given the meaning termination of employment at the initiative of the employer. If there was no termination of employment at the initiative of the employer, then the application will be dismissed.
The applicant said that he, “resigned” because he had no choice. He said he had no choice in practical effect, because he was given the choice of returning to the duties which he had been performing before he injured his back, (and therefore being exposed to the danger of further injury), or resigning. He asserts, therefore, that, as a practical matter, he was forced to resign.
In the case of Mohazab v Dick Smith Electronics Proprietary Limited, a decision of the Full Bench of this court, unreported, 28 November 1995, court file number NI2571 of 1995, the court said this, at page 13:
"When an employee has no effective or real choice but to resign, it can hardly be said that the termination of her or his employment is truly at the employee’s initiative.”
The court also said at page 15:
“.... industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer, if the dismissal is one where the employee did not resign willingly, and, in effect, was forced to do so by the conduct of the employer.”
The respondent’s case is that the applicant resigned voluntarily, and that further that in any case, there is no termination at the initiative of the employer.
In my opinion, the applicant did resign voluntarily. I do not accept, on the balance of probabilities, that he believed that he would immediately have to return to all the duties (involving heavy work and therefore danger of injury to his back) that he had performed before he injured his back.
I do not accept that for three reasons: firstly, the evidence of Wayne Thompson. Mr Thompson was called as a witness for the applicant, and impressed me as a young man who was doing his best to tell the truth. He gave evidence that there was a discussion between himself and Mr Harrison on the morning of
19 June, in which Mr Harrison said that the applicant was going to go back to “normal duties”. When Mr Thompson was asked by me to say what it was that
Mr Harrison had actually said in that conversation, Mr Thompson was unable to be specific.
It seems to me that Mr Thompson’s evidence that Mr Harrison said that the applicant was to “go back to” normal duties was an interpretation by
Mr Thompson of what Mr Harrison had said. I have no doubt that Mr Harrison said to Mr Thompson that the applicant was to perform “normal duties”, but I do not accept that Mr Harrison said that the applicant was to go back to normal duties in the sense that the applicant was to return immediately to performing all of the duties that he had performed before he injured his back.
Importantly, Mr Thompson also gave evidence, which I accept, that
Mr Harrison had said to Mr Thompson that if the applicant felt that he was unable to do work because it was too demanding for him physically, or beyond him, he, the applicant, should speak to Mr Thompson before the applicant performed that duty. I also accept Mr Thompson’s evidence that he repeated that to the applicant.
I accept Mr Thompson’s evidence that he told the applicant that the applicant was no longer going to be in the specially created position, which was essentially despatch and receiving, but that the applicant was to return to work on the factory floor, where he, the applicant, had been before. But that was with the important caveat that the applicant was to tell Mr Thompson if he felt that he could not do something, or it was beyond him.
The second reason why I do not accept that the applicant genuinely believed that he would immediately have to return to all of the duties that he had had before he injured his back, was because Mr Harrison gave evidence that in the crucial conversation on 19 June 1995, he, Mr Harrison, had told the applicant that he would be performing light duties for a reasonable period of time.
I accept that that was a reference to the future, not a reference to what had occurred in the past. As I have said before, where the applicant and
Mr Harrison’s evidence differs, I accept what Mr Harrison said.
The third reason why I do not believe the applicant when he says that he believed that he would immediately have to return to all of the duties that he performed before he injured his back, is because he said in his evidence that the first page of exhibit 4 was an accurate summary of the conversation that occurred between himself and Mr Harrison on 19 June 1995.
I will read all of exhibit 4. It has the date 19 June 1995 and then
“re: Shane Avery, 9.35 am.”
“Shane has complained about his treatment whilst under the employ of Air Design.
He has mentioned such things as tool allocation and that he was not successful in obtaining the position of data entry clerk.
He has said that he has done all he can, including returning from workers comp early to assist in his endeavours.
I have explained to Shane that he has complete clearance and also that Air Design stand by their commitment to light duties for a reasonable period of time.”
Page 2 of the document is as follows:
“Shane has said that he doesn't give a stuff and couldn't care about his job. It doesn't have a future.
I have given Shane the choice of either returning to his given duties or resigning.
He has tendered his resignation and this has been accepted. It has been signed by the applicant and by Mr Harrison.”
The document was signed by both the applicant and Mr Harrison.
Although Mr Harrison did tell the applicant that he was to return to his “normal duties” or resign, this was in the context of the applicant angrily complaining to him about his, the applicant’s, treatment by the respondent. I accept
Mr Harrison’s version of that conversation. In particular, I accept that he told the applicant, as recorded in exhibit 4, that,
“Air Design stand by their commitment to light duties for a reasonable period of time.”
In paragraph 16 of his statement he set out what the applicant had complained about,
“(a) that in the last allocation of tools, he didn’t get any (there had been a recent requisition for tools. Tool allocation was up to Gordon Avery, Gordon was on holidays and the tools were kept in a tool cupboard until Gordon returned);
(b)that he was rejected as an applicant for Order Entry Clerk;
(c)that he had no future at Air Design (he had stated this to me on other occasions);
(d) he said that he had done everything he possibly could, including coming back early from workers’ compensation (I explained to him that he had a full medical clearance for a return to work and that we were maintaining light duties for a reasonable period of time);
(e) he used colourful language, telling me what he thought of the job. I can recall him using the phrase “fucking shit job”. I also recall him being critical of the Directors of Air Design, Derick Gattegno and Neil Bone;
(f) his attitude was offensive and belligerent. I told him he had two choices, he could return to work and carry out the assigned duties or I could accept his resignation. He told me that I could “stick my fucking job” which I took to be an indication that he was resigning.”
Mr Harrison’s statement continued after that list of complaints by the applicant as follows:
“I then briefly recorded the contents of the discussion on a file note. I asked him if he thought it was a fair and honest account of the discussion and, if so, would he sign. He signed the note and left.”
I accept that that occurred. I accept therefore that exhibit 4 is a “fair and honest account of the discussion”.
In my opinion, the applicant resigned his employment as an impetuous and angry act. That resignation occurred in the conversation with Mr Harrison, after the applicant had complained about his treatment, when the applicant said to Mr Harrison, that he could “stick my fucking job”. That resignation was confirmed shortly afterwards when the applicant signed exhibit 4. A resignation made in anger and as an impetuous act may, nonetheless, be intentional and voluntary. In this case, the employer, in effect, gave the applicant the chance to reconsider when he was asked to sign exhibit 4.
I should add for the sake of completeness that even if I were of the opinion, which I am not, that the applicant did believe that he was about to be returned to normal duties involving heavy work and danger of injury, and that he resigned because of that belief, I would still dismiss the application. This is because that belief would not be based on anything that Mr Harrison had said or done. The removal of the bench did not necessarily mean that the applicant would be doing heavy duties. As the respondent's counsel pointed out, it is up to the employer to determine what light duties the applicant was to perform. Provided those duties were, in fact, genuinely light duties and generally within the applicant's job description or otherwise acceptable to him, then it is not for the Court to interfere.
On this scenario, the applicant would have, incorrectly, interpreted
Mr Harrison’s use of the phrase “normal duties” as meaning “pre-injury duties” but I am satisfied on any version of the facts that Mr Harrison did not use it with that meaning.
In Mohazab v Dick Smith Electronics Proprietary Limited (cited above) the Court said this, on page 11, when considering the meaning of the phrase "initiative of the employer":
“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.”
It went on to say on page 12:
“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 particular passage of the judgment was approved by a differently constituted Full Bench in the case of Gunnedah Shire Council v Raymond Ernest Grout, unreported, 19 December 1995, matters numbers NI 1903 of 1995, NI 950 of 1994 and NI 1461 of 1995, at page 24.
In APESMA v David Graphics Proprietary Limited, Industrial Relations Court of Australia, NI 94/0174, 12 July 1995, as yet unreported, Wilcox CJ said at page 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.”
Here, in the alternative scenario that I have just set out, and that I am now considering, the critical action was that the applicant resigned because of a mistaken interpretation of the significance of the removal of the bench and of something that Mr Harrison had said (“normal duties”). It could not on that scenario be said, at the most basic level, that there was a termination of employment at the initiative of the employer.
But, as I said, that is an alternative scenario, one that I add merely for the sake of completeness. I do not accept that the applicant believed that he would immediately have to return to all of the duties involving heavy work, and therefore danger of further injury to his back, that he had had before the first injury to his back in 1994. As I do not accept that, it follows that I do not accept that the applicant had been given the choice that he said he had been given. Therefore it follows that the applicant was not forced into resigning because of being given an unacceptable alternative by his employer.
It follows that there was no termination of employment at the initiative of the employer and the application is therefore dismissed.
I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch.
Associate:
Date:
Appearances
Counsel for the Applicant: Miss D Skennar
Counsel for the Respondent: Mr G Martin
CATCHWORDS
INDUSTRIAL LAW - UNLAWFUL TERMINATION - RESIGNATION or CONSTRUCTIVE DISMISSAL - A RESIGNATION made in anger and as an impetuous act may, nonetheless, be intentional and voluntary
Industrial Relations Act 1988 s 170EA, Schedule 10, Schedule 11
Browne v Dunn (1894) 6 The Reports 67
Mohazab v Dick Smith Electronics Propietary Limited (unreported 28/11/95)
NI 2571/95
Gunnedah Shire Council v Raymond Ernest Grout (unreported 19/12/95)
NI 1903/95, NI 950/94, NI 1461/95
APESMA v David Graphics Propietary Limited IRCA (unreported 12/7/95)
NI 94/0174
Shane AVERY v AIR DESIGN PTY LIMITED
No. QI 95/1411
COURT: PATCH JR
PLACE: BRISBANE
DATE: 11 MARCH 1996
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
No QI 95/1411
BETWEEN:
Shane AVERY
Applicant
AND:
AIR DESIGN PTY LIMITED
Respondent
COURT: PATCH JR
PLACE: BRISBANE
DATE: 11 MARCH 1996
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
0
0
0