B Kelly v Johnsons Truck and Coach Service Pty. Ltd. T/As Johnsons Truck and Coach Service

[2014] FWC 6460

[2014] FWC 6460

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

B Kelly
v
Johnsons Truck and Coach Service Pty. Ltd. T/As Johnsons Truck and Coach Service
(U2014/7648)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 23 SEPTEMBER 2014

Application for relief from unfair dismissal – application dismissed.

[1] On 29 May 2014, Mr B Kelly (the Applicant) applied, pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the alleged termination of his employment by Johnsons Truck and Coach Service Pty. Ltd. (the Respondent).

[2] The Applicant commenced his employment as a welder with the Respondent on 5 November 2012 as a casual employee. On 11 April 2013, he commenced full-time ongoing employment. The Applicant last worked for the Respondent on 7 May 2014. An issue for determination arising out of the Applicant’s application is whether the Respondent terminated his employment.

Issues for determination

[3] The Applicant was a person protected from unfair dismissal under s.382 of the Act. He completed a period of employment with the Respondent of at least the minimum employment period under s.383 of the Act and was covered by a modern award—the Vehicle Manufacturing, Repair, Services and Retail Award 2010. 1

[4] Section 385 of the Act provides that a person has been “unfairly dismissed” if the Fair Work Commission is satisfied that:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[5] The Respondent employed 25 employees at the time of the alleged dismissal of the Applicant. 2 The Small Business Fair Dismissal Code does not apply.

[6] It is not contended that the Applicant’s employment ceased due to redundancy.

[7] The issues for determination are:

● Whether the Applicant was dismissed by the Respondent;

● If the Applicant was dismissed, was the dismissal harsh, unjust or unreasonable; and

● If the Applicant was dismissed and the dismissal was harsh, unjust or unreasonable (in which case he was unfairly dismissed) what remedy, if any, should follow.

[8] At the commencement of the hearing in Mildura on 26 August 2014, I identified these as the issues for determination 3 and advised the parties that I would hear evidence and submissions in relation to each issue and determine the issues in the order indicated above.4

Contentions in respect of the issues for determination

Was the Applicant dismissed by the Respondent?

[9] The Applicant contends that he was dismissed by the Respondent either:

● on 8 May 2014, as a result of the alteration of the basis of his employment from full-time ongoing employment to casual employment; or

● on 13 May 2014, dismissal by way of language used – “We’re done here” – and the making of an offer to the Applicant which involved him leaving his employment and/or constructive dismissal as a result of conduct, or a course of conduct by the Respondent which forced the Applicant to leave his employment (s.386(1)(b) of the Act).

[10] The “conduct” was said to be:

● an unreasonable request to the Applicant that he provide a medical clearance and undertake a drug and alcohol test as a condition to him resuming work after an absence on sick leave, although the Applicant denied this occurred in his evidence; 5

● an assault by Mr M Johnson, the dealer principal of the Respondent; and

● action by Mr Johnson to prevent the Applicant removing a car he had purchased from the Respondent from its premises.

[11] The Respondent submitted that it had not altered the basis of the Applicant’s employment to casual employment on 8 May 2014, did not terminate his employment or take actions which left the Applicant no option but to leave his employment on 13 May 2014.

If the Applicant was dismissed, was the dismissal harsh, unjust or unreasonable?

[12] The Applicant submitted that the dismissal was harsh, unjust or unreasonable:

● There was no valid reason for the termination;

● The Respondent did not notify the Applicant of any reason for his termination;

● The Applicant was provided with no opportunity to respond to the reasons for his termination;

● In the meeting of 13 May 2014, the Applicant sought an opportunity to seek further advice and assistance from his father, which was denied to him by the Respondent;

● The termination did not relate to unsatisfactory performance by the Applicant;

● The procedural defects of the Respondent in relation to the termination were so marked that the size of the enterprise (which was not a small business as defined in the Act) and the absence of Human Resources expertise cannot be relied upon to justify them; and

● Other matters (an assault on the Applicant, an attempt to detain his motor vehicle and the actual retention of its registration plates and the repudiation of the employment contract after the provision of a medical certificate by the Applicant) support a finding that the termination was harsh, unjust and unreasonable.

[13] The Respondent restricted its case to the issue of whether there was a dismissal and put no argument that, if the Applicant had been dismissed by it, that the termination was not harsh, unjust and unreasonable.

Remedy

[14] In the event that it was found that the Applicant had been unfairly dismissed (s.387), the Applicant did not seek reinstatement but sought compensation of 13 weeks pay.

[15] The Respondent restricted its case to the issue of whether there was a dismissal and put no argument on remedy.

Evidence

[16] The evidence brought in the hearing was limited.

[17] The Applicant gave evidence on his own behalf. His partner, Ms J Edens gave limited evidence, principally recounting a telephone conversation made to her by the Applicant on 13 May 2014, from the Respondent’s car park when Mr Johnson was in the process of removing the registration plates of the Applicant’s vehicle.

[18] Mr Johnson was the only witness for the Respondent. Mr Johnson is the dealer principal of the Respondent. The Respondent also relied on a video recording of the latter part of the interaction between the Applicant and Mr Johnson (and the Respondent’s other employees) in the Respondent’s car park on 13 May 2014.

[19] The contest as to the content of the discussions between the Applicant and Mr Johnson on 8 and 13 May 2014 came down to competing evidence given by them and ancillary evidence relevant to the versions of the conversation provided in evidence.

[20] The Applicant invited me to make an adverse finding of credibility against Mr Johnson and to prefer the evidence of the Applicant. I am not persuaded that the evidence supports a finding of relative credibility between Mr Johnson and the Applicant. Each witness was direct in their evidence but skewed their versions of events in favour of their respective cases. In this respect, Mr Johnson’s evidence focussed on less favourable aspects of the Applicant’s performance and behaviours (in contrast to a 3 April 2014 letter 6 provided to assist the Applicant in relation to legal proceedings against him which unsurprisingly focussed on positive aspects of the Applicant’s performance and behaviours). On the other hand, the Applicant embellished some of his evidence to cast the Respondent in the worst possible light, as illustrated by his evidence that he was “restrained” by other employees to allow Mr Johnson to remove the registration plates of his car. Video footage7 shows this not to be the case. Whilst the Applicant clarified that by “restrained” he meant verbally dissuaded him from preventing Mr Johnson removing the registration plates8 that explanation bears no relationship to the meaning of “restrained” particularly in the context of the Applicant’s later evidence that the two employees “released him” after the removal of the registration plates.9 I do not accept that the video tendered by Mr Johnson was altered in the sense that it was changed to alter the true position shown. On the evidence, the video was provided in its true form, save that the IT person who transferred it from a mobile telephone to a storage disk did not transfer the audio component. Mr Johnson offered to make available the recording, from which the tendered video was made, to the Applicant’s solicitors and the Commission.10

[21] Whilst the evidence of Mr Johnson and the Applicant was skewed in favour of their own cases, I am not persuaded that there is a proper basis to make a finding of relative credibility between the two witnesses in a general sense.

[22] The evidence of the Applicant and Mr Johnson is further considered in deciding the issues for determination below.

Consideration

Events prior to 8 May 2014

[23] In his evidence, the Applicant recounted an incident in about March 2014 in which he had a discussion with Mr Johnson about a customer complaint about a part made by the Applicant. His evidence was that Mr Johnson stood over him and bumped the Applicant’s chest. The Applicant believed this marked the commencement of a negative attitude by Mr Johnson toward him. 11 Mr Johnson’s evidence was that the Applicant threatened him by bumping his chest. It is unnecessary to make any finding as to who was responsible or more responsible for the chest contact. In either case, the March 2014 incident was an isolated event and does not in my view support the proposition that Mr Johnson had adopted a negative attitude toward the Applicant from this point in time. There was no other evidence to support such a proposition.

[24] On 2 April 2013, the Applicant purchased a car from the Respondent, subject to a Personal Loan Agreement 12 on the basis of an upfront payment and regular monthly payments on the basis that the registration of the vehicle would not be transferred to the Applicant until the whole of the balance had been paid. The car is relevant to the extent that it was the vehicle involved in the incident concerning the registration plates on 13 May 2014.

[25] There was also evidence, which was not in dispute, that Mr Johnson requested that the Applicant take annual leave in respect of the days between Easter and Anzac Day in April 2014, a request to which the Applicant reluctantly acceded.

Events of 7 and 8 May 2014

[26] The Applicant’s evidence is that on 7 May 2014, Mr A Johnson (the workplace foreman) approached him at lunch-time, told him there was no work for him to do and that he should go home. The Respondent’s evidence was that on 7 May 2014, the Applicant was loud and abusive to other employees and was being disruptive and was sent home because of his behaviour 13 and a belief by Mr Johnson that the Applicant was drug affected. It is clear that a decision was made by the Respondent to send the Applicant home. On the basis of the Applicant’s evidence, I find that the reason for doing so, explained in the evidence of Mr Johnson, was not put to him.

[27] On 8 May 2014, the Applicant visited his general practitioner as he suspected he had injured his knee. The Applicant received a medical certificate, dated 8 May 2014, certifying that he was unable to attend work from 8 May until 15 May 2014. 14 Later that day he attended the workplace and provided the certificate to Mr Johnson.

[28] The Applicant’s evidence was that Mr Johnson informed him that he would no longer be a full-time employee and would be made casual, along with all other staff, due to a shortage of work. In his evidence, Mr Johnson denied that he said the Applicant would be placed on casual contract work, describing the Applicant’s evidence on the issue “as a fabrication”. He confirmed that the 8 May 2014 medical certificate was supplied to him and the Applicant explained the medical issue on the basis that he had injured his knee years ago and it was troubling him. 15

[29] In relation to the clear conflict of evidence on this point, I prefer the evidence of Mr Johnson, having regard to ancillary evidence. First, the evidence of Mr Johnson was that there was no shortage of work for the Respondent, 16 making it unlikely that all staff, including the Applicant, were to be converted to casual employment. Second, the pay advices of the Applicant17 indicate that after 8 May 2014, the Applicant continued to be paid as a full-time ongoing employee and being paid personal leave and annual leave until his accruals were exhausted whilst absent from the workplace in accordance with his medical certificate of 8 May 2014.

[30] The evidence does not support a finding that the Applicant’s employment status was altered to casual employment on 8 May 2014 or at any other time.

Events on 9 May 20014

[31] On 9 May 2014 the Applicant used savings to pay out the outstanding balance owed in respect of the purchase of the car from the Respondent, due to his concerns about being a casual employee.

Events of 13 May 2014

[32] The events in the office of Mr Johnson on 13 May 2014 were relied on by the Applicant as evidence that the Respondent had terminated his employment, directly, or in combination with the events in the Respondent’s car park on that day, which constituted a dismissal within the meaning of s.386(1)(b) of the Act, in that the Applicant resigned from his employment, “but was forced to do so because of conduct, or a course of conduct”, engaged in by the Respondent and Mr Johnson specifically.

[33] A forced resignation occurs when “an employee has no effective or real choice but to resign”. 18 The question for immediate determination is whether the Applicant was forced to resign due to the conduct of the Respondent. The employee “must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign” (although it is not necessary to prove that “the employer intended to force the employee to resign”).19 “[S]ome 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” is required.20

Events in the office of Mr Johnson on 13 May 2014

[34] On 13 May 2014 the Applicant rang Mr Johnson. His evidence was that he rang to enquire about work as a casual employee and that Mr Johnson said “there was no work at the moment so it didn’t matter”, 21 a proposition denied by Mr Johnson.22 The Applicant advised Mr Johnson that he had spoken to the office of the Fair Work Ombudsman about his rights and Mr Johnson invited him to come into work and see him immediately. Mr Johnson’s evidence was that the Applicant rang and stated he wanted to come back to work and Mr Johnson invited him to a meeting in his office to talk about what the Applicant wanted to do and to sort out the transfer of the vehicle the Applicant had purchased.23

[35] The Applicant then attended the workplace and met with Mr Johnson in his office.

[36] The Applicant’s evidence was that:

● He advised Mr Johnson that he had spoken to the office of the Fair Work Ombudsman and Mr Johnson became angry and shouted at the Applicant;

● Mr Johnson then asked the Applicant what he wanted, to which the Applicant replied he did not know and needed some advice;

● The Applicant raised the proposition of a minimum of two weeks’ notice. 24 Mr Johnson then said words to the effect “I’ll give you two weeks’ pay and that’s it” and gave the Applicant a short deadline to consider the proposition; 25

● The Applicant told Mr Johnson he could not accept the offer because he wanted to obtain further advice;

● Mr Johnson then said words to the effect of “you can leave the car here” and “we are done here”; 26 and

● At no time during the meeting of 13 May 2014 did Mr Johnson ask the Applicant to undertake a medical examination or drug testing procedure before returning to work. 27

[37] The evidence of Mr Johnson about the meeting in the office was that:

● The Applicant stated that he wanted to come back to work;

● Given the Applicant was seeking a return to work whilst still subject to an absence supported by a medical certificate and Mr Johnson’s perception that his recent behaviour had been erratic, Mr Johnson advised the Applicant that he could come back to work if he would undertake a medical examination and drug test as per company policies to ensure he was well enough to return to work;

● As a result of that request the Applicant became angry and shouted at Mr Johnson;

● Mr Johnson also explained the car the Applicant had purchased needed to be transferred from the company name to the Applicant. The Applicant was not ready to do so; and

● Mr Johnson denies having said “you can leave the car here” and “we’re done here”. 28

[38] The Respondent contested the Applicant’s evidence that Mr Johnson had made an offer of two weeks wages to end the employment, advancing the proposition that when the Applicant was asked what he wanted, the Applicant stated that he wanted two weeks’ pay. 29

[39] The two accounts of the meeting have some common ground but reflect some significant differences. It is difficult, given the limited evidence, to reach a finding as to what actually occurred at the meeting. I find that the Applicant was uncertain at the meeting as to what he wanted to do and when asked what he wanted raised the issue of the two weeks’ notice. I find that Mr Johnson asked him to confirm if that was what he wanted, rather than make an offer of two weeks wages to end the employment and the Applicant was unable to confirm what he wanted. I do not accept that Mr Johnson advised the Applicant that he could come back to work if he would undertake a medical examination and drug test, having regard to the absence of a decision by the Applicant that he wished to return to work. In addition, it is inherently unlikely that a pre-return to work drug test would have been required in the absence of a suggestion of impairment at the time of a return to work. Given Mr Johnson’s evidence that the medical clearance and drug test were put together I do not accept that they were put to the Applicant. I find that the issue of the registration plates was raised and Mr Johnson said “you can leave the car here” given what followed. I also find that Mr Johnson said “we’re done here” but find it was the reference to the conclusion of the meeting, having regard to the common evidence of both parties that Mr Johnson imposed an end point on the meeting. 30 It was not a statement or indication that the employment relation was at an end. I find that both men were agitated by the end of that meeting.

[40] I do not find that the conduct of the Respondent in the 13 May 2014 meeting directly terminated the employment of the Applicant or was intended to or had the probable effect of the Applicant removing himself from the employment. On the evidence, the Applicant was still assessing his position at that time.

Events in the Respondent’s car park on 13 May 2014

[41] The Applicant’s evidence was that, after he and Mr Johnson left the office:

● Mr Johnson went to the service desk and asked an employee to bring screwdrivers to the car park.

● As Mr Johnson approached the Applicant’s car, the Applicant said “you’re not taking my car”.

● Mr Johnson then stood over the Applicant and punched him in the cheek and mouth and behind the ear.

● The Applicant telephoned Ms Edens and said “he hit me”.

● Another employee brought screwdrivers to the car park.

● Mr Johnson grabbed a screwdriver and started to remove the rear registration plate.

● The Applicant stepped between Mr Johnson and the car at which point Mr Johnson thrust a screwdriver toward him scraping his ribs.

● The Applicant grappled with Mr Johnson on two occasions grabbing the screwdriver and throwing it away.

● Two other employees emerged and “restrained” the Applicant while Mr Johnson removed the rear registration plate and another employee removed the front registration plate from the car.

[42] According to the evidence of Mr Johnson, as a result of the Applicant’s shouting in his office, Mr Johnson walked out of the office and asked for a screwdriver to remove the registration plates until such time when the Applicant was ready to the transfer ownership of the car to himself. Mr Johnson’s evidence was that an altercation occurred between the Applicant and himself, during which the Applicant became violent throwing a punch at and striking Mr Johnson and he defended himself, hitting the Applicant.

[43] Mr Johnson’s evidence was that the Applicant attacked him, “took the screwdriver out of my hand; threw the screwdriver across the yard three times”, overpowering Mr Johnson three times and assaulted him. 31 The Respondent’s evidence was that, in self-defence, Mr Johnson struck the Applicant after he had been hit and after he had been pushed several times.

[44] Consistent with my finding that both Mr Johnson and the Applicant were agitated by the end of the 13 May 2014 meeting, they remained agitated in the car park. The reasons advanced for by Mr Johnson for removing the registration plates suggested there was no urgency for doing so 32 and, on Mr Johnson’s view of the Applicant’s state of mind, his actions were likely to add to the Applicant’s already agitated state of mind.33 What followed was a physical altercation between the pair, with the Applicant grappling with Mr Johnston to remove and throw away the screwdriver on several occasions, some punches being exchanged and the Applicant sustaining some minor injuries in the course of the grappling and punches.

[45] The video provided did not capture the scuffle and the physical interchange between the Applicant and Mr Johnson. The evidence of both witnesses (save for the Applicant’s incorrect suggestion of being restrained) and the video, suggest that things calmed down after the scuffle and Mr Johnson and another employee removed the registration plates from the car.

[46] Whilst the action of Mr Johnson following the 13 May 2014 meeting to remove the registration plates was provocative and his role in the physical altercation does not reflect well upon him, I am not satisfied that those actions were intended to bring the employment to an end or constituted conduct or a course of conduct which had the probable result of bringing the employment relationship to an end.

[47] Nor am I satisfied that the conduct of the Respondent (and Mr Johnson) during the course of 13 May 2014 as a whole were intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.

[48] Finally, the action by the Respondent’s bookkeeper, Ms H Brice on 14 or 15 May 2014, who rang the Applicant to let him know that his sick leave certificate had expired, to ascertain when he was returning to his employment 34 and to speak to him about the car and arranging a return of the registration plates to him35 were not consistent with the Respondent seeking to bring the employment to an end, either directly by termination or indirectly by leaving the Applicant no option but to remove himself from the employment.

Conclusion

[49] I am not satisfied that the Applicant was dismissed within the meaning of s.386(1)(a) or (b) of the Act. Accordingly, I am not satisfied that the Applicant was unfairly dismissed within the meaning of s.385 of the Act. The application by the Applicant is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

T Wolff for the Applicant.

M Robinson for the Respondent.

Hearing details:

2014.

Mildura:

August 26.

 1   MA000089 - see pay advices attached to Exhibit K2.

 2   Form F3, question 1.7.

 3   Transcript, at para 39.

 4   Transcript, at para 39.

 5   Exhibit K3, at para 7.

 6   Exhibit K5.

 7   Exhibit J3.

 8   Transcript, at para 532.

 9   Exhibit K2, at para 21.

 10   Transcript, at para 682.

 11   Exhibit K2, at paras 3 and 4.

 12   Attached to Exhibit K2.

 13   Transcript, at para 354.

 14   Exhibit FWC1.

 15   Transcript, at para 237.

 16   Transcript, at para 244.

 17   Attached to Exhibit K2.

 18   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206.

 19   Australian Hearing v Peary (2009) 185 IR 359, 367 at para 30.

 20   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100-528; [2006] AIRC 49 at para 23.

 21   Exhibit K2, at para 12.

 22   Transcript, at para 378.

 23  Transcript, at para 239.

 24   Transcript, at para 195.

 25   Exhibit K2 at para 15.

 26   Exhibit K2 at para 15.

 27   Exhibit K3, at para 7.

 28   Transcript, at paras 442-443.

 29   Transcript, at paras 196, 244 and 434.

 30   Exhibit K2, at para 15 and Transcript, at para 437.

 31   Transcript, at para 469.

 32   Transcript, at paras 446 and 459.

 33   Transcript, at para 459.

 34   Transcript, at para 99.

 35   Transcript, at para 93.

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