Bradley Batrick v Wintersun Holdings Pty Ltd T/A Suckling Civil & Structural Engineers

[2016] FWC 2466

[2016] FWC 2466

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Bradley Batrick
v
Wintersun Holdings Pty Ltd T/A Suckling Civil & Structural Engineers
(U2015/13367)

COMMISSIONER WILLIAMS PERTH, 4 MAY 2016

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application made by Mr Bradley Batrick (Mr Batrick or the applicant). The respondent is Wintersun Holdings Pty Ltd T/A Suckling Civil & Structural Engineers (the respondent).

[2] The respondent has filed an application under section 399A of the Fair Work Act 2009 (the Act) for the unfair dismissal remedy application to be dismissed based on Mr Batrick’s failure to comply with directions issued by the Commission to file written materials in support of his application. At the hearing the respondent’s representative quite sensibly advised that they did not seek to press their section 399A application further. In any event the failure to comply on which the respondent relied was Mr Batrick providing his materials very shortly after the time specified in the Commission’s directions in circumstances where Mr Batrick has at all times been self-represented. It would be extremely unlikely that the Commission would exercise the discretion in section 399A to dismiss an application summarily for such minor non-compliance.

[3] At the hearing of this matter Mr Batrick gave evidence as did Mr Peter Suckling (Mr Suckling) the Principal of the respondent.

Factual findings

[4] The respondent’s business is a small business with nine employees.

[5] It is not in dispute that from approximately the year 2000 Mr Batrick has worked as a Draughtsman in the respondent’s business. For some years Mr Batrick was a Contractor rendering services to the respondent under the name of Batrick Design and Drafting. Whilst there is a dispute between the parties as to when this occurred, in approximately 2009 Mr Batrick became directly employed by the respondent and remained so until the employment ended in September 2015. For the purposes of this unfair dismissal remedy application nothing turns on the precise date of this change of status.

[6] On 9 September 2015 Mr Batrick rang the respondent’s office and spoke to the Office Manager Ms Jane Ryan (Ms Ryan). Mr Batrick notified her he was on personal leave and would be off work until 11 September 2015. He also advised Ms Ryan that he had a number of grievances with the respondent and that he would deliver a letter outlining these.

[7] On Monday, 14 September 2015 Ms Ryan sent an email at 1.15 p.m. requesting Mr Batrick provide a medical certificate in order for her to calculate his pay.

[8] The evidence is that on Monday, 14 September 2015 around 3.00 p.m. Mr Batrick had hand-delivered a letter to Mr Suckling’s residence. That letter was dated 11 September 2015. The letter was two pages long, the first of which traversed the history of the working relationship between Mr Batrick and Mr Suckling. The letter then dealt with the fact that Mr Batrick had recently raised questions with Mr Suckling about long service leave, work contracts and other entitlements and Mr Suckling had responded he is seeking legal advice.

[9] The last paragraph of the letter says Mr Batrick can’t and won’t continue to work for not much more money than his 15-year-old daughter earns at Kmart on a Sunday. Mr Batrick says that given the circumstances he has felt he had no other choice than to at least start exploring other employment options or even the possibility of starting his own business. The letter then states,

“Please don’t get me wrong, this letter is not a letter of resignation, at this point. And if it did come to that I would give you at least 4 weeks notice in writing. It’s not that I don’t want to continue working for ‘the company’. But fact is if you though, for me to continue working there, I would expect you to not only pay our entitlements, but also offer me something more attractive than my current Agreement, and commensurate to my abilities and experience. Otherwise I feel it is time for me to move on. Please ring me to discuss or alternatively I can come in before or after hours to discuss.”

[10] Two days later on Wednesday, 16 September 2015 at 2.28 p.m. Mr Suckling followed this up with an email to Mr Batrick stating that as at that date he had not provided the medical certificate he had told Ms Ryan he would be sending in. The email said that given this, personal leave would not be paid. Mr Suckling however said that he had noticed that Mr Batrick has annual leave accrued and he asked whether Mr Batrick wanted to use this to make up his pay.

[11] Shortly thereafter at 2.39 p.m. Mr Suckling sent a second email to Mr Batrick entitled “Mediation” advising that he had arranged for Workwise Advisory Services to convene a mediation the following Tuesday, 22 September at 1.00 p.m. The email advised this would be at Mr Suckling’s expense and would allow Mr Batrick to express his concerns to someone who is experienced in industrial relations. Mr Suckling stated that this should result in a resolution of the matter and allow everyone to move forward. Attached to this email was a product information guide explaining what workplace mediation was.

[12] It is common ground that around this time there were some difficulties with Mr Batrick’s email connection at his home and Mr Suckling was aware that Mr Batrick may not have been immediately receiving emails sent to him. Consequently around 4.30 p.m. that day Mr Suckling hand-delivered the information about mediation which he had earlier emailed to Mr Batrick. Mr Batrick was not home at that time.

[13] The next day Thursday, 17 September 2015 shortly after 7.30 a.m. Mr Batrick rang the respondent’s office to speak to Mr Suckling however he was not available. Shortly thereafter Mr Suckling returned Mr Batrick’s call. Both Mr Suckling and Mr Batrick in their evidence refer to the discussion that then occurred between the two men on the telephone as being “heated”.

[14] Mr Batrick’s evidence is that during that phone call he did not at any point resign and he did not ever tender a letter of resignation.

[15] Mr Suckling’s evidence is that during their conversation Mr Batrick said he was resigning his employment and that he would provide Mr Suckling with his written resignation later that day. Mr Suckling then took legal advice as to the situation.

[16] Consequently at 8.52 a.m. that morning Mr Suckling sent to Mr Batrick’s an email the subject of which was “Employment” which read:

“Brad,

Further to the phone conversation with this office, of 7:43 AM this morning Thursday, 17 September 2015.

This office accepts your advised resignation, forthwith.

All entitlements will be calculated to this day.”

[17] Next at 11.24 a.m. that day Mr Batrick sent an email to Mr Suckling. This email was a reply to the email Mr Suckling had sent the previous afternoon entitled “Mediation”. Mr Batrick’s email traversed the history of a number of their interactions and referred to the fact that Mr Suckling had previously said he would organise a mediation meeting for Tuesday of that week but this never happened and mentioned that on late Wednesday afternoon at 4.30 p.m. Mr Suckling had hand-delivered to Mr Batrick’s residence the mediation information that had previously been email to him.

[18] Mr Batrick’s email goes on to state that:

“At this point, I am still on personal leave. I will supply doctors certificates to that effect in due course, when required. And due to the fact that you have told me you don’t want me to come to work, I will be taking long service leave next week until such time as the dispute is resolved, and indeed I am actually invited to come back to work, should that be the case. Should these matters not be resolved by the end of next week, I shall tender my resignation to you, in writing, with four weeks of notice, as required by the law.

I certainly did not want things to come to this, indeed I offered to come back to work whilst the matters were being resolved. I’m not sure what you expect me to do? You didn’t want me to come to work! I just want to sort things out amicably so that we can all move on, whichever direction that may be.”

[19] At 12.27 p.m. Mr Suckling sent another email to Mr Batrick entitled “Resignation” wherein he referred to their phone conversation earlier that morning and then stated:

“As principal of Civil and Structural Engineers, I accept your advised resignation, forthwith.

All entitlements will be calculated to this day and paid out.”

[20] Twenty-four minutes later at 12.51 p.m. Mr Batrick replied to Mr Suckling’s email in the following terms:

“What I actually said Peter is that you would ‘receive my written resignation by the end of the day’ Until such time as I actually resign of my own accord, you cannot force me to.”

[21] The respondent then proceeded to finalise Mr Batrick’s wages and entitlements. Mr Batrick did not return to work after this date.

The issue to be determined

[22] The central issue to be determined was whether during the phone conversation on the morning of 17 September 2015 Mr Batrick did resign or not. If Mr Batrick did not resign then the subsequent actions of the respondent do amount to termination of Mr Batrick’s employment on the employer’s initiative.

[23] 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 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 by the employee. That said where an employee unambiguously communicates their intention to resign no further enquiry is required.

[24] A Full Bench of the Australian Industrial Relations Commission in Ngo v Link Printing Pty Ltd [(1999) 94 IR 375] at [12] explained these principles as follows:

“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 361-362 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.’...” ” (Underlining added)

[25] The evidence of Mr Suckling which I accept is that he understood from what Mr Batrick had said in their conversation on the morning of 17 September 2015 that Mr Batrick had resigned with immediate effect. That of course is Mr Suckling’s subjective understanding. The Commission’s role is to judge objectively whether indeed Mr Batrick did intend to resign.

[26] The evidence is that after their telephone conversation Mr Batrick had said in his email to Mr Suckling at 11.24 a.m. that he was still on personal leave and would attend the mediation session the following week and if matters were not resolved by the end of the following week he would tender his resignation in writing with four weeks’ notice as required by law. After this email was sent Mr Suckling’s second email was sent to Mr Batrick again advising he was accepting Mr Batrick’s earlier verbal resignation on the basis that it was effective that day. Next in response to this email Mr Batrick replied saying that during their heated conversation he had said that that Mr Suckling would receive his written resignation by the end of the day and Mr Suckling could not force him to resign until he resigned of his own accord.

[27] Both Mr Suckling and Mr Batrick say their conversation on the telephone that morning was an ill-tempered one with some heat. Mr Suckling quite sensibly, after having taken advice, thought it was necessary to notify Mr Batrick of his understanding that Mr Batrick had tendered his resignation effective that day. Mr Suckling however received two emails from Mr Batrick within five hours of their heated discussion. The first unambiguously indicated Mr Batrick viewed his employment as continuing but potentially coming to an end by him giving written notice if the dispute was not resolved in the future. The second email indicated Mr Batrick believed he couldn’t be forced to resign and hadn’t done so until he resigned of his own accord. Both emails clearly indicated that Mr Batrick believed he had not yet resigned.

[28] On balance I accept the evidence of Mr Batrick that he had no intention of resigning his employment and did not do so during the conversation with Mr Suckling on the morning of 17 September 2015. This conclusion is supported by the content of both emails sent to Mr Suckling by Mr Batrick later that day. It is easy to understand why Mr Suckling believed Mr Batrick had resigned however this subjective view gained during their heated discussion is not supported by the other evidence, the two emails, which followed shortly afterwards which both indicate Mr Batrick did not intend to resign. At its highest he was threatening to resign, possibly later that day, or at some time in the near future.

[29] It is fair to observe that Mr Batrick created the environment which led to Mr Suckling misunderstanding his intention to resign. It was Mr Batrick who had had repeatedly threatened, both verbally and in writing, that he would resign.

[30] Unfortunately the respondent did not give proper attention to what Mr Batrick had said in his two emails of 17 September 2015 and acted from that day onwards as if Mr Batrick had resigned when in fact he had not. Consequently I find that what occurred was a termination of Mr Batrick’s employment at the employer’s initiative. Mr Batrick was dismissed by the respondent.

Was the dismissal harsh, unjust or unreasonable?

[31] Section 387 of the Act sets out the criteria for the Commission to consider when deciding whether or not a dismissal was harsh, unjust or unreasonable.

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Valid reason 387(a)

[32] The circumstances of this case were that with some justification the employer mistakenly accepted what appeared to be a resignation by the applicant when the applicant had in fact not intended to resign at that point. Consequently the respondent’s actions amounted to the dismissal of the applicant. These circumstances do not amount to a valid reason for the dismissal.

[33] The balance of the criteria in subsections 387(b) to (h) is not applicable to the particular circumstances of this case.

[34] In these circumstances the dismissal of Mr Batrick was unreasonable and so the dismissal was unfair.

Remedy

[35] The primary remedy provided for in the legislation is reinstatement under section 391. I have considered whether reinstatement is appropriate and I am satisfied in all the circumstances that it is not. Those circumstances are that the original conflict that led to Mr Batrick being dismissed was between him and the respondent’s Principal Mr Suckling. The two men have had a relationship over a long period of years however it had clearly soured for a number of reasons to the point where the applicant had advised that he was considering opportunities elsewhere including setting up his own business and had expressly told Mr Suckling on a number of occasions that it was more likely than not that he would resign at some point in the near future. The statements about future resignation were being used by Mr Batrick as a threat in an attempt to coerce Mr Suckling to concede ground to Mr Batrick on a number of issues. The Commission has no view as to the merits or otherwise of Mr Batrick’s view of those issues. There is no reason however to believe that the underlying source of the conflict between the two men has been resolved. In all of those circumstances reinstatement is not appropriate.

[36] Section 392 of the Act, set out below, provides the criteria the Commission must have regard for in deciding an appropriate amount of compensation.

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[37] There is no evidence before the Commission to indicate that an order of compensation would affect the viability of the employer’s enterprise.

[38] In terms of length of service there is some dispute about this. Mr Batrick says he has been employed since the year 2000 whereas Mr Suckling has provided evidence that Mr Batrick has only been an employee, rather than a contractor, since 2009. The length of service then is between 7 and 16 years.

[39] In terms of the remuneration Mr Batrick would have received had he not been dismissed. I am satisfied on the evidence of his email to Mr Suckling on 17 September 2015 sent at 11.24 a.m. that had he not been dismissed Mr Batrick would have remained absent from work for the balance of that week, being Friday, 18 September 2015, on personal leave which would have been unpaid because the evidence is he had exhausted his entitlement to personal leave already. Mr Batrick in this email then said he intended to remain absent for the following week on long service leave. He also stated that should the matters in dispute with Mr Suckling not be resolved by the end of that week he would tender his resignation giving four weeks’ notice.

[40] Given the matters in dispute which Mr Batrick had raised with Mr Suckling in his letter of 11 September 2015 extended beyond entitlements and long service leave and included not being properly rewarded or recognised and not being informed about the future of the company and his role within it and given the heated exchange between the two men on 17 September 2015 it is unlikely that the mediation process which might otherwise have been held on Wednesday, 22 September 2015 would have resolved their dispute. Whilst this unavoidably involves a certain amount of speculation my conclusion is that the most likely outcome is that the dispute not having been resolved to his satisfaction Mr Batrick would have tendered his written resignation on Friday, 24 September 2015 giving four weeks’ notice.

[41] Consequently the maximum remuneration Mr Batrick would have been likely to receive had he not been dismissed would have been payment for those four weeks also assuming he had returned to the workplace and worked for this period.

[42] Mr Batrick has not provided any evidence as to the efforts he has made to mitigate his loss since his employment ended.

[43] Mr Batrick has not gained other employment since his employment ended.

[44] The evidence is that notwithstanding the respondent believed Mr Batrick had resigned they have paid him four weeks’ wages in lieu of notice at the time the employment ended. These details are included on one of the payslips provided by Mr Batrick in these proceedings which identifies an “ETP Taxable” (eligible termination payment) amount of 152 hours which is also recorded on the employment separation certificate as an amount paid in lieu of notice of $5,480.77.

[45] In summary then the respondent, at the time Mr Batrick’s employment ended, paid him four weeks’ wages in lieu of notice which equates to the maximum remuneration he would have been likely to receive had he not been dismissed as he was.

[46] In these circumstances then the amount of compensation that should be awarded to Mr Batrick is zero. Consequently no order for compensation will be issued.

Conclusion

[47] The Commission has found that Mr Batrick was dismissed and applying the criteria under the legislation his dismissal was unfair. The facts of the matter indicate that had he not been dismissed Mr Batrick would have only been likely to earn a further four weeks’ wages. This would be the maximum amount of compensation the Commission might order, however this same amount was paid to him by his employer at the time his employment ended and this payment must be taken into account by the Commission. Consequently no amount of compensation will be ordered to Mr Batrick.

[48] As was explained to the parties at the hearing of this matter the Commission has no jurisdiction to deal with the question of any entitlements Mr Batrick may or may not have to long service leave payments.

COMMISSIONER

Appearances:

B Batrick on his own behalf.

S Mare of Workwise Advisory Services on behalf of the respondent.

Hearing details:

2016.

Perth:

April 13.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR579220>