Brendan Cartmel and Skilled Engineering Pty Limited
[1995] IRCA 140
•5 Apr 1995
CATCHWORDS
INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination -
Performance and discipline policy and procedure - Written warning issued - provision for retention and filing of records of counselling interviews - Provision for employee to nominate a witness to interviews - Resignation or termination.
Industrial Relations Act 1988, S170CB, S170DC, S170DE, S170EA, S170EDA
Barclay v City of Glasgow District Council [1983] IRLR 313
Grout v Gunnedah Shire Council [1979] 125 ALR 355
Sheffield v Oxford Control Company Ltd [1979] IRLR 133
BRENDAN JOHN CARTMEL v SKILLED ENGINEERING PTY LIMITED
No. VI-2503/94
Before: Ryan JR
Place: Melbourne
Date: 5 April 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI- 2503/94
B E T W E E N: BRENDAN CARTMEL
Applicant
AND:SKILLED ENGINEERING PTY LIMITED
Respondent
RYAN JR
MINUTES OF ORDER
5 APRIL 1995
THE COURT ORDERS THAT:
The application pursuant to S170EA of the Industrial Relations Act 1988 be dismissed.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-2503/94
B E T W E E N: BRENDAN CARTMEL
Applicant
AND: SKILLED ENGINEERING PTY LIMITED
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 5 APRIL 1995
REASONS FOR JUDGMENT
THE CLAIM AND THE RESPONSE
The applicant seeks reinstatement claiming unlawful termination of employment by the respondent.
The respondent denies that it acted to end the employment. In fact, the respondent alleges the applicant ended the employment by resignation.
The respondent also states that, if the Court were to find that the employment of the applicant was terminated by an act of the employer, there were valid reasons for termination and that such a termination, if found to have occurred, was not unlawful.
THE EMPLOYMENT
The applicant has a degree in engineering, a tradesman’s certificate, a licentiate in theology and a post-graduate diploma in organisational behaviour. He joined the respondent as a consultant in the Engineering and Drafting Division on 21 March 1994.
His position description states that he was responsible for:
· Interviewing and selection of professional personnel for clients in the Melbourne metropolitan area.
· Providing assistance to country Victoria and interstate branches where required.
· Marketing of services to clients.
· Meeting clients to discuss specific candidates proposed.
· Servicing and follow-up of clients.
· Management of enquiries and orders to conclusion.
· Loading of jobs onto computer system.
· Screening resumes.
· Reference checking.
· Maintenance of client and contractor records.
Handling telephone enquiries.
The position description also authorised him to:
· Hire and fire contractors.
· Negotiate pricing and contractual arrangements with clients and contractors.
· Promote the company’s range of available services.
· Sign contract letters.
· Place line advertisements.
The applicant’s letter of appointment, dated 25 March 1994, was signed by Craig Law, Victorian Operations Manager. The letter
1. sets out a salary package of $35,000 per annum, superannuation contributions in line with current superannuation guarantee contribution legislation and payment of home telephone account
2. documents a 3 month probationary period and a formal review of performance, to be conducted at the expiration of this period
3. reserves the right for the employer to give notice during the probationary period of an intention to terminate employment solely on the basis of performance not being to the satisfaction of the employer
4. refers to the position of Manager of the Engineering and Drafting Division as currently vacant and advises that at the expiration of 6 months from the date of commencement of employment the employer will again formally review performance and discuss the possibility of appointment to the manager’s position, with a salary review to follow, if such appointment is made.
The Court accepts that the applicant was given a short one-day induction course and general on-the-job training in the first 2 to 3 months of his employment. This training included general instruction in the use of the primary document used in the Engineering and Drafting Division, a telephone enquiry order form.
The Respondent operates in a competitive, professional, Selection and Recruitment field and the Engineering and Drafting Division specialises in recruiting short-term technical staff. Many clients are seeking such staff urgently and at short notice. Much of the work is carried out by telephone and fax.
The telephone enquiry order form provides space for recording the employer, details of staff sought, the time for which the staff are sought, the whereabouts of each job, qualifications/experience required, the job description, action taken, rates quoted, follow up action, starting details and address for invoice.
The telephone enquiry order form is small, approximately 14 cm by 20 cm. It caters for the recording of essential operating information in a concise, summarised form. If a recruitment consultant wants to record more detailed information he or she needs to use the blank, back of the form, or attach notes to the form.
The Respondent tendered 10 copies of such forms actually used by the Applicant and in part by other consultants. They are Exhibits R1 to R10. The copies tendered all have hand written notes on the front and back. All contain some notes and records in the handwriting of the Applicant. The Respondent claims that each is an example of inadequate action by the Applicant, or, if appropriate action has been taken as generally claimed by the Applicant, the Respondent’s position is that the action has not been recorded.
By and large, the position taken by the Respondent is that inadequate action had been taken in respect of these orders, and that follow up action was taken by other consultants after the Applicant left the employment on 25 November 1994.
On 26 July the salaries of the Respondent’s consultants were reviewed. Craig Law gave evidence that at this time the Applicant and one other consultant received a 4% increase on base salary. This was classified as an indication of adequate performance and Mr Law swore that at this time he discussed performance generally with the Applicant. He also indicated that 2 other members of staff were given 10% and 11% increases respectively, for exceptional performance. Mr Law’s evidence included the following:
“Mr Cartmel raised with me the position of manager at that time, because we were talking about a review of his salary. I explained to Mr Cartmel that he was not really fulfilling the requirements of a consultant at that time. His review was in line with that appraisal. What we needed was for him to be still aspiring to be conquering the position of consultant before we could even consider discussing the position of manager at any length. I was discussing with Mr Cartmel his ability to document the work he was dealing with, and to follow things through to a satisfactory conclusion.”
EMPLOYEE PERFORMANCE AND DISCIPLINE PROCEDURE
On 22 July 1994 at about the time when the Applicant was subject to his first Performance Review, the National Quality Assurance Manager of the Respondent company approved of and signed a detailed Performance and Discipline Procedure. The Applicant conceded that he was provided with a copy of this procedure, read it and was familiar with the requirements.
The policy sets out in considerable detail, 4 steps which are normally to be followed in sequence when action is taken for unacceptable performance/conduct. The steps are set out in their entirety below. The Court notes that the last sentence in respect of Step 1 reads as follows:
“The steps must be followed in sequence, however, the point of entry to the steps depends on the nature of the incident.”
Steps to follow when taking action on unacceptable performance/conduct.
Step 1. Informal counselling
Should counselling be required the following procedure will be implemented:
Where an employee’s performance/conduct is not up to the required standard, the manager/supervisor shall informally discuss with the employee that performance/conduct is not up to standard. Restate the standard required, inquire as to reason why performance/conduct has declined and agree to measures to rectify poor performance/conduct. Inform the employee that continuing unsatisfactory performance/conduct will lead to a formal assessment of continuing employment.
The supervisor should make a diary note of the discussion.
Where unacceptable performance/conduct requires follow up action, the process to be followed is made up of a number of steps. The action considered appropriate will be determined by the nature of the unacceptable performance/conduct in question. The steps must be followed in sequence, however, the point of entry to the steps depends on the nature of the incident.
Step 2. Formal Counselling Interview
Should the unacceptable performance/conduct be repeated eg persistent lateness, poor or slow workmanship, absenteeism, etc, then the following action is to be taken by the Supervisor.
The employee may nominate a witness to the counselling interview.
The Supervisor will verbally outline the unacceptable performance/conduct and attempt to solve the problem by discussing the situation with the employee.
In this counselling interview the Supervisor will:
Restate specifically the performance/conduct that is expected of the employee and what the performance of the employee is.
Endeavour to reach agreement with the employee on the cause of the problem (this may include making the employee aware of the various counselling alternatives).
Develop solutions with the employee.
Obtain the employee’s commitment to implementing the appropriate solution.
Explain the next step if the unacceptable performance/conduct continues.
Arrange with the employee when performance will be discussed again.
Complete the Employee Counselling Record of interview and ask the employee to sign the record. If the employee refuses to sign the record of the counselling interview, the refusal must be documented.
The above documentation will be destroyed if there is no recurrence of the unacceptable performance/conduct within 12 months of the incident.
Step 3. Formal Counselling and Written Warning
On a further recurrence of the unacceptable performance/conduct, the Supervisor will:
· Talk to the employee (along the lines of Step 2, above) and document the event covering;
· evidence of continued poor performance/conduct;
· employee’s explanation;
· statement of remedial action.
Complete the Employee Counselling Record of interview and ask the employee to sign the record. If the employee refuses to sign the record of the counselling interview, the refusal must be documented.
A copy of the counselling outcome should be given to the employee in the form of a warning letter. A copy must be placed on the employee’s personal file and copies given to any witness.
The above documentation will be destroyed if there is no recurrence of the unacceptable performance/conduct within 12 months of the incident.
Any further recurrence of unacceptable performance/conduct will result in termination of employment. (Step 4).
Step 4. Termination of Employment and Summary Dismissal
Taking the step to terminate the services of an employee should be exercised most carefully. Consideration of all factors is essential. The following factors are particularly important:
The reason for termination
Employee’s employment history
Termination is based on fact
Employee has had adequate opportunity to make a defence or provide an explanation
Are there reasonable alternatives to dismissal, eg transfer, demotion
Every reasonable opportunity has been given for earlier remedial action to be effective.
If a further incident of unacceptable performance/conduct occurs, the supervisor will:
counsel the employee as in Step 3;
if explanations are unsatisfactory then the employee shall be advised that their employment with Skilled Engineering will be terminated.
Complete the Employee Termination Record of interview and ask the employee to sign the record. If the employee refuses to sign the record of the Termination interview, the refusal must be documented.
Provide the employee with a written Termination advice and outline the method of termination (payment in lieu of notice, working period of notice, summary dismissal).
If requested by the employee, provide a written Termination Statement.
If requested by the employee, provide a written Certificate of Employment.
Copies of all documentation must be placed on the employee’s personal file.
COUNSELLING INTERVIEW 19 AUGUST 1994
In August a client complained that the Applicant had allowed an advertisement for a Technical Fitter to appear in The Age with the words “Award based” in the advertisement, contrary to the specific instructions of the client. The complaint led to an interview of the Applicant by Mr Craig Law in his capacity as Victorian Operations Manager. There is some dispute between the Applicant and Mr Law as to the content of the interview.
The Applicant claims that the interview was generally confined to the specific complaint although he concedes that Mr Law referred to but did not specify other complaints.The Applicant also admits that Mr Law requested more attention to detail.
In cross-examination Mr Law described the complaint about the advertisement as a catalyst for a more broad ranging discussion on performance. At one stage he said:
“There was a general discussion about many of the issues in the levels of performance and the things that needed to be done for Mr Cartmel to be performing well in his position.”
It is quite clear that the Respondent sees this interview and the record of it as Step 2 in the disciplinary process. It is equally clear that the Applicant regarded the interview and the record of it as informal counselling, more appropriate to Step 1. Indeed, the Applicant only signed the record of interview after he had cut off the heading which read “Employee Counselling - Record of interview”.
Both the Applicant and Mr Law retained copies of this amended record of interview. The original was tendered as Exhibit A7 and reads as follows:
Employee Name: Brendan Cartmel
Employee Position: Consultant - Engineering and Drafting Division - Vic
Location: South Yarra
Date: Friday 19 August 1994
Time: 3.30pm
The employee was interviewed in relation to the following matter/s:
General follow up of issues dealt with to satisfactory conclusion. Listening to instructions from clients and manager and complying. Accepting responsibility for actions taken without prolonged discussion.
The following responses were given in relation to these matters:
Acknowledgment of specific instances discussed. Explanation and apology for instances. Undertaking to improve in areas of concern.
The company has decided to proceed with the warning because:
Continued occurrences could be detrimental to business.
As a result of the interview, it was agreed the following change should occur:
All issues will be followed up to satisfactory conclusion (as agreed by Manager). Instructions will be followed as given (with clarification sought if unsure). Responsibility for actions will be taken without any prolonged discussion.
A written warning will not be issued and a copy will not be placed on your personal file. Continuation of this conduct may lead to termination of your employment. Your conduct will be reviewed on 22 September 1994 to assess whether the change has occurred.
Signature of Manager conducting interview: Craig Law
Signature of witness to interview: CONFIDENTIAL INTERVIEW.
The Court notes that the Applicant was only prepared to sign the above record of interview after he had inserted the words “will not be” so that the sentence now reads, “A written warning will not be issued and a copy will not be placed on your personal file.” There was no witness to the interview and the applicant wrote in the words “CONFIDENTIAL INTERVIEW”.
EMPLOYEE COUNSELLING - RECORD OF INTERVIEW 29 AUGUST 1994
On 26 August 1994 the Applicant overlooked or forgot an appointment arranged at his office with a client. The client attended for the interview. At that time the Applicant was actually at the client’s place of business because originally the interview had been arranged there, but had been transferred to the Respondent’s South Yarra office at the request of the client. It was the request for transfer agreed to by the Applicant which had been overlooked by the Applicant. A senior consultant and a competitor with the Applicant for the vacant position of manager, complained to Mr Craig almost immediately after the Applicant had failed to attend for the interview. When the Applicant returned to the South Yarra office Mr Craig was waiting for him and he was not happy. He conducted a fairly stern interview with the Applicant. In this respect Mr Law gave the following evidence:
“In this meeting we discussed the Kodak incident (the unkept appointment) in isolation. We also discussed the fact that we had been talking about not doing what our clients are requesting of us a week or so beforehand, in a formal counselling arrangement, and this action, following up so closely to the other incident was remarkable in my opinion, and also totally unacceptable, and we needed to make sure that Brendan (the Applicant) was following through things to a conclusion, and was paying attention to detail in the work that he was conducting on our behalf. The merits of servicing our clients well were explained in great detail, and it was also said to Mr Cartmel at the meeting that I thought the matter was serious enough that I wished to take it to the next step of the disciplinary process by including our State Manager, Patrick Flannigan, on the Monday morning. On Monday morning I met Mr Cartmel at South Yarra and we drove together to South Melbourne where we met Mr Flannigan. The same issues were covered. The same grounds were covered. Mr Cartmel was given the opportunity to discuss his point of view on the circumstances again. He was consistent in his approach that he was apologetic for the things that had been happening and acknowledged that his performance was not acceptable to the standards that Skilled Engineering were requiring. It was said to Mr Cartmel that any further serious occurrences would lead to the termination of his employment.”
After Law and the Applicant had returned to the South Yarra office, Law completed the following Record of Interview:
EMPLOYEE COUNSELLING - RECORD OF INTERVIEW
Employee Name: Brendan Cartmel
Employee Position: Consultant - Engineering and Drafting Division - Vic
Location: South Yarra
Date: Monday 29 August 1994
Time: 9.30am
The employee was interviewed in relation to the following matter/s:
Following previous counselling regarding unsatisfactory performance another incident concerning a ‘mix up’ with location for a client meeting occurred. This incident, one week after previous counselling is unacceptable. Employees ability to perform the required tasks to the expected standard is in doubt based on performance.
The following responses were given in relation to these matters:
Incident on Friday 26 August 1994 was ‘stupid’ and no excuse acceptable. Acknowledgment that standard of performance required is higher than thought and is not being achieved. Employee believes that still learning and in 6-12 months time could reach standards.
The company has decided to proceed with the warning because:
Sufficient counselling and support is available to eliminate such incidents. The company risks its reputation and future livelihood when such incidents occur.
As a result of the interview, it was agreed the following change should occur:
If employee is unsure on any issue he will consult with manager or state manager before acting. All matters dealt with must be completed to a satisfactory conclusion. The employee has been in position long enough for these occurrences not to occur so assistance and counselling will be provided but no long ‘learning curve’ is required and a major re-occurrence will not be acceptable.
A written warning will be issued and a copy placed on your personal file. Continuation of this conduct will lead to termination of your employment. Your conduct will be reviewed weekly to assess whether the change has occurred.
Signature of Manager conducting interview: Craig Law
Signature of witness to interview: Patrick Flannigan
I Brendan Cartmel acknowledge this to be an accurate account of the record of interview.
Signature of Employee being interviewed: B J Cartmel
It is noted that the copy of this Record of Interview given to the Applicant (Exhibit A8) had not at that stage been signed by Patrick Flannigan as a witness. However, the original of the Record of Interview, (Exhibit R 11) was signed by Flannigan and was retained by Law.
The attached warning read as follows:
“WRITTEN WARNING
Employee: Brendan Cartmel
Location: Engineering and Drafting Division, South Yarra
Date: 29 August 1994
This is to record that following discussion with Craig Law on 19 August 1994 for unsatisfactory performance and as a result of a disciplinary interview held on 29 August 1994 you are now being issued with a final warning for unsatisfactory performance to the standards explained to you and expected.
The company expects that there will be no further instances of unacceptable behaviour and poor performance by you.
Further instances of the types of unacceptable performance discussed (and documented) will result in the termination of your employment.
Your conduct will be reviewed weekly over the next 6 months.
This warning will be placed on your personal file.
Signed.
Craig Law
Victorian Operations Manager”
THE EVENTS OF 24 AND 25 NOVEMBER
On Friday 24 November the applicant was absent from his office at a seminar. On his return at about 4:30 pm he noticed that a number of the more current telephone inquiry order sheets on which he was working and on which he wanted to work that evening were missing from his desk and from the whiteboard near his desk. He was advised by another consultant, Eddie Pahany, that Law had taken the order sheets into his office. The applicant retrieved the order sheets and worked on them until about 6 pm when he and Pahany left for a company Christmas function for clients at the Power House Reception Centre on Albert Park Lake.
During the hearing the applicant gave evidence that during discussions outside Power House at about 11:30 pm Pahany had expressed concern that Law was too hard on consultants in general and too hard on him. He also claims that Pahany expressed concern about his future with the respondent company and that he (the applicant) advised Pahany of his own earlier retrenchment experiences with another company and he advised Pahany that in those circumstances an employee should never resign but should expect and require the employer to take responsibility for termination. The Court is not satisfied that the applicant expressed such views in opposition to resignation.
Pahany gave evidence of the discussion but he could not recall any reference by the applicant to the applicant’s retrenchment experiences or his opposition to resignation. Pahany gave evidence that the applicant was clearly dissatisfied with the demands and attitude of Law and that he had indicated to Pahany that he was considering telling Law to “stick his job up his arse”.
Quite early the next morning Saturday 25 November, at about 8:15 am, Law called the applicant into his office at South Yarra and directed the applicant to bring with him the telephone inquiry order forms retrieved the previous evening from Law’s office.
Law’s version of the discussion includes his sworn evidence that he went through all of the ten order forms which comprise Exhibits R1 to R10.
There is something of a conflict in the evidence of the applicant. Initially, in examination in chief, he indicated that only one or two order forms were discussed before Law threw all the order forms up in the air. In cross-examination he admitted that four order forms (Exhibits R1, R4, R5 and R6) were discussed. He cannot recall whether two other order forms (Exhibits R2 and R3) were discussed. He believes it is unlikely that one form (Exhibit R7) was discussed and he is adamant that three of the order forms (Exhibits R8, R9 and R10) were not discussed.
Given that he cannot recall whether three of the forms (Exhibits R2, R3 and R7) were discussed I find it hard to believe that the applicant can be so adamant that order forms (Exhibits R8, R9 and R10) were not discussed. It is my view that the ten order forms were all discussed. The Court notes that each order form was put specifically to both Law and the applicant and the Court prefers the evidence of Law on this aspect. The Court notes that the applicant has conceded that action which he claims to have taken on six of the order forms (Exhibits R1, R2, R4, R5, R6 and R10) was not recorded on the order forms. The applicant has claimed that in these cases he had supporting records either in a diary or on yellow stickers or on other notes or possibly in one or two cases he retained the action done or planned in his memory. The applicant did not produce any supporting documentation. He is unable to demonstrate by any record that he had taken the action or that he had action planned which was not recorded.
THE ENDING OF THE EMPLOYMENT
Again, Law and the applicant give different versions. The applicant states that after a short period of silence at the end of the interview he suggested to Law that he go back to his desk and that Law decide what he was going to do. The applicant stated that he said:
“my priority at the moment is to get on with business. I’ve got a lot of transactions that need to be completed by the end of business today”.
The applicant states that Law responded along the following lines:
“right now my priority is higher than your priority and you sit there”.
The applicant states that after another period of silence Law stated:
“that’s it, it’s finished”.
The applicant says he responded:
“what do you mean it’s finished? Do you want me to go back to my desk and start work?”
The applicant states that Law responded:
“no, that’s it, it’s finished.”
The applicant then says that he said:
“do you mean I’m finished?”
and that Law said:
“Yes”.
The applicant states that he then said:
“Craig, can’t we come to some other arrangement?”
He also claims that Law then responded:
“if you resigned that would be perfect”.
The applicant states that he did not respond to this and after a small silence he said:
“where do we go from here?”
and that Law said:
“you give me your pager and the keys to the front door and you leave”.
The applicant also says that he said:
“do you want me to stay on and work out another week to finish up the backlog, the work that I’ve got on my hands at the moment?”
Again he describes the response from Law as being:
“No. The company procedure is that you pack up and leave.”
The applicant stated that he got up, went back to his desk, got the pager and keys, gave them to Law, packed his desk, made two telephone calls unsuccessfully to Mr Flanagan and his wife from the board room and then left the offices of the respondent.
The applicant also gave evidence that after he left Law’s office and before he packed up his belongings he said to Eddie Pahany (possibly in the presence of Diana Acford):
“I’m out of here. I’m resigned”.
The applicant also gave evidence of a telephone conversation with the State Manager, Patrick Flanagan soon after he arrived home after he left the South Yarra offices. His evidence is as follows:
“I rang up Patrick Flanagan again. I got through to him this time. I said Craig and I have had discussions again this morning. He said, yes Craig tells me you have resigned. I said, well that’s not the case as far as I am concerned, I would like to come down and talk to you about it. He said, no you’re resigned. I said, well I’ll be taking legal action for unfair dismissal and he said, do whatever you think is appropriate.”
Law’s version of the final events can be best summarised with detailed extracts from pages 12, 13 and 14 of the transcript of the second day of the hearing on 23 March 1995.
“I said to Mr Cartmel that he had not been able to satisfactorily explain to me that any of these orders had been dealt with to the level that he understood and I understood. That I would give him the opportunity now to explain to me why there was so many outstanding orders that had not been dealt with to a satisfactory conclusion.
He sat silently. I also sat silently waiting for Mr Cartmel to explain to me the reasons that this had not been done.
Mr Cartmel then became a little bit agitated I think and said: We’ve been doing this for 45 minutes I haven’t got time for this shit, I’ve got work to do. I’m going back to my desk.
I said to Mr Cartmel that he had all the time in the world as far as I was concerned to sit here and discuss this matter because this was my number one priority, resolving these matters.
Mr Cartmel then said to me: Well, I guess - I guess it’s in your hands, or it’s over to you. The exact words I’m not too sure about. But it was - the statement was that it was completely up to me what happened next. It’s your move. I guess it’s your move then.
I started to explain to Mr Cartmel. I said: Well, the way I look at it we’ve been through a long process, a counselling process, a formal counselling process, informal assistance. I believe we’re coming to the end of that process.
Mr Cartmel then said to me: Well, if that’s the way you feel, I resign.
I said: Okay, I accept your resignation. Mr Cartmel then asked me if he - I would like one week’s or two week’s notice for him to work out. I then explained to Mr Cartmel that it is company procedure and policy that anybody in an operational role finishes immediately and I would arrange for him to be paid in lieu of notice.
We moved from my office into the operational area. Mr Cartmel started to pack up his desk. Eddie and he then caught each other’s attention. Brendan made the statement to Eddie “see you later mate, I’m going, I’ve resigned”. Mr Cartmel then packed up his desk. We walked out. He asked if he could make a couple of phone calls. I said “sure, no problem”. He went into the conference room, made his couple of phone calls, I waited for him in the hallway. He walked out with his briefcase, I shook his hand, he left.
Had you made any decisions towards the end of the interview about Mr Cartmel’s employment?---Yes, I had. I did feel that we were at that stage where we would have to terminate Mr Cartmel’s employment.
Now what would you have done if you had decided to terminate Mr Cartmel’s employment?---I would have told Mr Cartmel that the next stage of the process we would need to go and see Mr Flanagan at the South Melbourne office as we had done previously. The reason for that is because I would like to bring a bit of senior credibility to a process so important as termination. So, I would have taken Mr Cartmel with myself as we had done previously, across the South Melbourne office, met with Mr Flanagan, given Mr Cartmel again another opportunity to explain the outstanding issues and why it was acceptable that they had not been documented properly and clients had not been followed up. If that had not been the case that Mr Cartmel could have convinced Mr Flanagan and myself in that meeting that he had all of those things covered to a satisfactory completion, then we would - I would have terminated his employment with Mr Flanagan as a witness.
When somebody leaves our company in an operational role, history tells us and many, many employees have defected to direct competitors of ours, because of that we don’t want people working with our proprietary information. They have a lot in their heads already, but we don’t want them having access to our documentation and computer data base in a period when they know they are leaving the company in case they do go to a competitior in an operational role as well.
What confidence would you have in him to perform the work that he was previously performing?---I would have very little confidence based on the last discussion I had with him in the workplace.”
FINDINGS
The Court concludes that the applicant resigned and that Craig Law and Eddie Pahany have accurately reported statements to that effect by the applicant.
The Court does not accept that it is likely that the applicant said to Pahany “I’m resigned”. It is far more likely that he said, “I’ve resigned”.
If, as the applicant claims, he actually said to Pahany, “I’m resigned”, then the Court treats that as a statement by the applicant that he has indeed resigned.
Neither the applicant nor his Counsel ever explained what the applicant could have intended to convey by the words, “I’m resigned”, if they were actually uttered. The Court assumes it is claimed to be some sort of verbal shorthand for a termination at the initiative of the employer which is dressed up as if it were a resignation, a voluntary ending of the employment by the employee. Perhaps it is suggested the words, “I’m resigned” are a concise way of the applicant saying that the employer had forced a resignation on him, in effect a constructive dismissal. The Court does not accept the words used by the applicant were intended to convey an involuntary resignation, a constructive dismissal.
The Court has concluded that the applicant chose to end the employment himself by resignation faced by evidence of ten order forms which did not record adequate action and follow-up on his behalf, and confronted by a manager who had just indicated that he was coming to the end of a long counselling process which had to that date involved two written records of counselling interviews, a written warning and an interview with the State Manager.
This is consistent with his attitude and the way in which Eddie Pahany states the applicant expressed it outside Power House the previous evening. The Court places some weight on the fact that Pahany’s evidence is that the applicant had been obviously concerned that Law had taken order sheets from his work station earlier that day and had asked Pahany at least twice why Law had taken this action and had said on the second occasion, “I think I’ll tell Craig to stick his job up his arse”. On the other hand, such a statement might have been no more than bravado. Certainly, it would not have been sufficient evidence to lead to a conclusion that the applicant resigned. However, when that reported statement is considered in the light of the applicant’s evidence of the final interview, his admitted statement to Pahany just after that interview, Law’s evidence of the final interview and the applicant’s description of Patrick Flanagan’s response when telephoned by the applicant after the applicant arrived home after the end of the employment, the Court is reinforced in its conclusion that the applicant resigned.
The Court has considered the cases cited by both counsel but nothing in those cases suggests that the facts as found could constitute at law an unlawful termination of employment at the initiative of the employer. Indeed the Court takes the view that unequivocal words of resignation used by the employee in this case entitled the employer to accept the resignation and act accordingly. See Barclay v City of Glasgow District Council [1983] IRLR 313 at 314.
This is a case, in my view, in which one party to the contract is relieved from its future performance by the conduct of the other. The resignation amounted to a repudiation of the contract. This is not a case of a party alleged to have repudiated the contract in a state of severe depression Grout v Gunnedah Shire Council [1994] 125 ALR 355 at 370.
This is not a case of an immature employee or a decision taken in the heat of the moment or of an employee forced into a decision by employers (Barclay at 314).
This is not a case where the employee resigned because the employer had threatened that if he does not resign he will be dismissed. (Sheffield v Oxford Control Company Ltd [1979] IRLR 133 at 134.
On the other hand the Court accepts Law’s evidence that he would have taken steps to terminate the employment if the applicant had not resigned. The Court also accepts that there were valid grounds for termination. The Court accepts that a termination based on the earlier counselling, the two counselling interviews of 19 August and 29 August, the written warning of 29 August, and the final interview of 25 November, would not have constituted a termination devoid of procedural or substantive fairness and would not have been harsh, unjust or unreasonable.
The Court considers that the applicant was given ample opportunity to respond to allegations of inadequate action, inadequate follow-up and inadequate recording of action taken or planned. The applicant was not working in a sheltered environment. The applicant was working in a competitive, service oriented and time critical environment. The employer was entitled to expect quick and effective action and adequate recording of action taken or proposed.
However the Court records that the respondent’s detailed performance and discipline procedure should be either followed as written or amended to take account of the fact that personal files are (apparently) not kept on staff employees and to indicate where and in what manner records of counselling interviews are filed. Furthermore, as a matter of practice, employees should be advised of their rights under the policy to nominate a witness to the counselling interviews which constitute steps two and three of the policy. This advice should be given to the employee by an employer representative prior to the interviews.
ORDER
The application be dismissed.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 5 April 1995
Appearances:
Counsel for the Applicant : Peter Harris
Solicitor for the Applicant : Mason Sier Turnbull
Counsel for the Respondent : F Parry
Solicitor for the Respondent : G W P Aarons & Co
Date of Hearing : 22, 23 and 24 March 1995
Judgment : 5 April 1995
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