Brendan Charan v Meeples Pty Ltd ATF the Games Shop Trust T/A the Games Shop
[2018] FWC 2211
•30 APRIL 2018
| [2018] FWC 2211 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Brendan Charan
v
Meeples Pty Ltd ATF The Games Shop Trust T/A The Games Shop
(U2017/6876)
COMMISSIONER CRIBB | MELBOURNE, 30 APRIL 2018 |
Application for an unfair dismissal remedy - jurisdiction - termination at the initiative of the employer.
[1] Mr Brendan Charan (the Applicant) has made an application under section 394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The application is in relation to the alleged termination of his employment by Meeples Pty Ltd ATF The Games Shop T/A The Games Shop (the company, The Games Shop, the Respondent). The Respondent advised of a jurisdictional objection, on the grounds that the Applicant was not dismissed, on 5 July 2017.
[2] A determinative conference was held to deal with the Respondent’s objection on 31 January 2018. Neither the Applicant nor the Respondent were represented. Mr Charan and Mr M Pohlen, Owner of the Respondent, gave evidence in relation to whether or not Mr Charan had resigned and also in relation to whether or not the termination was harsh, unjust or unreasonable.
[3] This decision deals with the Respondent’s jurisdictional objection in the first instance. If required, the decision will then consider whether the dismissal was unfair.
Legislative framework
[4] Section 385 of the Fair Work Act 2009 (Cth) relevantly provides:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; … ”
[5] Section 386(1) of the Act sets out the meaning of dismissed as follows:
“(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[6] It was submitted by the company that it had not dismissed Mr Charan and that Mr Charan had resigned. On the other hand, Mr Charan contended that the company had dismissed him.
Background
[7] The relevant background to what subsequently occurred is as follows:
• Prior to 31 May 2017, The Games Shop and Games Laboratory (Games Lab) were jointly owned by Mr Pohlen (50%) and Mr Mackay-Scollay (50%). 1
• Mr Charan commenced working at the Games Lab in the week starting 22 January 2017 in a Retail Level 1, Sales Assistant position. 2
• On 3 April 2017, Mr Charan was transferred by Mr Mackay-Scollay from the Games Lab to The Games Shop. 3
• On 1 June 2017, Mr Pohlen took over full ownership and control of The Games Shop. 4
Evidence
[8] The key to determining the company’s jurisdictional objection is deciding what most probably occurred during conversations between Mr Charan and Mr Pohlen on Tuesday 6 June 2017 together with their conversation and subsequent emails the previous day (Monday 5 June 2017). Mr Charan and Mr Pohlen gave conflicting accounts of these conversations and other events.
Mr Pohlen
[9] Mr Pohlen filed a witness statement 5 together with supporting documentation6 and an outline of argument.7 Mr Pohlen also gave oral evidence that:
Conversation on 5 June 2017
• He had a meeting with Mr Charan around 10:30am. It was a brief/loose discussion about Mr Charan’s move from the Games Laboratory to The Games Shop in April. It was recalled that Mr Charan had explained that Mr Mackay-Scollay had asked Mr Charan to do him a favour by moving from the Games Laboratory to looking after The Games Shop for a little while. Mr Mackay-Scollay had then told Mr Charan a couple of weeks later that this was not it for him. 8
• He and Mr Charan had then talked about many things about the shop – a business conversation. 9
• He had then told Mr Charan that his hourly rate was too high and that it was well above the duties he was performing as a Retail employee Level III. Mr Pohlen also said that he believed that it was a malicious act by Mr Mackay-Scollay to cause him (Mr Pohlen) trouble. This was because he had had no knowledge of Mr Charan’s move to The Games Shop until afterwards and he had not any power to interfere at the time. Mr Charan said that he had thought that the wage would or wouldn’t last. 10
• He explained the reasons for reducing Mr Charan’s pay from $30 an hour to $22 an hour ($1.70 above the award rate). This was because the duties that Mr Charan was performing were the same as for the other three staff and he wanted equity and fairness between employees. 11
• He had told Mr Charan that he could continue at $22 an hour which was the same as the other staff and that, if he wanted to, he could step up to being manager. This would gradually increase his wage over the next four – six months as he grew more experienced in the business. 12
• However, Mr Pohlen recalled telling Mr Charan that he was unlikely to achieve $60,000 as it was a small role in a small shop. 13 The only thing that couldn’t carry on was Mr Charan’s remuneration at $30 per hour as it was too high.14
• Mr Charan turned down the opportunity to step up to being a manager and said that he did not want to stay in retail and that he could easily get himself another job. 15Mr Charan had also said that he didn’t want to commit to being the manager for low compensation when he could get a better role elsewhere.16
• He recalled responding that that was fine but that he would like to keep him on because he was doing 40 hours a week of the shop’s work. Mr Pohlen recalled being relieved that Mr Charan was staying. 17
• Mr Pohlen stated that he offered Mr Charan some weekend work, if the other two employees agreed, so that he could get the higher weekend rates. Mr Charan then said that he did not want to rock the boat. 18
• The conversation finished with agreement that Mr Charan would accept the rate of $22 per hour and that he would stay for an indefinite amount of time while he looked for a new role. 19
• The outcome of the conversation was that Mr Charan was happy to continue at The Games Shop until he found alternative employment. Mr Pohlen stated that he was happy for Mr Charan to stay at The Games Shop until Mr Charan found alternative employment. It was stated that Mr Charan himself put a timeline of two or three months on how long it would take until he found another job. Mr Pohlen said that he did not put any boundaries on how long Mr Charan continued in his current role. 20
• He believed that he and Mr Charan came to an agreement which was acceptance (Mr Charan was happy) of the changed conditions of his employment regarding remuneration. 21
• He did not take it as a resignation but as an agreement between himself and Mr Charan that Mr Charan would stay until he found another job and that he would give Mr Pohlen a reasonable period of notice. 22 Mr Pohlen said that he knew that, at some point in the future, he would need to find a replacement for Mr Charan.23
• He was looking for business as usual and had no intention to terminate any of the employees or to change their work. 24
Email exchange on 5 June 2017
• When he did the staff pay run he was not thinking clearly. He had already changed Mr Charan’s rate from $30 to $22 per hour. Mr Charan emailed after receiving his payslip and reminded him that, as discussed that morning, the new rate was going forward and was not to be backdated. 25
Conversation on Tuesday 6 June 2017
Conversation in the morning
• When he came in early to drop off stock, Mr Charan asked if they could have a meeting. Mr Pohlen told Mr Charan that he would come back at 2.00pm and they could then have a discussion. 26
Conversation in the afternoon – first one
• When he returned to the shop at 2.00pm, he and Mr Charan walked down the arcade talking as they walked. Mr Pohlen recalled that Mr Charan told him that he was unhappy and that he wanted to renegotiate his hourly rate back to closer to where it was or that he needed to let Mr Charan walk. 27
• At this point, they were at the end of the arcade and standing on Little Collins Street. Mr Pohlen recalled that he told Mr Charan that he wasn’t going to get his pay increased and that it was correct for his role as a Retail employee Level III. Mr Pohlen had also said that it was above the award and that it was the same as the others. 28
• Mr Charan had then threatened him by saying that Mr Pohlen needed the employees more than they needed him. Mr Pohlen recalled restating to Mr Charan that he was not going to get the higher rate. Mr Charan had responded that he had to give him the higher rate or he had to let him go. 29
• Mr Pohlen indicated that he had not understood what Mr Charan was saying but said that Mr Charan kept repeating that statement. Mr Pohlen explained that he kept on saying that he was not going to give Mr Charan a higher hourly rate and had restated the agreement that they had come to earlier that Mr Charan could stay in employment, that Mr Pohlen was not terminating him; that he could continue with their agreement until he found another job but that he was not going to get a pay increase. 30
• Mr Charan took this as an insult and stated that he had no issues with leaving right away as he would easily find a new job. Mr Charan had then said that, if Mr Pohlen didn’t agree to the hourly rate, he would be leaving right away. Mr Pohlen explained that he took this to be Mr Charan saying that he was quitting. 31
• Mr Charan kept on repeating consistently that Mr Pohlen had said to him “I’m sorry Brendan, I’m going to have to let you go” (Mr Charan’s ‘magic words’). Mr Pohlen did not recall saying those words. 32 He stated that, if Mr Charan had told him that those words meant that Mr Pohlen was terminating Mr Charan, he would have refused to agree.33
• Mr Pohlen thought that he had said to Mr Charan (but he did not have a clear recollection) that “(can) let you go”. Mr Pohlen explained that, in his mind when he said “let you go”, he was saying that he could not stop Mr Charan from quitting on the basis that if Mr Charan was choosing to walk out on him because he would not increase Mr Charan’s pay then that was what Mr Charan was choosing to do and there was nothing that he (Mr Pohlen) could do about it. 34 Mr Pohlen stated that he never used any words like terminated, fired, dismissed or sacked.35
• Once the ‘magic words’ had been said, Mr Charan said something like okay and started walking back to the shop. Mr Pohlen had followed Mr Charan a couple of yards behind. By the time he had reached the shop, Mr Charan was getting his bag and coat from behind the counter. Mr Pohlen realised then that he needed to get the store key as it was 100% clear that Mr Charan was walking out on him. 36 There had been no significant conversation on the way back to the shop.37
Conversation in the afternoon – second
• By pure coincidence, both he and Mr Charan walked out of the arcade together. Mr Charan then asked him what his entitlements were given that he (Mr Pohlen) had just terminated him. Mr Pohlen recalled being shocked and said that he had not terminated Mr Charan and that Mr Charan had just quit and had just walked out on him. Mr Charan responded by saying that Mr Pohlen had terminated him. 38
• He replied that he had not terminated Mr Charan and suggested that Mr Charan take the rest of the day off as sick leave – like a mental health break. Mr Charan was said to have been insulted by this and said that Mr Pohlen was now trying to say that he was mentally ill. Mr Pohlen recalled saying no, take it as annual leave and then we’ll sort it out. 39
• It was recalled that Mr Charan said again that Mr Pohlen had terminated him and Mr Charan stuck to his guns. Mr Charan was said to be extremely pleased to be terminated and did not want to be un-terminated. It was Mr Pohlen’s evidence that he did all he could and that he repeatedly stated that he had not terminated Mr Charan; that his job still existed and that he could either take sick leave or annual leave to think about their discussion. Mr Charan had insisted that Mr Pohlen had terminated him and refused to continue in employment. 40
• It was obvious/became clear that he and Mr Charan had a difference of opinion about whether Mr Charan had resigned or whether he had been terminated by Mr Pohlen. 41
• He continued to offer Mr Charan continued employment and suggested that Mr Charan take the afternoon off as sick leave or annual leave and think about things. Mr Pohlen did not consider that he had terminated Mr Charan. 42
• He had offered Mr Charan a mental health day because, up until that point, he believed that Mr Charan had quit and was walking out on him mid shift. Then Mr Charan had turned it around on him and said that he had terminated him. 43
• He did not have a clear recollection of whether he had asked Mr Charan why he thought he had been fired nor Mr Charan saying in response - “because Matt, you said I’m sorry Brendan I’m going to have to let you go”. Mr Pohlen’s clear recollection was him stating that Mr Charan had quit and that there was some confusion. 44
• Mr Charan refused the offer because he believed that he had been terminated and he stuck to that belief despite being told that he still had work. 45
• It was recalled by Mr Pohlen that he suddenly realised that Mr Charan was trying to put him on the hook for a termination. This was because, in the same sentence, Mr Charan said to him that now that he had terminated him, what was he going to give him. Mr Pohlen then realised that Mr Charan was looking for another way to get money out of him and that he had been railroaded and that he was being told something that he had not done. 46
• That was the reason he had reflectively said straight away that he had not terminated Mr Charan and that Mr Charan had quit. Mr Pohlen explained that this was a knee-jerk reaction because he had never had any intention of terminating Mr Charan. 47
• This was the first time that they had talked about ‘termination’ and it was the very first time that it occurred to him that Mr Charan believed that Mr Pohlen had terminated him. Mr Pohlen stated that, if Mr Charan had raised the fact that he believed that he was terminated on the way back from Little Collins Street to the shop, they would have had that conversation then because it was completely opposite to what he thought had just happened. 48
• As soon as Mr Charan had asked about what they were to do now that Mr Pohlen had terminated him, they had the termination conversation. Mr Pohlen stated that, at that point, he thought that Mr Charan believed that he was terminated. 49
• Mr Charan did not use the words resign or quit but had made repeated statements that if he did not get the money he wanted, he was leaving and leaving immediately. 50
• In his contemporaneous notes regarding Tuesday 6 June 2017, he had recorded that he and Mr Charan had agreed that they would endeavour to work out what was fair as a final payment/settlement. 51 This was because he had offered to Mr Charan that he take sick or annual leave and that he could come to work the next day. It was obvious that Mr Charan had disagreed with this and that Mr Charan was going to talk to a fair work lawyer and that Mr Charan would send him an email that night. As they were at complete loggerheads about whether Mr Charan had been terminated or whether he had resigned, he was happy to agree with a fair assessment.52
• It was his view in hindsight that Mr Charan came to that meeting looking for either a higher rate of pay or a termination because he did not want to resign. Mr Charan wanted a termination so that he could make a claim for financial gain. 53
• He had absolutely no intention of dismissing or terminating Mr Charan’s employment on that day. 54
• He did not ask for a meeting on the Tuesday and so did not have an agenda for the meeting. 55
• It was his full and firm belief that Mr Charan walked out on his position at the end of the meeting. There was nothing that he (Mr Pohlen) had said that implicated him in terminating Mr Charan’s employment. 56
• He made several offers, during the meeting, for Mr Charan to continue in his role but they were refused. 57
• He had repeated what had been agreed on the Monday – that Mr Charan would stay, at the reduced remuneration, until he found another position. 58
• He made notes of the conversations that afternoon immediately on returning home after the school pick up. Mr Pohlen had used the notes to write the various emails and provide his evidence. 59
Subsequent email exchange and events
• Mr Charan did not turn up for work on Wednesday 7 June, Thursday 8 June or Friday 9 June 2017. On Thursday 8 June 2017, Mr Charan emailed him saying that he considered himself terminated. 60
• He knew at that point that he and Mr Charan had a conflict about what had happened and that he (Mr Pohlen) was opening the shop on Wednesday and Thursday. When he had invited Mr Charan to turn up to work on Wednesday, it would have been with himself (Mr Pohlen) opening the shop and that was why he did not see the key as an issue. 61
• There was still some expectation in his mind that Mr Charan would attend work. This was because he was keeping the options open so that, if Mr Charan had come back the next day (there was a 10% chance) and changed his mind, they could have a further discussion. 62
• On Monday, 12 June 2017, as he needed to do the pay run, he paid Mr Charan for the exact hours he had worked (at $22 per hour) together with his outstanding annual leave. This was on the basis that he did not believe that he could claim compensation from Mr Charan or dock his wages. 63
• Mr Charan emailed on Monday 12 June 2017 disputing his pay. 64 In the ensuing email train, Mr Charan made several attempts to subvert/entrap him into saying certain phrases that he simply had not stated.65
Mr Charan
[10] Mr Charan filed two sets of submissions (objections 66 and merits67) together with a witness statement.68 It was Mr Charan’s oral evidence that:
February 2017
• In early February 2017, he and Mr Mackay-Scollay had a conversation about him stepping into Mr Lockheart’s role at The Games Shop because Mr Lockheart would not work with Mr Pohlen and there was an imminent breakup of the business. Mr Charan recalled that he said that he wouldn’t be interested because he had dealt with Mr Pohlen before and knew that there were problems. 69
• Mr Mackay-Scollay offered him a managerial position and talked to him about an increase in remuneration. Mr Charan recalled that there was an understanding that he needed to have a certain amount of annual income over a certain period of years to apply for permanent residency. It was stated that the conversation ended with a situation that he did not want to step in to at that time. 70
• A few weeks later, Mr Mackay-Scollay asked him to step into Mr Lockheart’s position whilst Mr Lockheart was on leave for a week. Mr Charan agreed to on the basis that he would be doing Mr Mackay-Scollay a favour. Mr Mackay-Scollay told him that he would be paid the same rate as Mr Lockheart. 71
• After he had been rostered at The Games Shop for 2 weeks, he spoke to Mr Mackay-Scollay about it and was advised that Mr Lockheart was now at The Games Lab. As he had received an increase in pay, he decided that he would stay at The Games Shop. 72
• Mr Charan explained that, in his position at The Games Shop, he was also doing aspects of the managerial role such as ordering stock, rostering etc. However, he was not allowed to do everything that Mr Lockheart had done due to the nature of the break up in business. 73
Wednesday 31 May 2017
• Mr Pohlen had a meeting with staff and explained that he was formally taking over during the weekend. There was a discussion about going forward which included what he had been doing. Mr Charan stated that all of the other staff knew that he was put in as a manager but that he was not able to fully implement that because of problems arising out of the business breakup. 74
Monday 5 June 2017
• It was clear that, in Mr Pohlen taking over the business, Mr Pohlen was also taking over the position of manager. 75
• He and Mr Pohlen had a not unexpected conversation regarding a decrease in his pay. Mr Charan confirmed telling Mr Pohlen that he was not surprised that they were having this conversation as he knew that Mr Pohlen did not want to pay that rate going forward and that Mr Pohlen would try and reduce his pay and put him into the position of Retail level III. Mr Charan’s view was based on an assumption rather than a direct discussion with Mr Pohlen 76
• Mr Charan confirmed that Mr Pohlen told him that he would get paid $22 per hour moving forward. 77 Mr Pohlen had also told him that he was changing Mr Charan’s position.78
• During the conversation, he said to Mr Pohlen that he had fully expected it to happen and that he would definitely have to look for a new job if that was the pay rate he was going to be getting. 79
• Mr Charan recalled that he had told Mr Pohlen that he would not be happy at the reduced rate. Mr Charan stated that he did not agree to any change in anything. 80
• Mr Charan indicated that he had told Mr Pohlen what had happened with Mr Mackay-Scollay and explained where things were at now and that he understood where Mr Pohlen was coming from.
• He agreed that Mr Pohlen had offered that he could step up to a management role in the medium term and that he had replied that he was not interested. Mr Charan confirmed that he had said to Mr Pohlen that he could easily go and do an office job on $60K to $65K instead. 81
• He denied telling Mr Pohlen that he accepted the new hourly rate of $22 per hour but that said that he had agreed that he would not take on any extra duties and would do what was required for the role. Mr Charan also denied saying that he would be looking for a new job elsewhere and would likely be gone in two to three months. Mr Charan expressed the view that this was what Mr Pohlen thought had happened but that it was not what had happened. 82
• He believed that Mr Pohlen had said to him that he could stay on and continue to look for work. Mr Charan had replied that, if he was to stay on, he would definitely be looking for work because he needed a certain amount of money. However, he did not say that he was agreeing to anything or staying on. 83
• He could not 100% say that he had mentioned his mother and that she had been a career consultant. However, it was likely that he would have mentioned his mum if he had been talking about looking for a new job. 84
Email exchange on 5 June 2017
• When his payslip was incorrect, he emailed Mr Pohlen and said that their conversation was about the pay rate going forward. Mr Charan stated that he did not say that he agreed to the pay rate – just that he had paid him the wrong pay rate as it was what we had agreed moving forward. 85
• There was no indication in these emails of him having accepted or not accepted the new pay rate. This was because he had already decided that he was unhappy with the pay rate and wanted to have another conversation with Mr Pohlen the next day. 86
• Mr Charan stated that he had already had a conversation with another staff member about being unhappy and talking to Mr Pohlen further. 87
• He definitely did not agree to being demoted from store manager to retail employee or to a change in his pay. Mr Charan explained that he agreed that Mr Pohlen wanted it to happen but stated that he had not said that he was going to move forward doing the position at that pay rate. Mr Charan did not believe that he could be demoted without any sort of formal change of position and indicated that he had not signed anything saying that he had agreed to the change or verbally agreed. 88
• Mr Pohlen had said that he was lowering his pay and also lowering his position because Mr Pohlen believed that he was only doing Retail level III work and that Mr Charan was not managing. 89
• It was not his intent in the email to say that he had agreed. He had simply been saying that he was working at the old rate and expected to be paid at that rate for this pay. 90
Tuesday, 6 June 2017
Conversation in the morning
• When Mr Pohlen came in at approximately 10.00am to drop off some stock, he had told Mr Pohlen that they needed to have a conversation. It was agreed they would meet sometime in the afternoon. 91
Conversation in the afternoon – first
• When Mr Pohlen returned, they went down to the end of the arcade and he told Mr Pohlen that he was not happy with his pay reduction and that he could not just change his pay rate when he already had an agreement with Mr Mackay-Scollay and he had previously been paid that. Mr Charan told Mr Pohlen that he had accepted the job on this basis and so had an agreement with the company regardless of who managed it. 92
• Further, Mr Charan recalled that he told Mr Pohlen that Mr Pohlen had two options. These were that Mr Pohlen could renegotiate to pay him something different but in the same managerial role or to let him go (as in Mr Pohlen had the option to fire him). 93
• After two minutes of objections and discussions, Mr Pohlen said that he was sorry, he was going to have to let him go. Mr Charan stated that he accepted this as a verbal termination and asked Mr Pohlen when he wanted him to leave. 94
• Mr Pohlen replied that he wanted him to leave for the day. Mr Charan recalled that he had then asked for something in writing to confirm that Mr Pohlen had fired him and that it was to include severance etc. Mr Charan indicated that Mr Pohlen was a little bit standoffish about what he was going to do. Mr Charan stated that he asked if he could go back to the store and get his things which Mr Pohlen agreed to. 95
• Mr Charan confirmed that Mr Pohlen had repeated his offer for him to stay at the current rate and that he had turned it down. Mr Charan explained that he had turned it down because Mr Pohlen was asking him to do the same job (which wasn’t the job that he had agreed to) and was effectively asking him to take a pay cut. Mr Charan stated that Mr Pohlen wanted to demote him – lower the position (his responsibilities and job role) and pay him less money (by a third). 96
• On the way back to the store he may not have said “termination”, and may have said “fired” but it was definitely one of those two words. Mr Charan stated that they were definitely talking about him being let go because he had specifically asked Mr Pohlen to give that to him in writing. They were also discussing severance and how it worked. It was recalled that Mr Pohlen had said that he didn’t 100% know how this worked. Mr Charan explained that this was the reason that they exited the store together to continue to talk about this. 97
• When he got back to the store, he told the staff member there that he had been let go and grabbed his bag from behind the counter. Mr Pohlen asked him to hand over his key which he did. 98
Conversation in the afternoon - second
• It was not a case that they both left the store at the same time and just happened to be going in the same direction. Rather, Mr Charan explained that he had wanted to continue the conversation regarding formal written advice about what had happened. 99
• As they walked out of the arcade, Mr Pohlen did a 180 degree turn. This was because Mr Pohlen said that he had not fired him but that Mr Charan had quit. Mr Charan recalled responding adamantly that he had not quit. Mr Pohlen had then offered that Mr Charan take the rest of the day off as a holiday pay then as sick pay and then as a mental health day. Mr Charan had said quite clearly no and that he did not want this linked in any way to mental health. 100
• Mr Pohlen was clearly flustered and said to him that he should be calling Fair Work. Mr Charan stated that there was a lot of back-and-forth with Mr Pohlen asking why he thought that Mr Pohlen had fired him. Mr Charan recalled that his response was because he (Mr Pohlen) had said to him that he was sorry, he was going to have to let him go. Mr Pohlen then said that Mr Charan had tricked him and that he did not mean to the fire him when he said the words “I’m sorry Brendan, I’m going to have to let you go”. Mr Charan responded by saying that Mr Pohlen had clearly just terminated him and had taken his key off him. 101
• When it was clear that he and Mr Pohlen disagreed about whether it was a termination or a resignation, he had insisted that it was a termination on the basis that Mr Pohlen had verbally fired him by saying the ‘magic words’. 102
• Mr Pohlen had said that Mr Charan had not been fired and that Mr Charan had just quit. Mr Pohlen had said that Mr Charan was no longer working there because he had just quit. Mr Charan recalled saying to Mr Pohlen that he had not quit (either verbally or in writing) and that Mr Pohlen had just fired him. 103 Mr Charan agreed that there was confusion about what had happened.104
• He and Mr Pohlen then agreed that Mr Charan could finish the day early because this was going around in circles and Mr Pohlen had to go and get his car. Mr Charan explained that he then said that was fine but that he had not quit. Mr Pohlen asked if he was going to be in tomorrow which threw him because Mr Pohlen had just taken his key away. This was an indication to him that he was no longer working there and that’s when he felt that it was all over. They agreed that they were going to leave it where it was and go and speak to their respective experts. Mr Charan replied that he would go home and let him know more tomorrow. 105
• Mr Charan denied that he was still employed at this point because this was not the impression that he had. Rather, it was that it was finished because they agreed to disagree and broke off over the question of severance and what was the process. Mr Charan recalled that it was not a sense of him saying Mr Pohlen had fired him and Mr Pohlen saying that he hadn’t fired him and that Mr Charan still worked for him. Rather, it was agreed that Mr Charan would finish work for the day. Mr Charan said to Mr Pohlen that he would call the Ombudsman or he might have said Fair Work lawyer and that Mr Pohlen had said that he (Mr Pohlen) would have to call whoever he had to call. 106
• He went back to the store and said to the staff member there that he was going home now. 107
• He wrote down the conversation that he had with Mr Pohlen around 4.00pm/4.30pm that day. 108
• He was still adamant that a termination happened and said that he had stuck to his position the whole time and had never changed it. There were some aspects of a forced resignation because of the demotion of his position. 109
Subsequent email exchange and events
• He didn’t get back to Mr Pohlen until the Wednesday.
• He contacted the Ombudsman and had a conversation with them. The person he spoke to advised that he needed to try and establish the firing event which was the reason he sent the email asking Mr Pohlen to clarify that he had been terminated and the events of the day. 110
• He did not receive anything back from Mr Pohlen until the following week when he was paid out. Mr Charan recalled responding that he was still waiting for Mr Pohlen’s response. 111
Submissions
The Company
[11] Mr Pohlen submitted that, on Tuesday 6 June 2017, he had no intention of dismissing or terminating Mr Charan’s employment. Rather, he believed that he and Mr Charan had come to an agreement the day before, which was contained in Mr Charan’s email, that Mr Charan accepted the changed conditions of his employment and remuneration. Further, Mr Pohlen argued that he had not asked for a meeting on 6 June 2017 and therefore had no agenda for that meeting. Mr Pohlen stated that it was his firm belief that Mr Charan had walked out of his position at the end of the first meeting and that he had made several offers during the meeting for Mr Charan to continue in his role but these were refused. It was explained that he had repeated the agreement reached on Monday that Mr Charan could stay at the reduced rate until he found another position. 112
[12] With respect to the second conversation on Tuesday 6 June 2017, on leaving the shop, Mr Pohlen recalled that he and Mr Charan had a short discussion where it was obvious that they had a difference of opinion about whether Mr Charan had resigned or had been terminated. It was stated that he had continued to offer Mr Charan continued employment. Mr Pohlen explained that he had suggested that Mr Charan take the afternoon as sick leave or annual leave and that he was clear that he did not consider that Mr Charan had been terminated. Mr Pohlen contended that Mr Charan refused because he believed that he had been terminated and recalled that Mr Charan stuck to that belief despite Mr Pohlen avowing to Mr Charan that he still had work. 113 It was stated that it was a confusing conversation and there was a certain lack of clarity by both parties. However, Mr Pohlen had indicated to Mr Charan that he would see him the next morning. This was said to be because he had no intention of dismissing Mr Charan. It was Mr Pohlen’s belief that Mr Charan had organised the meeting on 6 June 2017 because he was unhappy with his previous treatment by the Group and that Mr Charan had an agenda to either regain his overpayment and/or force the issue.114
Mr Charan
[13] Mr Charan submitted that he was still adamant that a verbal termination had taken place and that Mr Pohlen had then backtracked to make it look like he had resigned. In the alternative, Mr Charan argued that there were some aspects of a forced resignation because of a demotion of position. A number of authorities were provided and were gone through by Mr Charan in support of this contention. Mr Charan stated that there were special circumstances. 115 Mr Charan argued that the onus of proof was on Mr Pohlen to have established with Mr Charan that he had not dismissed him. It was stated that Mr Pohlen had not done this with the result that Mr Charan was therefore considered terminated.116
[14] It was explained by Mr Charan that it was very clear in his mind that Mr Mackay-Scollay was offering him a managerial position at The Games Shop because they had discussed pay rates in relation to his future requirements regarding obtaining permanent residency. 117
[15] It was argued by Mr Charan that he had not signed anything to say that he had agreed to the change in his hourly rate and his duties. It was Mr Charan’s contention that, at the meeting on 5 June 2017 he had agreed that Mr Pohlen had wanted that to happen but that he had not agreed that he was going to move forward doing the position at that pay rate. 118 Mr Charan argued that it was not the intention of the email that he had sent to Mr Pohlen on the afternoon of 5 June 2017, to say that he agreed with the new pay rate or his demotion.119 This was because he had already decided that he wanted to talk further to Mr Pohlen about this the next day.120
Considerations and Conclusions
[16] In this matter, the Commission has to be satisfied that the dismissal of the Applicant was at the initiative of the employer (section 386(1)).
[17] It can be seen from the evidence set out in the paragraphs above that there was an amount of conflicting evidence between Mr Pohlen and Mr Charan as to the facts of what happened at a number of points in time. In order to make a decision about whether there was a dismissal at the initiative of the employer, the Commission is required to make findings of fact about what probably occurred.
[18] The employer has submitted that there was no dismissal at the initiative of the employer and that Mr Pohlen did not dismiss Mr Charan during either of their two conversations on the afternoon of Tuesday, 6 June 2017. Rather, it was stated that Mr Charan had quit and was walking out mid shift.
[19] On the other hand, the Applicant has submitted that his employment was terminated by Mr Pohlen on two grounds. The first ground was that Mr Charan was verbally dismissed by Mr Pohlen, on 6 June 2017, when he said the words to Mr Charan “Sorry Brendan, I’m going to have to let you go”. The second ground was that, by Mr Pohlen unilaterally reducing his pay and by demoting him from manager to retail employee, Mr Pohlen had terminated his employment. This was as the result of the repudiation, by Mr Pohlen, of the agreement between Mr Mackay-Scollay and Mr Charan that Mr Charan was to be manager at The Games Shop at the rate of $30 an hour.
[20] In the alternative, Mr Charan argued that, if he did resign, it was because he was forced to resign (constructive dismissal). Mr Charan’s primary argument was that he did not resign.
[21] I will consider the events that occurred on 5 and 6 June 2017 and make relevant findings of fact.
Conversation on Monday, 5 June 2017
[22] Mr Pohlen and Mr Charan had a conversation on the morning of 5 June 2017 in a coffee shop. It was common ground that, during the conversation:
• There was a discussion about what had happened with Mr Charan in relation to Mr Mackay-Scollay. Mr Charan explained to Mr Pohlen what had occurred with Mr Mackay-Scollay regarding Mr Charan’s move to The Games Shop.
• Mr Pohlen told Mr Charan that he would get paid $22 an hour going forward.
• It was agreed that Mr Charan would not take on any extra duties.
• Mr Charan told Mr Pohlen that he was not surprised they were having this conversation.
• Mr Charan told Mr Pohlen that he would have to look for a new job.
• There was discussion about Mr Charan staying on whilst he looked for other work/got another job. The context in which this was said is disputed.
• Mr Pohlen made an offer to Mr Charan that he could step up to a management role in the medium-term. Mr Charan rejected this offer.
Emails on Monday, 5 June 2017
[23] The email exchange between Mr Pohlen and Mr Charan, on the afternoon of 5 June 2017, was initiated by Mr Pohlen when he emailed all of the staff advising that he had sent out the payslips and that he was happy to discuss their contents. 121
[24] Mr Charan responded as follows:
“I still worked at old rate last week and expect to be paid at that rate for this paye [sic]. The talk we had this morning was going forward from today, not backdated for the last week. Is this going to be fixed?” 122
Findings of fact
Conversation on 5 June 2017
Hourly rate
[25] It was common ground that, during the conversation on 5 June 2017, Mr Pohlen advised Mr Charan that his hourly rate was to be reduced and that the change in Mr Charan’s pay would occur in his next pay (going forward).
[26] The disputed aspect of this conversation was whether or not Mr Charan had accepted the change. Taking into account the undisputed aspects of the conversation, together with the email exchange later in the day, I find that it is probable, on balance, that there was an acceptance of the new hourly rate by Mr Charan. This is on the basis that it is probable that the discussion about Mr Charan having to look for another job and staying on while he did that (which was agreed had occurred) was the result of Mr Charan’s acceptance that his hourly rate was going to be reduced. Further, it was also common ground that there was an agreement that Mr Charan would not take on any extra duties. It is likely that this was agreed as a result of Mr Charan’s acceptance of the reduced hourly rate. Therefore, I find that the outcome of the conversation was acceptance by Mr Charan that his hourly rate was to reduce and that he would be looking for another job but would remain working at The Games Shop until he found another job.
[27] In addition, I am of the view that Mr Charan’s email to Mr Pohlen about the incorrect hourly rate on his payslip, on 5 June 2017, indicated that, during the talk that morning, there was acceptance by Mr Charan that his hourly rate was to change.
Demotion from manager to retail employee
[28] With respect to whether or not Mr Charan was demoted from the position of manager to retail employee, there was no agreement between the parties that this had occurred. It was Mr Pohlen’s view that, at the time he took over full ownership of the business, Mr Charan was not performing the role of manager and that his duties were the same as the other three staff.
[29] Mr Charan, on the other hand, argued that he had been appointed the manager by Mr Mackay-Scollay and Mr Charan provided a letter from Mr Mackay-Scollay to support this contention. 123 Mr Charan also gave evidence that he was unable to fulfil all of the duties of a manager due to the business breakup. However, Mr Charan said that he did what he was allowed to do which included ordering stock (towards the end), organising staff and rostering. Mr Charan acknowledged that he had been working closely with another employee who had experience in the store (how it ran and all the suppliers).
[30] The letter from Mr Mackay-Scollay, which was provided by Mr Charan as evidence of the agreement reached with Mr Mackay-Scollay, stated that Mr Mackay-Scollay had discussed with Mr Charan transferring to a more senior position at The Games Shop. The letter indicated that the position at The Games Shop would be more involved and include higher duties such as ordering, marketing, rostering, banking etc. It was explained that the high duties should attract a higher rate of pay and that the offer of $30 per hour also included a “sweetener”. In addition, in the letter, Mr Mackay-Scollay advised that Mr Charan had undertaken the duties expected of him during April/ May 2017. 124
[31] In weighing up all of the evidence before me, I do not consider that Mr Charan was demoted from a manager’s role to that of a retail employee. Firstly, it would seem that the role that Mr Charan was transferred to at The Games Shop, was not that of store manager. As set out in the paragraph above, the letter from Mr Mackay-Scollay does not corroborate Mr Charan’s contention that he was transferred to the position of store manager at The Games Shop. It is noted that Mr Mackay-Scollay’s letter was not in the form of an affidavit and Mr Mackay-Scollay was not called as a witness by Mr Charan. However, the letter formed part of Mr Charan’s evidentiary material in support of his contention that he was appointed a manager and that Mr Pohlen had therefore demoted him on 5 June 2018.
[32] Secondly, it was Mr Charan’s evidence that he was not undertaking all of the aspects of a store manager’s role due to the business break up and that he was reliant on the knowledge and experience of another employee in regard to how the store ran.
[33] Taking all of this into account, I find, on balance, that it is probable that Mr Charan was not transferred to the position of store manager and that, in any event, Mr Charan was not undertaking all of the duties of a store manager. It is probable that Mr Charan was undertaking some duties which were in addition (higher duties) to the role of a retail employee. It is likely that these were rostering and limited stock ordering. However, I have formed the view that the higher duties were not so extensive as to amount to Mr Charan performing the role of store manager. Therefore, it cannot be said that Mr Charan was demoted from the position of store manager to that of retail employee. Rather, it is probable that the change was a reduction in the number of duties that Mr Charan was required to perform, namely, some of the higher (additional) duties. This constituted a change to some of Mr Charan’s duties rather than a wholesale change in Mr Charan’s position. Therefore, I am not satisfied that Mr Charan was demoted by Mr Pohlen.
[34] With respect to whether or not Mr Charan accepted the change in his duties, I find that it is probable that there was acceptance by Mr Charan of the change to his duties on 5 June 2017. It was common ground that, during the conversation between Mr Pohlen and Mr Charan on Monday 5 June 2017, there was agreement that Mr Charan would not do any extra duties. That implies, in my view, that there was acceptance by Mr Charan that he would no longer be doing the higher (additional) duties referred to in Mr Mackay-Scollay’s letter.
Conversations on Tuesday 6 June 2017
First conversation
[35] The first conversation occurred when Mr Pohlen returned to the shop around 1.30pm/1.45pm and he and Mr Charan walked down the arcade. It was undisputed that, during this conversation, the following took place:
• Mr Charan told Mr Pohlen that he was unhappy with the reduction in his hourly rate and wanted to either renegotiate his rate or that Mr Pohlen needed to let him (Mr Charan) walk.
• Mr Pohlen repeated the offer for Mr Charan to stay at the reduced hourly rate.
[36] What occurred after that is hotly contested by Mr Charan and Mr Pohlen. It is alleged by Mr Charan that Mr Pohlen said to him “I’m sorry Brendan. I’m going to have to let you go”. Mr Charan recorded this in his contemporaneous notes of the conversation. 125 This phrase does not appear in Mr Pohlen’s contemporaneous record of the conversation.126 During the determinative conference, it was stated by Mr Pohlen that he did not have a clear recollection of saying those words but thought that he had said that “(can) let you go”. Mr Pohlen contended that he was not dismissing Mr Charan but saying that he could not stop Mr Charan from quitting because he (Mr Pohlen) would not increase Mr Charan’s pay. It seemed to Mr Pohlen that Mr Charan was choosing to leave (quitting).
[37] Mr Charan’s perspective was that, in Mr Pohlen saying “I’m sorry Brendan. I’m going to have to let you go”, Mr Pohlen had just terminated his employment. This was said to have been confirmed in his mind by Mr Pohlen asking for his key when they returned to the shop.
[38] Taking all of this into account, I find that it is probable, on balance, that Mr Pohlen did not dismiss Mr Charan during this conversation. Mr Pohlen gave evidence that he could not recall saying the words alleged by Mr Charan. Mr Pohlen did concede that he had said something like“(can) let you go” to Mr Charan. It was Mr Pohlen’s explanation that, when he said those words, he was saying that Mr Pohlen could not prevent Mr Charan from leaving mid shift which is what he thought was happening. It was common ground that, during the conversation, Mr Pohlen said that Mr Charan could stay, albeit on the lower rate.
[39] If necessary, I also find that it is probable that Mr Charan did not actually resign during this conversation. It was undisputed that, during this conversation, Mr Charan gave Mr Pohlen the option of letting him go. However, I am not satisfied on the evidence that Mr Charan resigned. Mr Charan has consistently maintained that he did not resign and this is accepted.
Second conversation
[40] After Mr Charan gave Mr Pohlen the shop key, both Mr Charan and Mr Pohlen left the shop at the same time. It was Mr Pohlen’s evidence that it was by pure chance that they left the shop together. On the other hand, Mr Charan stated that it was not by chance but rather because he wanted to continue the conversation about getting formal written advice about what had happened.
[41] When Mr Pohlen and Mr Charan commenced the second conversation, it became apparent to them both that they had different perceptions of what had occurred during the first conversation. Mr Charan’s view was that this was the result of Mr Pohlen having done a 180 degree turn by saying that he had not dismissed Mr Charan but that Mr Charan had quit. Mr Charan’s understanding of the preceding conversation was that Mr Pohlen had dismissed him and that he (Mr Charan) had accepted the dismissal. For Mr Pohlen, it was that Mr Charan had quit mid shift and that he had not terminated Mr Charan’s employment.
[42] It was common ground that Mr Pohlen and Mr Charan then argued about whether Mr Pohlen had dismissed him and Mr Charan had accepted the dismissal or whether Mr Charan had quit. The parties then agreed to disagree about what had happened and that they would both get advice about the situation. It was undisputed that it was agreed that Mr Charan would leave early (have the rest of the day off as annual leave or sick leave or as a mental health day). Mr Charan refused the offer of a mental health day. The conversation was left on the basis that Mr Charan would get in touch with Fair Work and would be in contact with Mr Pohlen the next day. Also undisputed was that, at the end of this conversation, Mr Pohlen asked Mr Charan if he was going to be at work the next day.
[43] It was common ground that, by the end of the second conversation on Tuesday 6 June 2017, it was apparent to Mr Pohlen and Mr Charan that they held very different views about what had taken place that day. It was undisputed that Mr Pohlen told Mr Charan more than once that he had not dismissed Mr Charan and that Mr Charan had resigned. For his part, Mr Charan repeated to Mr Pohlen his contention that he had not quit and that Mr Pohlen had terminated him and that he had accepted it.
[44] It is apparent from the undisputed evidence that, at this point, Mr Charan clearly understood that he had not been dismissed by Mr Pohlen. However, Mr Charan appears not to have accepted that, instead insisting that he had been dismissed and that he had accepted the dismissal. Mr Pohlen’s observation that Mr Charan was pleased to be terminated and did not want to be “un-terminated” would appear to be apt. It seems from Mr Charan’s evidence that he was uncompromising in his view that he had been terminated and that he had accepted the termination and that he was unwilling to accept that he had not been dismissed. When told more than once by Mr Pohlen that he had not been terminated, Mr Charan continued to maintain that he had been and that he had accepted it.
Subsequent events
[45] Having left early on 6 June 2017 on the basis that he would contact Mr Pohlen the next day, Mr Charan did not attend work on Wednesday 7 June 2017 or Thursday 8 June 2017. Mr Charan emailed Mr Pohlen on Thursday 8 June 2017 and repeated that he considered himself terminated from The Games Shop. Mr Charan requested that Mr Pohlen confirm that he had been dismissed. 127
[46] Mr Pohlen replied to Mr Charan on Monday 12 June 2017 that he would respond by the end of the next day. Mr Pohlen also advised that he had paid Mr Charan up until 2.00pm on the Tuesday together with his outstanding annual leave. 128
[47] It was Mr Charan’s response, in two emails on Monday 12 June 2017, that this was unacceptable. This was on the basis that the payments were at the new rate and that his termination needed to be confirmed before any payments were made. 129
[48] Mr Pohlen responded by email to Mr Charan on Friday 16 June 2017 indicating that he had tried to call Mr Charan the day before and apologising for the delayed response. Mr Pohlen stated that he had not terminated Mr Charan but that, having demanded a higher hourly rate and been denied advised that he would not get it, Mr Charan had refused the offer to stay on until he found another job and had quit. It was also indicated that he was still waiting for Mr Charan’s response from Fair Work. 130
[49] Mr Charan emailed Mr Pohlen back on Tuesday 20 June 2017 reiterating that he believed they had a verbal arrangement about his pay and position. He suggested they arrange a meeting time to discuss his final pay. Mr Charan also set out what he believed he was owed together with the name of the Fair Work Ombudsman Dispute Resolution Adviser and that person’s telephone number. 131
[50] On Monday 26 June 2017, Mr Pohlen emailed Mr Charan advising his view of their arrangement and disputing that there had been a redundancy and other of Mr Charan’s calculations. He indicated that he was open to having a conversation to conclude the issue. 132
[51] There does not appear to have been any further contact between the parties following Mr Pohlen’s email on 26 June 2017. This application was filed by Mr Charan on 27 June 2017.
[52] It would seem that no conclusion was reached between the parties regarding the situation in the period following their last conversation on 6 June 2017. As Mr Charan did not attend work at any time after Tuesday 6 June 2017 and did not contact Mr Pohlen as agreed the next day but on Thursday 8 June 2017, it may well be that Mr Charan in effect abandoned his employment. However, it is not possible to make any findings in relation to what occurred after 6 June 2017. This is because the situation did not change after 6 June 2017 from where it was left on 6 June 2017. That is, Mr Pohlen maintained that he had not terminated Mr Charan’s employment and that Mr Charan had resigned. On the other hand, Mr Charan was of the clear view that Mr Pohlen had dismissed him and that he had not resigned.
Conclusions
[53] As has been indicated in paragraphs [19] and [20] above, Mr Charan submitted that the Respondent had terminated his employment on two grounds (verbal termination by Mr Pohlen on 6 June 2017 and by being demoted and having his pay rate cut). In the alternative, Mr Charan also argued that, if he did resign, it was because he was forced to resign. I will deal with each of these grounds in turn.
Verbal termination of Mr Charan’s employment on 6 June 2017 (first ground)
[54] The first ground was Mr Charan’s contention that he had been verbally terminated by Mr Pohlen during the first conversation on 6 June 2017.
[55] On the basis of the findings of fact set out in paragraph [38] above, I am not satisfied that Mr Pohlen verbally terminated Mr Charan’s employment during the first conversation on 6 June 2017. I have found that it is probable, on balance, that Mr Pohlen did not dismiss Mr Charan.
Termination as a result of demotion (second ground)
[56] The second ground of Mr Charan’s submissions regarding his dismissal was that Mr Pohlen’s action in reducing Mr Charan’s hourly rate and by demoting him from his role of manager to that of retail employee, amounted to termination of his employment. In essence, Mr Charan argued that this was a repudiation of the agreement he had reached previously with Mr Mackay-Scollay.
[57] The Full Bench in Dover-Ray v Real Insurance Pty Ltd 133 summarised the principles of repudiation as set out in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd134 as follows:
“[22] As is apparent from this extract, the test for intention is not a subjective one depending on the actual intention of the repudiating party. Intention is to be judged from what the other party reasonably infers from the actions or words of the party who is alleged to have repudiated the contract.
[23] A repudiation of a contract does not automatically terminate that contract. Rather, the contract comes to an end only when the other party elects to accept such repudiation. Such acceptance may be by words or conduct. The learned authors of Macken’s Law of Employment note that acceptance of a repudiation may be easily inferred.” (footnotes omitted)
[58] In applying these principles, the following facts and findings are relevant to consideration of the question as to whether or not Mr Pohlen repudiated the verbal contract made between Mr Charan and Mr Mackay-Scollay. It was undisputed that Mr Pohlen told Mr Charan on 5 June 2017 that he was reducing Mr Charan’s hourly rate from $30 an hour to $22 an hour. I have found that Mr Charan accepted the reduction in his hourly rate and the change in his duties, albeit not happily, and that he told Mr Pohlen that he would be looking for another job. It seems that, after accepting the changes on 5 June 2017, Mr Charan sought to renegotiate the situation the following day. The outcome of that conversation, in terms of whether or not there was a subsequent agreement to alter the changes that had been accepted the day before, appears not to have conclusively changed the situation as at the end of the 5 June 2017 conversation.
[59] Applying the principles regarding repudiation set out above, I find that, during the conversation on 5 June 2017, Mr Pohlen expressed the intention to Mr Charan to no longer be bound by the verbal contract made between Mr Charan and Mr Mackay-Scollay. In expressing that intention, Mr Pohlen was, in effect seeking to repudiate the verbal contract. It is apparent from the evidence that Mr Charan understood that Mr Pohlen no longer wanted to be bound by the agreement Mr Charan had reached with Mr Mackay-Scollay. Mr Charan’s response was to accept the variation to his terms of employment and he continued working with the Respondent. Mr Charan sought to renegotiate the changes the next day but the outcome of that discussion does not conclusively lead to a finding that there was any agreed variation to the changes that had been made accepted by Mr Charan on 5 June 2017.
[60] A repudiation of a contract does not automatically terminate that contract but gives the affected party the right to terminate the contract. If the affected party accepts the repudiation and exercises their right to terminate the contract, this will amount to a termination at the employer’s initiative. In accepting the changes on 5 June 2017 and then choosing to remain in employment until he found another job, Mr Charan did not accepted the repudiatory conduct by Mr Pohlen. Rather, his response to the repudiatory conduct was to elect to continue performance of the contract (as varied). Therefore, I find that Mr Charan was not dismissed by Mr Pohlen on this ground.
Was Mr Charan forced to resign (alternative argument)
[61] In the alternative, Mr Charan submitted that, if the situation was not considered to be a termination or the Commission was unable to decide, there were some aspects of forced resignation due to his demotion. 135 Mr Charan provided a number of cases in support of his argument that there were special circumstances and that the employer bore the onus of proof.136 The cases that Mr Charan attached to his submissions included some of the leading authorities137 in relation to forced resignations where there had been a resignation by the employee. In particular, Mr Charan referred to when a resignation was given in the heat of the moment, in special circumstances, an employer may be required to allow a reasonable period of time to pass.
[62] A forced resignation or constructive dismissal occurs when an employee feels they have no choice but to resign. It requires action by the employer with the intent to bring the relationship to an end or that has that probable result. The onus is on the employee to prove that they did not resign voluntarily. In a situation where an employee resigns in the heat of the moment (special circumstances), it may be unreasonable for the employer to assume that the employee has resigned. 138
[63] Mr Charan has been very clear throughout this case that he did not resign and the Commission has accepted Mr Charan’s evidence in this regard. On the basis of the findings of facts in this matter, the factual matrix in this matter can be distinguished from cases where the employee resigned in a forced resignation situation. As that is not the situation here, it is not possible for the Commission to find that Mr Charan resigned in the heat of the moment. Neither is it possible to find that the employer’s actions were intended to bring the employment relationship to an end or that that was the probable result of the employer’s actions. It was Mr Pohlen’s evidence that he had no intention of dismissing Mr Charan on Tuesday 6 June 2017. This is accepted as it would seem not to have been in Mr Pohlen’s interests for him to have taken 40 hours of employee work out of the shop by dismissing Mr Pohlen. It is also in the context that Mr Pohlen was of the understanding that, at the end of the meeting on 5 June 2017, there was acceptance by Mr Charan of the proposed changes.
[64] For these reasons, it is not possible for the Commission to find that this was a case of a forced resignation, either in the heat of the moment or otherwise.
[65] The Commission is required to be satisfied that there was a dismissal at the initiative of the employer. On the basis of the findings made and the evidence before the Commission, I am not satisfied that Mr Pohlen dismissed Mr Charan either by verbally terminating Mr Charan’s employment on 6 June 2017 or by repudiation of the contract or that it was a case of forced resignation.
[66] Having found that Mr Charan was not dismissed in accordance with the definition of ‘dismissed’ set out in sections 386(1)(a) and (b) of the Act, I turn now to the exceptions in s.386(2) of the Act. The exceptions in sections 386(2)(a) and (b) are not relevant in this matter. With respect to section 386(2)(c), in paragraph [33] above, I found that Mr Charan was not demoted from the position of store manager to that of retail assistant for the reasons set out in that paragraph. Mr Pohlen did change some of Mr Charan’s duties but I was not satisfied that Mr Pohlen changed Mr Charan’s position by demoting him.
[67] As has been discussed in paragraphs [56] to [60] above, Mr Pohlen also sought to reduce Mr Charan’s hourly rate from $30 an hour to $22 an hour. In paragraph [60], the Commission has already found that, in accepting the changes on 5 June 2017 and then choosing to remain in employment until he found another job, Mr Charan did not accept the repudiation of the contract by Mr Pohlen and to continue performance of the contract (as varied). Therefore, Mr Charan was not dismissed by Mr Pohlen.
[68] Accordingly, I am not satisfied that Mr Charan was dismissed at the initiative of the employer as required by sections 386 (1) and (2) of the Act. Consequently, the Commission does not have jurisdiction to deal with Mr Charan’s application.
[69] Therefore, Mr Charan’s application is dismissed. An order 139 to this effect will be issued separately.
Appearances:
B Charan on his own behalf
M Pohlen from the Respondent
Hearing details:
2018.
Melbourne (determinative conference):
January 31.
Printed by authority of the Commonwealth Government Printer
<PR602094>
1 Exhibit R3
2 Exhibit A3 and Exhibit A4, document 1
3 Exhibit R2 and Exhibit A3
4 Exhibit R1
5 Exhibit R2
6 Exhibit R3
7 Exhibit R1
8 Exhibit R4 and Transcript PN 149
9 Transcript PN 150
10 Ibid PN 149 - 151 and Exhibit R4
11 Ibid PN 230 - 236 and ibid
12 Ibid PN 152 and ibid
13 Ibid PN 152
14 Ibid PN 162
15 Ibid PN 153 and Exhibit R4
16 Ibid PN 156 and ibid
17 Ibid PN 153 -154 and 170
18 Ibid PN 153 - 154 and Exhibit R4
19 Ibid PN 154 and 157 and ibid
20 Ibid PN 164 - 165 and ibid
21 Ibid PN 128 and 169
22 Ibid PN 167
23 Ibid PN 167 - 169
24 Ibid PN 171
25 Ibid PN 191 - 199, Exhibit R3, document number 3 and Exhibit R4
26 Ibid PN 204 - 205 and Exhibit R4
27 Ibid PN 207 and ibid
28 Ibid PN 208 and ibid
29 Exhibit R4
30 Transcript PN 209 - 210
31 Ibid PN 211 and 322 and Exhibit R4
32 Ibid PN 340
33 Ibid PN 340
34 Ibid PN 213 and 240 - 241
35 Ibid PN 241
36 Ibid PN 215 - 216 and 322 and Exhibit R4
37 Ibid PN 256 and 313 - 314
38 Ibid PN 217 and Exhibit R4
39 Ibid PN 217 and ibid
40 Ibid PN 218
41 Ibid PN 131 and 324
42 Ibid PN 131 and 324
43 Ibid PN 337
44 Ibid PN 339 - 340, 354 - 355 and 358 - 363
45 Ibid PN 131
46 Ibid PN 337 and 430
47 Ibid PN 338
48 Ibid PN 325 - 328
49 Ibid PN 328 - 330
50 Ibid PN 364 - 365
51 Ibid PN 401 - 402 and Exhibit R4
52 Ibid PN 403 and ibid
53 Ibid PN 214
54 Ibid PN 128 and 214
55 Ibid PN 128
56 Ibid PN 129
57 Ibid PN 129
58 Ibid PN 129 - 131
59 Ibid PN 258 - 266 and 297 - 302
60 Ibid PN 394
61 Ibid PN 399 - 400
62 Ibid PN 404 - 409
63 Ibid PN 394 - 396 and Exhibit R2
64 Ibid PN 396 and ibid
65 Ibid PN 219 - 222
66 Exhibit A1
67 Exhibit A2
68 Exhibit A3
69 Transcript PN 523 - 525
70 Ibid PN 525 - 526
71 Ibid PN 527
72 Ibid PN 528
73 Ibid PN 528 - 530 and 536-537
74 Ibid 536 - 537
75 Ibid PN 538
76 Ibid PN 539, 592, 610, 628 and 708 - 716
77 Ibid PN 706 - 707
78 Ibid PN 592
79 Ibid PN 539, 632 and 635
80 Ibid PN 632
81 Ibid PN 686 - 691
82 Ibid PN 692 - 699
83 Ibid PN 701 and 703
84 Ibid PN 724 - 729
85 Ibid PN 540 - 542 and 556
86 Ibid PN 552 - 562, 608 and 638
87 Ibid PN 564
88 Ibid PN 565 - 566, 578, 581 and 633 and Exhibit A3
89 Ibid PN 614 and 618
90 Ibid PN 566 and 578
91 Ibid PN 639 and Exhibit A3
92 Ibid PN 653 and Exhibit A3
93 Ibid PN 654, 754, 766 - 768 and 769 - 770 and ibid
94 Ibid PN 660 and 841 and ibid
95 Ibid PN 660 and 663 - 664
96 Ibid PN 747 - 754
97 Ibid PN 738 - 742 and Exhibit A3
98 Ibid PN 665 and ibid
99 Ibid PN 665
100 Ibid PN 666 and 845 - 852
101 Ibid PN 667 - 668 and 858 - 859 and Exhibit A3
102 Ibid PN 817 - 818
103 Ibid PN 820 - 824, 838 - 839, 853 - 855 and 857 and Exhibit A3
104 Ibid PN 826
105 Ibid PN 669, 828 - 834 and 863 - 865 and Exhibit A3
106 Ibid PN 869 - 875 and 879 and Exhibit A3
107 Ibid PN 670
108 Ibid PN 269 - 270 and 670
109 Ibid PN 522 and 670
110 Ibid PN 671 and 834
111 Ibid PN 671 - 672
112 Ibid PN 128 - 131 and 901
113 Ibid PN 131 and 901 and Exhibit R1 and Exhibit R2
114 Ibid PN 901 - 902
115 Ibid PN 522 - 525, 904 - 915 and 927 - 975
116 Ibid PN 977 - 978, 522 - 525, 904 - 915 and 927 - 975, Exhibit A1 and Exhibit A2
117 Ibid PN 522 - 525 and 904 - 915
118 Ibid PN 564 - 565 and 592
119 Ibid PN 566 and 578
120 Ibid PN 562 - 564, 570 and 638
121 Exhibit R3
122 Ibid
123 Exhibit A4, document 1
124 Ibid
125 Exhibit A3
126 Exhibit R4
127 Exhibit R3, document 3
128 Ibid
129 Ibid
130 Ibid
131 Ibid
132 Ibid
133 [2010] FWAFB 2670 at [22] – [23]
134 (2007) 233 CLR 115
135 Transcript PN 522
136 Ibid
137 For example, Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, 7 July 1999), Minato v Palmer Corporation Ltd [1995] IRCA 315 (30 June 1995) and Kwik-Fit (GB) Ltd v Lineham [1991] UKEAT 250 91 2410 (24 October 1991)
138 Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, 7 July 1999) at [12]
139 PR606665
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