Champaka Somaratne v Concept Amenities Pty Ltd

[2013] FWC 794

[2013] FWC 794

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Champaka Somaratne
v
Concept Amenities Pty Ltd
(U2012/12310)

COMMISSIONER BLAIR MELBOURNE, 11 FEBRUARY 2013

S.394 - application for unfair dismissal remedy.

[1] The above matter is an application under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The application was made by Mr Champaka Somaratne (the Applicant) against his former employer, Concept Amenities Pty Ltd (the Respondent). The matter was arbitrated on 18 January 2013 and the following decision (now edited) was handed down in transcript at the hearing:

[2] “The first issue the Tribunal must determine is whether or not there was a termination at the instigation of the Respondent. The Applicant commenced employment on 1 March 2004 and finished employment on 2 August 2012.

[3] The main point that the Tribunal has to deal with in determining whether there was a termination at the instigation of the employer, or whether there was a resignation, is a conversation that occurred on 17 July 2012 between the Applicant and the Respondent. There were no witnesses to that conversation. There are quite different views as to what occurred at that meeting on 17 July 2012 at the Respondent’s premises.

[4] What is before the Tribunal is whether or not the Respondent indicated to the Applicant that he was being put on notice due to work performance that his services were to be terminated on 2 August 2012. The Applicant is clear in his mind that that was what was put to him. The Applicant states in his statement:

“On 17 July our operations manager, Charles Honour, called me to his office suddenly and mentioned to me that the company no longer require me (I was shocked for a moment). Then he said he will give me three weeks to find a job, and he could give me a good reference. Meanwhile, he offered me four weeks' pay in lieu instead of 14 weeks which I am entitled as I have worked with Concept Amenities more than eight years. I said to him I need all my entitlements.”

[5] The Respondent denies that the Applicant was put on notice and that his services were to be terminated on 2 August 2012. The Respondent states that the purpose of the period between 17 July and 2 August was to review the performance of the Applicant. The Respondent states that a letter was presented to the Applicant on 17 July. That letter states:

“We refer to our meeting on 17 July 2012 and confirm that your performance at Concept Amenities has not met the standard of an employee in your position for the following reasons: (1) in ability to attend breakdowns successfully, (2) increase machine down-time, (3) the increased costs of outside contractors to attend to breakdowns. We confirm that improvement in your performance is required if you are to remain employed in your current position with Concept Amenities. This improvement is to be determined by the following: (1) improved down-time, (2) reduced outside contractor work costs, (3) RFT when attending the breakdowns. We will reassess your performance on 2 August 2012. If by this time the required improvement in your performance is not met, we will meet with you again to discuss whether or not your employment will be terminated. We will, of course, give you reasonable advanced notice should such a meeting be necessary and you will be allowed, indeed encouraged, to bring a support person to that meeting.”

[6] The applicant denies that the letter was provided to him on 17 July 2012. The respondent states that it was offered to the Applicant, but he declined to accept it and left it on the table in the office. Both parties agree that that letter dated 17 July 2012 was provided to the Applicant at a meeting that occurred on 2 August that had been scheduled.

[7] At the meeting on 2 August, the applicant says:

“Then he [I assume Mr Honour] mentioned to me to wait for another week where it looked like he wanted to give me another warning letter and I mentioned to him you said today is my last day and I had made my mind to leave, and why do you want me to stay another week, and I have made my mind. Then he said he'd want time to arrange without five weeks and to put me on a solicit work, then said he will organise everything today evening.”

[8] The Applicant then states that he rang Fair Work, but that appeared to be the Fair Work Ombudsman and not Fair Work Australia, as it was then. The Respondent states that the purpose of the meeting was to review the performance of the Applicant.

[9] The Applicant's own evidence is a bit confusing. The Applicant states that the meeting on 2 August was to review, and the Applicant used the term review under oath, but then was satisfied within his own mind that he was to be terminated on 2 August. There is an inconsistency in that approach. What occurred on 17 July, on the balance of probabilities in the Commission's view, is a misunderstanding on the part of the Applicant as to what was said.

[10] If the Applicant, though, had have been offered 14 weeks' pay if the conversation was around finishing on 2 August, this application would not have been made. The Applicant has said that directly in questioning from the Commission. He states that if 14 weeks' pay, which was redundancy pay, had been paid, he would not have made a claim.

[11] The Commission is satisfied on the balance of probabilities that the Applicant was confused as to the means of the conversation that occurred on 17 July and had in his mind that he was entitled to be made redundant. The Respondent states that the position was not redundant and the Applicant has been replaced. Some discussion occurred previously on transcript about the meaning of redundancy and a person entitled to redundancy.

[12] Having determined on the balance of probabilities that there was a misunderstanding on the part of the Applicant as to the nature of the conversation that occurred on 17 July, the Commission then must ask does that misunderstanding fall within section 386 of the Act, meaning of dismissed. Section 386, meaning of dismissed, 386(1) states:

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.

[13] The Commission is satisfied that a misunderstanding on the part of the Applicant as to the nature of the conversation that occurred on 17 July does not fall within the meaning of dismissed either in 386(1)(a) or 386(1)(b) of the Act.

[14] Therefore, the Commission would determine that there was not a termination at the initiative of the Respondent; that what occurred in the discussion in between the discussions of 17 July and 2 August was in fact a resignation on the part of the Applicant.

[15] There being a resignation on the part of the Applicant, the Applicant is not entitled to bring a claim under the Fair Work Act alleging unfair dismissal. Accordingly, the matter is dismissed.

COMMISSIONER

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