Cottaghe v South Pacific Restaurant Unit Trust T/A House of Brews

[2019] FWC 1539

[2019] FWC 1539

FAIR WORK COMMISSION

DECISION

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

Mr Sameera Dilshan Hewa Cottaghe
v
South Pacific Restaurant Unit Trust T/A House of Brews
(U2018/10561)

COMMISSIONER HUNT BRISBANE, 8 APRIL 2019

Application for an unfair dismissal remedy – jurisdictional objection – applicant resigned – application dismissed.

[1] Mr Sameera Dilshan Hewa Cottaghe has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with South Pacific Restaurant Unit Trust T/A House of Brews (House of Brews) constituted a dismissal, and was harsh, unjust or unreasonable.

[2] Mr Hewa Cottaghe commenced employment with House of Brews as a chef on a casual basis on 6 April 2017, transferring to full-time employment on 10 July 2017. Mr Hewa Cottaghe’s employment came to an end on 10 October 2018. He was employed pursuant to a Temporary Work (Skilled) visa, known as a subclass 457 visa, and House of Brews acted as a sponsor for him in accordance with his 457 visa obligations.

[3] House of Brews raised a jurisdictional objection to Mr Hewa Cottaghe’s application on the basis that he was not dismissed, submitting that he voluntarily resigned with immediate effect on 10 October 2018.

Mr Hewa Cottaghe’s right to remain in Australia

[4] On 12 December 2018 I convened a telephone conference between the parties. Mr Hewa Cottaghe revealed that he had not secured alternative employment, although he was hopeful to shortly do so. I raised with Mr Hewa Cottaghe the issue that he was permitted to be in Australia on a 457 visa, but his employment had ended more than 60 days earlier, and he might be at risk of being detained.

[5] On 19 December 2018, prior to the hearing of this matter, an email was sent from my chambers to the parties, directing Mr Hewa Cottaghe to submit evidence on a weekly basis of his continuing right to remain in Australia.

[6] On 24 December 2018 Mr Hewa Cottaghe provided to my chambers a Visa Entitlement Verification Online (VEVO) Visa Details Check document. Further clarification was sought from Mr Hewa Cottaghe regarding his entitlement to lawfully remain in Australia. I inquired whether he or his immigration agent was in receipt of a Notice to Consider Cancellation issued by the Commonwealth Department of Immigration.

[7] On 31 December 2018 Mr Hewa Cottaghe sent correspondence to my chambers stating that his visa remained current, and he advised that he had a new sponsor employer. He stated that the new sponsor employer would be applying for the Nomination Transfer in the first week of January 2019. He provided proof of such on 12 January 2019.

Hearing

[8] The matter was listed for jurisdictional hearing on 15 January 2019. Mr Hewa Cottaghe appeared on his own behalf, assisted by an English–Sinhalese interpreter. Mr Damien Kanaghines, Director appeared for House of Brews.

[9] The following people gave evidence and were present at the hearing:

•  Mr Sameera Dilshan Hewa Cottaghe

•  Mr Damien Kanaghines, Director

•  Mr Sacha Kanaghines, Director

•  Ms Rebecca Gilloran, Office Manager

•  Mr Adam Raz, Floor Manager

•  Ms Jessica Legault, Venue Manager

•  Mr Iain McKie, General Manager

[10] There is no contention that Mr Hewa Cottaghe was employed by House of Brews on a full-time basis, for at least six months. 1 House of Brews did not allege that Mr Hewa Cottaghe was not a person protected from unfair dismissal pursuant to s.382 of the Act. I find that Mr Hewa Cottaghe is a person protected from unfair dismissal. The application was filed on 12 October 2018, just two days after the purported dismissal.

Overview of Mr Hewa Cottaghe’s evidence

[11] Mr Hewa Cottaghe worked for House of Brews on a full-time basis from 10 July 2017 until 10 October 2018. He stated that during his employment he did not receive any complaints regarding his work.

[12] Mr Hewa Cottaghe’s evidence is that prior to what he termed the termination of his employment, a new Head Chef was appointed. Mr Hewa Cottaghe had several issues with the new Head Chef regarding cleanliness and the operation of the kitchen generally.

[13] During 2018, Mr Hewa Cottaghe holidayed overseas for a period of four weeks. On his return he found that the new Head Chef had replaced some of the kitchen staff with his own, preferred employees. The Head Chef was not happy about Mr Hewa Cottaghe’s return from leave, and said to Mr Hewa Cottaghe that he did not think he would have returned to work after taking the leave. Mr Hewa Cottaghe was perplexed by this remark.

[14] Mr Hewa Cottaghe stated that he and the other kitchen staff were subjected to excessive pressure by the new Head Chef. He stated that he was working in excess of 12 hours per day and 60 hours per week. The Head Chef would leave the kitchen at 9pm, requiring Mr Hewa Cottaghe and one other employee to sometimes work until 2am to finish the clean-up. 2 Mr Hewa Cottaghe was paid for 38 hours a week, regardless of his actual worked hours.3

[15] At approximately 5.00pm on 10 October 2018, while Mr Hewa Cottaghe was on a meal break, Mr Sacha Kanaghines (Mr S Kanaghines), Director, asked him to come to his office, where he stated he was not “getting his money worth from [Mr Hewa Cottaghe’s] work”. Mr Hewa Cottaghe replied that he was “still working 60 hours per week and getting paid for 38 hours week [sic]”. 4

[16] Ms Gilloran was present during the meeting, and it is Mr Hewa Cottaghe’s evidence that Mr S Kanaghines pushed a piece of paper towards him and asked him what he would earn as a chef in Sri Lanka. Mr S. Kanaghines said it was not worth having him in the business. Mr S Kanaghines became angry and said, “Do you think I’m foolish?”

[17] Mr S Kanaghines proceeded to speak with Mr Hewa Cottaghe in an aggressive manner, stating that the Head Chef had advised him that Mr Hewa Cottaghe was not working well in the kitchen. Mr Hewa Cottaghe replied that he was doing his best considering the reduced staff in his section and his long work hours. Mr S Kanaghines replied that if Mr Hewa Cottaghe “was not in the kitchen they could do better without [him]”. 5 Mr Hewa Cottaghe’s evidence was that this information had come from the new Head Chef, as Mr Hewa Cottaghe had worked for House of Brews for 10 months with no complaints.6

[18] Mr Hewa Cottaghe asked Mr S Kanaghines, “What do you want me to do?” to which Mr S Kanaghines replied, “You make a decision before I do!” 7

[19] Mr Hewa Cottaghe requested time to talk to his family in Sri Lanka. He telephoned his wife, who said to him words to the effect, “Protect yourself. We’ll find another job somewhere.” His evidence is that he felt at that time that Mr S Kanaghines was going to force him to resign.

[20] In questioning from me, Mr Hewa Cottaghe said that after the first meeting he considered that he would not be allowed to work in the kitchen.

[21] Mr Hewa Cottaghe then spoke with some of his colleagues in the kitchen, telling them that Mr S Kanaghines did not want him to work in the kitchen. He told them that he will probably not be working in the kitchen. As he made his way to the office to again meet with Mr S Kanaghines he ran into Ms Legault.

[22] His evidence is that he briefly explained what had happened in the office. His eyes were filled up with tears. She asked him if he was OK, and he explained to her that he probably won’t be allowed to work in the kitchen; she “just listened”. He said that he was returning to meet with Mr S Kanaghines. He denied that he shook her hand and said goodbye, and thanks.

[23] Mr Hewa Cottaghe then returned to the office and stated, “If you want me to go out, give me something in writing I will go”. 8 Mr S Kanaghines advised there was “no need to do that”, and made Mr Hewa Cottaghe get his bag and sign off. Mr S Kanaghines then escorted Mr Hewa Cottaghe off the premises. He gave evidence that he considered that he was being forced to sign off for that shift only. Later he gave evidence that he considered that he was being dismissed with no reason. In answering questions from me, Mr Hewa Cottaghe stated that he had asked Mr S Kanaghines why he was not being given any notice.

[24] Mr Hewa Cottaghe’s evidence is that he had been feeling unwell at work, but he still attended as he did not ever take a sick day. After leaving the premises, and on his walk to his home, he spoke with Mr D Kanaghines by telephone. He was feeling down, and considered that he had been terminated. He considered that there had not been a ‘legal exchange.’ After speaking with Mr D Kanaghines he held hope that what he considered to be Mr S Kanaghines’ decision to dismiss him, it could be reversed.

[25] At 9:29pm on 10 October 2018, Mr Hewa Cottaghe sent a text message to Mr Damien Kanaghines (Mr D Kanaghines), which stated: 9

“Hello Mr Damiean.

I had to leave early this evening as I was feeling sick. Seeing doctor tomorrow. Thank you!”

[26] At 12:54pm on 11 October 2018, Mr Hewa Cottaghe provided to Mr D Kanaghines by text message a copy of a medical certificate. The medical certificate stated:

“THIS IS TO CERTIFY THAT

Mr Sameera Hewa Cottaghe

IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD

Thursday, 11 October 2018 TO Sunday, 14 October 2018 INCLUSIVE

He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION

This Certificate was completed on 11/10/2018

Dr Bashar Abdulrazak”

[27] Also on 11 October 2018, Mr Hewa Cottaghe’s Immigration Agent, Mr Dushan Peiris, contacted him by phone stating that he had received an email from Mr D Kanaghines terminating Mr Hewa Cottaghe’s employment contract and sponsorship by House of Brews, and had removed Mr Hewa Cottaghe’s name from the working roster.

[28] The application for unfair dismissal was filed on 12 October 2018.

[29] As part of Mr Hewa Cottaghe’s evidence, he stated he has been subject to intimidating text messages from Mr D Kanaghines and Mr S Kanaghines, asking that he withdraw his complaint to the ‘Fair Work Ombudsman’, otherwise it would have a detrimental effect on his visa application. 10 A text from Mr D Kanaghines to Mr Hewa Cottaghe of 15 October 2018, provided as follows:11

“You put a claim into Fair work. And you need to be careful with your visa. I think you have made some very silly decisions that you don’t understand the ramifications. I am happy to meet you to sort this out but you must remove your claim and then I will help you find a new job”.

[30] Mr D Kanaghines offered to assist Mr Hewa Cottaghe in finding a new job, if he withdrew his ‘Fair Work Ombudsman’ complaint. Mr Hewa Cottaghe did not believe Mr Kanaghines was sincere, and continued to progress his complaint.

[31] In answering a question from me, Mr Hewa Cottaghe was certain that he did not resign his employment.

Overview of House of Brews’ evidence

Mr S Kanaghines

[32] Mr S Kanaghines, Director, provided a witness statement in these proceedings regarding the end of Mr Hewa Cottaghe’s employment. 12

[33] Up until August 2018 there had been no issues with Mr Hewa Cottaghe’s work. When he returned from a five week holiday, the Head Chef alerted Mr S Kanaghines to concerns he had with Mr Hewa Cottaghe’s work.

[34] Mr S Kanaghines stated that on 10 October 2018 he asked to speak with Mr Hewa Cottaghe, as the ‘management team’ had identified he was not communicating with his co-workers and was slowing the process down. He stated there were three witnesses to his conversation with Mr Hewa Cottaghe during this initial conversation. They did not play an active role in the conversation.

[35] It is his evidence that the conversation was relevant to Mr Hewa Cottaghe not answering the Head Chef and not communicating in the kitchen. His lack of communication was impacting on safety and also delaying the times food was being served to customers.

[36] Mr S Kanaghines stated that Mr Hewa Cottaghe left the office after assuring Mr S Kanaghines that he had understood the conversation. Mr Hewa Cottaghe returned five minutes later and said words to the effect that he had spoken with his wife, and he did not wish to work there anymore. He said that he would not be giving any notice. Mr S Kanaghines was shocked that he was not going to give any notice and asked him if he was serious? He asked him if he was giving two weeks’ notice, to which Mr Hewa Cottaghe said that he would not be giving any notice.

[37] Mr S Kanaghines’ evidence was that he thanked Mr Hewa Cottaghe for his time, and escorted him to the front door after he had signed out using a digital fingerprint scanner.

[38] He stated that it was not in his best interests to dismiss a chef, with a limited recruitment market. Further, dismissing a chef just before service caused significant damage. Mr S Kanaghines denied making the statements in [15] – [18] above.

[39] In cross-examination he agreed that during the first conversation he asked Mr Hewa Cottaghe what it is like working in Sri Lanka. He asked him what the conditions would be. He then explained to him how much better he is being treated in Australia, and outlined some of the conditions he enjoyed.
[40] Mr S Kanaghines stated that he wrote his witness statement without any influence from any other person.

Mr McKie

[41] Mr McKie, General Manager, provided a witness statement in these proceedings of his recollections of the conversation between Mr S Kanaghines and Mr Hewa Cottaghe on 10 October 2018. 13 Mr McKie confirmed that Mr S Kanaghines called Mr Hewa Cottaghe into the office to address communication issues experienced by the kitchen staff.

[42] Mr McKie’s evidence was that such conversations were standard practice, and further, that Mr Hewa Cottaghe was not reprimanded and was not in trouble.

[43] In questions from me, he wasn’t sure if the meeting he was referring to above was the meeting on 10 October 2018. He is certain he has been present when meetings have been held with Mr Hewa Cottaghe and another chef regarding their communication. He could not recall any discussion where Mr S Kanaghines discussed with Mr Hewa Cottage the Sri Lankan comparison, and it appears to me that he was not present during the first meeting of 10 October 2018, but rather, at another meeting on another day.

[44] Mr McKie’s evidence is that Mr Hewa Cottaghe left the office following the brief discussion, and returned a short time later and stated he wasn’t working there anymore. His evidence was that Mr Hewa Cottaghe made the decision to resign with immediate effect, stating that he was not giving any notice, and he was escorted off site after he had collected his belongings.

[45] It is Mr McKie’s evidence that he is 100 per cent certain that Mr Hewa Cottaghe resigned his employment. He recalled that at some point Mr Hewa Cottaghe said, “If you want me to go, I’ll go, but give me the reason”, but he could not recall when it was said. His best recollection is that Mr Hewa Cottaghe offered to leave, and Mr S Kanaghines said, “There’s no need to do that.”

[46] In cross-examination Mr Hewa Cottaghe put it to Mr McKie that they had never been in a meeting together. Mr McKie vehemently denied such suggestion, and stated that he had been in meetings with him.

[47] Mr McKie was not entirely happy with Mr Hewa Cottaghe’s work performance in October 2018, so he wasn’t too inconvenienced by Mr Hewa Cottaghe’s departure.

[48] Mr McKie stated that he wrote his witness statement without any influence from any other person.

Ms Legault

[49] Ms Legault, Venue Manager, provided a witness statement in these proceedings of her recollections of Mr Hewa Cottaghe’s employment coming to an end. 14

[50] She was aware that management was going to speak with Mr Hewa Cottaghe. There had been a disappointing lack of communication in the kitchen involving Mr Hewa Cottaghe. Ms Legault was not aware that the planned conversation had taken place when Mr Hewa Cottaghe stopped her outside the customer toilets to shake her hand and said, “Thank you for everything.” She asked him, “Are you OK?”

[51] He said that he is not respected here, and is not staying, and he didn’t want to be there. He said, “It’s all good, it’s OK.” She did not believe that anybody was going to be dismissed, and thought a solution would be discussed She said to him that she did not understand, as that was not the plan of the meeting. She was very surprised.

[52] The conversation only lasted approximately two minutes.

[53] Ms Legault agreed that the time of day of the end of the employment was one of the worst times for the establishment as it was coming into dinner service.

[54] Ms Legault stated that she wrote her witness statement without any influence from any other person.

Mr Raz

[55] Mr Raz, Floor Manager, provided a witness statement in these proceedings of his recollections of Mr Hewa Cottaghe’s employment coming to an end. 15 Mr Raz’s evidence was that on 10 October 2018, he was present at the office, working on a report, and witnessed conversations between Mr Hewa Cottaghe and Mr S Kanaghines. It is his evidence that the following people were present at this conversation; Mr Hewa Cottaghe, Mr S Kanaghines, Ms Gilloran and himself. He does not believe that Mr McKie was present for the first conversation.

[56] Mr Raz stated Mr Hewa Cottaghe was not receptive to a directive by Mr S Kanaghines that his work standards needed to be improved, as he believed they were already at an acceptable standard. Mr Hewa Cottaghe was informed that if his work efforts did not improve, further action would be taken. During examination-in-chief, Mr Raz stated that there had been numerous management meetings discussing workplace communications, but at no stage had there ever been any discussion regarding dismissing any employee.

[57] In cross-examination he agreed that Mr S Kanaghines came across as aggressive during the conversation.

[58] In questions from me, Mr Raz could not recall Ms S Kanaghines stating that he did not think Mr Hewa Cottaghe was worth the money the business was paying. He could not recall any discussion regarding Sri Lanka and comparisons with wages.

[59] Mr Raz gave evidence that Mr Hewa Cottaghe advised he needed to speak with his family, and left the office. After approximately 15 minutes when Mr Hewa Cottaghe returned, he advised Mr S Kanaghines he did not accept his terms and would be leaving immediately. When asked by Mr S Kanaghines if he would “do the right thing and give notice”, Mr Raz’s evidence was that Mr Hewa Cottaghe’s reply was to reiterate he was leaving immediately.

[60] In questions from me Mr Raz could not recall Mr Hewa Cottaghe having said on his return to the second meeting, “If you want me to go, I’ll go, just give me the reason.”

[61] Mr Raz and other managers had to try and find a replacement for Mr Hewa Cottaghe. He agreed with the proposition that an employee leaving the business under any circumstances right before dinner service is the worst time for the organisation.

[62] Mr Raz stated that he wrote his witness statement without any influence from any other person.

Ms Gilloran

[63] Ms Gilloran, Office Manager, provided a witness statement in these proceedings. 16 Her evidence was that she was at work on 10 October 2018, and confirmed the conversation between Mr S Kanaghines and Mr Hewa Cottaghe, regarding Mr Hewa Cottaghe needing to work faster.

[64] Mr Hewa Cottaghe disagreed with Mr S Kanaghines’ statements, advising he thought his work was acceptable. She did not consider it to be an aggressive conversation. She agreed that Ms S Kanaghines told Mr Hewa Cottaghe he needed to improve or there would be consequences, following which Mr Hewa Cottaghe left the office. Ms Gilloran did not hear any conversation regarding Sri Lanka and comparable salaries. Her evidence is that Mr Raz and Mr McKie were present during this conversation, although neither she or Mr McKie or Mr Raz said anything during the meeting.

[65] Ms Gilloran was not in the office when Mr Hewa Cottaghe returned to the office, so she did not hear how the employment ended. Following the meeting the managers stated that Mr Hewa Cottaghe had resigned. She did not know that Mr Hewa Cottaghe was going to call his wife, but she did learn that he did so later.

[66] Ms Gilloran stated that she wrote her witness statement without any influence from any other person.

Mr D Kanaghines

[67] Mr D Kanaghines, Director, provided a witness statement in these proceedings, regarding Mr Hewa Cottaghe’s employment with House of Brews, and his recollections of Mr Hewa Cottaghe’s employment ending. 17

[68] During the hearing it became apparent that Mr D Kanaghines had not been present for the discussion between Mr Hewa Cottaghe and Mr S Kanaghines on 10 October 2018, although he had included matters relating to that discussion in his statement. Mr D Kanaghines had also included in his statement several matters not within his personal knowledge, or providing his opinion as to Mr Hewa Cottaghe’s state of mind. Only matters within his personal knowledge and relevant to the facts in issue in this matter have been taken into account by the Commission.

[69] Mr D Kanaghines gave evidence that Mr Hewa Cottaghe’s 457 visa was transferred to House of Brews after employment with an unrelated employer ended due to reasons unknown to House of Brews. No reference check was undertaken as his employment was secured due to a promise, as Mr Hewa Cottaghe’s elderly female friend had been a long-term friend of Mr D and Mr S Kanaghines’ father.

[70] He gave evidence that Mr Hewa Cottaghe’s unsatisfactory work performance was affecting the effectiveness of the busy kitchen restaurant. It was reported to Mr D Kanaghines that when these issues were raised with Mr Hewa Cottaghe, he was offended, got up to make a phone call, and then left saying he was walking out.

[71] Mr D Kanaghines stated that it would not make sense for House of Brews to terminate Mr Hewa Cottaghe’s employment immediately, without providing notice, as the Directors were aware how damaging it would be for the business to be short-staffed on a busy night, and the coming weeks. His evidence was that Mr Hewa Cottaghe was working in accordance with a sponsored visa, and terminating his employment would be a long and difficult process. He gave the following evidence:

“This claim that [Mr Hewa Cottaghe] was sacked is a straight up lie. In 10 years of sponsoring approximately 15 chefs with 457 Visa’s, our venues have never had a chef leave, quit or been sacked while they have been sponsored”. 18

[72] The following text messages were exchanged:

10 October 2019 at 9.29pm

Mr Hewa Cottaghe:	Hello Mr Damiean.
I had to leave early this evening as I was feeling sick. Seeing doctor tomorrow. Thank you!

11 October 2019 at 12.54pm

Mr Hewa Cottaghe: Medical certificate photo declaring him unfit between 11 – 14 October 2018 inclusive. The accompanying text reads: Mr. Damien, this is for your information and necessary actions. Thank you

15 October 2019 at 4.13pm

Mr D Kanaghines:	I strongly suggest u telephone me today if u want ur situation resolved.
Mr Hewa Cottaghe:	Hello Mr. Damien. I am still sick. What do you mean??
Mr D Kanaghines:	You put a claim into Fair Work. And you need to be careful with your visa. I think you have made some very silly decisions that you do not understand the ramifications. I am happy to meet you to sort this out but you must remove your claim and then I will help you find a new job.
Mr Hewa Cottaghe:	When I can talk, I will be in touch..
Mr D Kanaghines:	I suggest u remove the claim now and then it proves you are willing to talk correctly. If not I know you are just playing games.

[73] It is Mr D Kanaghines’ evidence that on the evening of 10 October 2018, once he had become aware of the incident, he sent the following email to the immigration agent:

“Please immediately cancel Dilsham from his sponsorship with us. He walked out tonight. Quick please respond.”

[74] Mr D Kanaghines attempted to call Mr Hewa Cottaghe a number of times, but the calls were not answered.

[75] On 15 October 2018 he spoke with the immigration agent who advised that he too was having difficulties reaching Mr Hewa Cottaghe.

[76] Upon being informed that Mr Hewa Cottaghe had left the employment, Mr D Kanaghines’ immediate reaction was for the business to do its best to recover from the situation. The Head Chef was not there that night, and Mr Hewa Cottaghe’s departure then resulted in a significant hole in the kitchen.

[77] Upon receiving the medical certificate, Mr D Kanaghines’ reaction was why was that sent? He thought there was some kind of game being played by Mr Hewa Cottaghe. He considered the text message to be ‘ludicrous’.

[78] Mr D Kanaghines stated that he attempted to contact Mr Hewa Cottaghe multiple times over the next week, and contacted his immigration lawyer at the end of the week period to cancel his sponsorship with House of Brews. His evidence was that Mr Hewa Cottaghe contacted him following such, claiming he was too sick to speak with him.

[79] Mr D Kanaghines’ evidence was that he attempted to resolve the issue “in a sensible and calm way and [Mr Hewa Cottaghe] was totally erratic in his behaviour. I was willing to help him find new employment, and try to manage this process”. 19

[80] In cross-examination, he could not recall speaking with Mr Hewa Cottaghe on the evening of 10 October 2018.

[81] It is his evidence that he made relevant witnesses prepare their witness statements in isolation.

Mr Hewa Cottaghe’s submissions

[82] In oral closing submissions, Mr Hewa Cottaghe stated that it was not open to the Commission to find that there had been a constructive dismissal as he did not resign his employment. He maintained that he had been dismissed by Mr S Kanaghines on 10 October 2018.

[83] Mr Hewa Cottaghe submitted that he was not willing to resign, despite his evidence that he said to Mr S Kanaghines, “If you want me to go, I’ll go, but tell me the reason.” I questioned Mr Hewa Cottaghe as to what happened next. He stated that he did not get any response other than “follow me”. It is his submission that in saying, “follow me”, it was the act of the employer terminating his employment.

[84] I challenged Mr Hewa Cottaghe as to why he sent the text message that evening. He stated that while walking to his home he sent it to D Kanaghines. He hoped that moving forwards, even after being dismissed by Mr S Kanaghines, his employment might be saved.

[85] Mr Hewa Cottaghe said that he did not consider it to be a ‘heat of the moment’ resignation as he did not resign his employment.

House of Brews’ submissions

[86] House of Brews raised the jurisdictional objection that Mr Hewa Cottaghe was not dismissed from his employment at the initiative of House of Brews, but rather that he resigned and walked out of the workplace at approximately 6:00pm on Wednesday, 10 October 2018. 20

[87] Mr D Kanaghines explained the venue as an operation with many moving parts. It had been identified by many of the managers that there was an issue with communication in the kitchen. Attempts had been made to rectify it by having meetings. The venue was finally to the point where Mr Hewa Cottaghe was invited to the office for a conversation.

[88] In submissions it was agreed that it was an uncomfortable conversation to have and be involved in. Mr D Kanaghines submitted, “Nobody likes having these conversations.” Further, he agreed that Mr Hewa Cottaghe may have been offended, and he may have felt that he was disrespected. It is the employer’s contention that Mr Hewa Cottaghe made a phone to his wife and checked with her that he could resign his employment, and then did so.

[89] Mr D Kanaghines submitted that he reached out to Mr Hewa Cottaghe following his resignation, noting the visa obligations. Mr D Kanaghines concluded that Mr Hewa Cottaghe had no inclination to resolve the issue with the respondent.

[90] It was submitted that the text message sent by Mr Hewa Cottaghe on 10 October 2018 demonstrated that Mr Hewa Cottaghe was trying to ‘back pedal”.

[91] House of Brews submitted that it is so difficult to train a new person with similar qualifications that it makes no sense to dismiss a sponsored, qualified chef before dinner service. The employer did not want for him to leave.

[92] It was submitted that Mr Hewa Cottaghe did not commit to trying harder; he simply disagreed with the conversation. He rang his wife and obtained permission to leave his employment. House of Brews submitted that a number of managers attempted to stop him resigning his employment, with no luck. 21

[93] House of Brews submitted it has 100 employees, and uses a Human Resources Consultancy company, Workforce Guardian.

Legislation and applicable case law

[94] Section 386 of the Act states:

“386 Meaning Of Dismissed

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.”

Consideration

[95] Mr Hewa Cottaghe’s submission is that he was dismissed at the initiative of House of Brews through his discussion with Mr S Kanaghines on 10 October 2018. He had hoped it would be reversed after speaking with Mr D Kanaghines.

Was Mr Hewa Cottaghe terminated at the initiative of House of Brews?

[96] In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (Mohazab) a Full Bench of the Industrial Relations Court of Australia declined to exhaustively describe what is meant by ‘termination at the initiative of the employer’, but did state: 22

“…an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.”

[97] In O’Meara v Stanley Works Pty Ltd 23 (O’Meara), a Full Bench of the Australian Industrial Relations Commission, as this Commission then was, considered Mohazab and other case law considering when a termination will have been at the initiative of the employer, and concluded that there must be:

“[23] …some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end.”

[98] In Barkla v G4S Custodial Services Pty Ltd, a Full Bench of this Commission relied upon the detailed consideration of case law set out in O’Meara. 24

[99] Having considered the evidence and submissions before me, I prefer the evidence of the witnesses for House of Brews that there was no intention for the employment relationship to end following the events of 10 October 2018. The respondent is a sophisticated employer, with sufficient knowledge of its obligations relevant to s.457 visa holders. I accept that to summarily dismiss a sponsored chef just before dinner service would be an extraordinary unwise act.

[100] I accept that House of Brews had significant concerns regarding Mr Hewa Cottaghe’s work performance and those concerns were raised with him, and on the raising of such, Mr Hewa Cottaghe left the premises.

[101] I accept the evidence of Mr S Kanaghines, Mr Raz and Mr McKie relevant to the second discussion on 10 October 2018. I am satisfied, firstly, that there has not been collusion between them in giving evidence, and secondly, their consistent account is that after speaking with his wife, Mr Hewa Cottaghe announced that he was resigning and not giving any notice.

[102] I am satisfied that this caused a great deal of consternation for those present in the meeting, requiring urgent changes to the dinner service that evening.

[103] I do not accept Mr Hewa Cottaghe’s evidence that Mr S Kanaghines terminated his employment.

[104] The most convincing evidence, however, to satisfy me that Mr Hewa Cottaghe resigned his employment is the evidence of Ms Legault. She was a very impressive witness, and adamant that Mr Hewa Cottaghe informed her of his impending resignation and shook her hand and thanked her. I do not accept Mr Hewa Cottaghe’s evidence on this point, nor his denial that he shook Ms Legault’s hand. Mr Hewa Cottaghe informed Ms Legault of his imminent resignation before he resumed his meeting with Mr S Kanaghines.

[105] I do understand Mr Hewa Cottaghe’s evidence to be that he was upset, and had tears in his eyes. I understand we he may not recall shaking Ms Legault’s hand and thanking her.

[106] On the evidence before the Commission, and in accordance with the decision in O’Meara, there does not appear to have been a course of conduct on the part of House of Brews which was either intended to bring the employment relationship to an end, or which had that probable result. I find that Mr Hewa Cottaghe resigned his employment and did so stating that he would not give any notice. He resigned with immediate effect.

[107] I am satisfied that Mr Hewa Cottaghe was not dismissed pursuant to the consideration in s.386(1)(a) of the Act.

Was Mr Hewa Cottaghe constructively dismissed?

[108] The Full Bench in Mohazab described when a constructive dismissal occurs, and stated, “...industrial tribunals and courts have long accepted that an employee who resigns from his or her employment can and should be treated as having been dismissed by the employer if the dismissal is one where the employee did not resign willingly and, in effect, was forced to do so by the conduct of the employer.” 25

[109] The onus to prove that a resignation was not voluntary and formed a constructive dismissal lies with the employee alleging constructive dismissal occurred; 26 Mr Hewa Cottaghe in this matter. Case law regarding constructive dismissal has established that the line distinguishing conduct which leaves an employee no real choice but to resign, from an employee resigning at their own initiative is a narrow one, which must be “closely drawn and rigorously observed.”27

[110] The decision in O’Meara v Stanley Works provides a useful summary on constructive dismissal, as follows:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 

[111] Additionally, in Australian Hearing v L Peary, 28 it was stated that:

“[29] The first ground of appeal is that the Commissioner did not give proper effect to s.642(4) of the Act. It was submitted that the use of the word “forced” indicates a legislative intention that in cases of resignation there will be no termination at the initiative of the employer unless the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. On that basis, the Commissioner’s finding that the resignation resulted from the employer’s conduct is not sufficient to attract the operation of the section. The element of intention is missing. It was further submitted that there was no evidence of such an intention in any event.

[30] We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.”

[112] In Ashton v Consumer Action Law Centre, 29Commissioner Bisset considered whether an employee was forced to resign due to supervisory requirements placed on the employee, which he claimed were so onerous that it made his job impossible to do. However, it was stated in that decision that even where an employee believes supervisory requirements to be harsh, it does not mean they are so. Further, it was determined:

“[59] It is not expected that employees will always be happy in their employment. Dissatisfied employees resign from their employment on a regular basis. That they were not satisfied with management’s actions or decisions does not mean that there was a constructive dismissal or that the actions of the employer, viewed objectively, left the employee with no choice but to resign.

[60] That, following the grievance outcome and the delivery to him of a letter seeking his response on performance matters, Mr Ashton felt he had no choice but to resign does not mean that the actions of the Respondent were intended to force that resignation.

[61] In this matter, viewed objectively, the actions of the employer in investigating Mr Ashton’s grievance and/or in instigating higher level supervisory requirements and/or in providing him with a letter outlining specific areas of concern with his performance were not designed to force Mr Ashton to resign.

[62] I find that Mr Ashton was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.”

[113] Further, it has been found that where an employee is subject to disciplinary procedures, this is not in itself sufficient to demonstrate that a resignation was forced by actions of the employer. 30

[114] Turning to the present matter, it is apparent that House of Brews attempted to raise its concerns regarding Mr Hewa Cottaghe’s work performance with him to rectify shortcomings in his work and improve communication between kitchen staff. I have given due consideration to Mr Hewa Cottaghe’s evidence that Mr S Kanaghines said words to the effect that the kitchen would do better without him and that he should make a decision [regarding his employment] before he did. I accept that Mr S Kanaghines said this to him, and further, Mr S Kanaghines was somewhat aggressive in how he conducted the first meeting on 10 October 2018. I do not, however consider it was unreasonable management action in light of the expectations a reasonable employer would have in a busy restaurant kitchen. It did, however, give Mr Hewa Cottaghe reason to seek the counsel of his wife by telephone.

[115] Mr Hewa Cottaghe’s evidence, however, is that he is adamant that he did not resign his employment on 10 December 2018. It is a curious situation where the Commission has determined that the employment came to an end due to a resignation, yet the applicant has given evidence before the Commission that he did not resign.

[116] I still consider it necessary to turn my mind to the question of whether the employment ended to a resignation where Mr Hewa Cottaghe was forced to do so because of conduct, or a course of conduct engaged in by House of Brews.

[117] While I accept the conversation during the first meeting of 10 October 2018 was confrontational, and Mr S Kanaghines was somewhat aggressive, I do not accept that it was conduct that forced Mr Hewa Cottaghe into a resignation. I accept the submissions of House of Brews that it was a very uncomfortable conversation, and in all likelihood, Mr Hewa Cottaghe felt disrespected. I consider it would be a premature emotion to feel so disrespected at such a conversation that it warranted his resignation. It was available to Mr Hewa Cottaghe to turn the relationship around by demonstrating all of the competencies the employer was sure that he had and had evidenced months before. I am satisfied that Mr S Kanaghines was not seeking a resignation from Mr Hewa Cottaghe when these conversations were held.

[118] Taking into account all of the circumstances and the totality of the evidence in this matter, I am not satisfied that House of Brews’ actions on 10 October 2018 left Mr Hewa Cottaghe no option but to resign. Mr Hewa Cottaghe was not forced to resign because of conduct or a course of conduct engaged in by House of Brews.

[119] Accordingly, I find that there was not a dismissal pursuant to s.386(1)(b) of the Act.

Heat of the moment resignation

[120] It is an established principle, that an employer is generally able to treat a clear and unambiguous resignation as a resignation. 31

[121] However, where a resignation is given in the heat of the moment or under extreme pressure, special circumstances may arise such that an employer may be required to allow a reasonable period of time to pass before accepting the resignation. 32 Further, the employer may have a duty to confirm the intention to resign, if put on notice during that reasonable period that the resignation was not intended.33

[122] The evidence of House of Brews, and its supporting witness evidence, clearly demonstrates that following a period in which Mr Hewa Cottaghe made a call to his family, Mr Hewa Cottaghe returned to the work premises and said words which had the effect of confirming he was resigning with immediate effect, and was therefore no longer an employee of House of Brews.

[123] In the circumstances, I find that this satisfied an unambiguous resignation from his employment with House of Brews, and was not a resignation given in the heat of the moment such that the employer would have a duty of confirming Mr Hewa Cottaghe’s intention to resign, before accepting the resignation. Nevertheless, I accept House of Brews’ evidence that Mr D Kanaghines made a number of attempts to contact Mr Hewa Cottaghe following his resignation, and did not take steps to cancel his sponsorship until a week had passed, during which Mr Hewa Cottaghe was largely uncontactable.

Conclusion

[124] On the evidence before the Commission, I find that Mr Hewa Cottaghe voluntarily resigned from his employment with House of Brews on 10 October 2018.

[125] I find that Mr Hewa Cottaghe was not dismissed in accordance with subsection 386(1) of the Act.

[126] Accordingly, I must dismiss the application and I do so.

COMMISSIONER

Appearances:

Mr Sameera Dilshan Hewa Cottaghe, for the Applicant

Mr Damian Kanaghines, for the Respondent

Hearing details:

Brisbane, 15 January 2019

Final written submissions:

Submissions of the Applicant received 27 November 2018

Submissions of the Respondent received 23 November 2018

Printed by authority of the Commonwealth Government Printer

<PR705676>

 1 S.384(2) of the Fair Work Act 2009.

 2   Statement of Mr Hewa Cottaghe, dated 1 November 2018.

 3   Ibid.

 4   Witness Statement of Hewa Cottaghe Sameera Dilshan filed 27 November 2018.

 5   Ibid.

 6   Statement of Mr Hewa Cottaghe, dated 25 October 2018.

 7   Witness Statement of Hewa Cottaghe Sameera Dilshan filed 27 November 2018.

 8   Ibid.

 9   Text message from Mr Hewa Cottaghe to Mr Kanaghines, dated 10 October 2018.

 10   Statement of Mr Hewa Cottaghe, dated 25 October 2018.

 11   Text message from Mr Kanaghines to Mr Hewa Cottaghe, dated 15 October 2018.

 12   Witness Statement of Mr Sacha Kanaghines filed 23 November 2018.

 13   Witness Statement of Mr Iain McKie dated 9 November 2018.

 14   Witness Statement of Ms Jessica Legault dated 9 November 2018.

 15   Witness Statement of Mr Adam Raz filed 23 November 2018.

 16   Witness Statement of Ms Rebecca Gilloran dated 9 November 2018.

 17   Witness Statement of Mr Damien Kanaghines filed 23 November 2018.

 18   Ibid.

 19   Ibid.

 20   Respondent’s Outline of Argument: Objections filed 23 November 2018 at question 5b.

 21   Ibid at question 5d.

 22   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p. 205.

 23   O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23]; citing Pawel v Advanced Precast Pty Ltd Print S5904 (AIRCFB, Polites SDP, Watson SDP, Gay C, 12 May 2000); Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645; ABB Engineering Construction Pty Ltd v Doumit Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 24   Barkla v G4S Custodial Services Pty Ltd[2011] FWAFB 3769 (Watson VP, O’Callaghan SDP, Cargill C, 8 July 2011) at [24]; citing O’Meara v Stanley Works Pty Ltd PR973462 (AIRCFB, Giudice J, Watson VP, Cribb C, 11 August 2006) at [23].

 25   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at p. 206.

 26   Australian Hearing v Peary [2009] AIRCFB 680 (Giudice J, Kaufman SDP, Larkin C, 28 July 2009) at [30].

 27   Doumit v ABB Engineering Construction Pty Ltd Print N6999 (AIRCFB, Munro J, Duncan DP, Merriman C, 9 December 1996).

 28   [2009] AIRCFB 680, 28 July 2009 (Giudice J, Kaufman SDP, Larkin C).

 29   [2010] FWA 9356.

 30   See for example Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.

 31   Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12]; citing Minato v Palmer Corporation Ltd (1995) 63 IR 357 at pp. 361‒362; citing Sovereign House Security Services Ltd v Savage [1989] IRLR 115, 116 (May LJ).

 32   Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at [12],; citing Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 at p. 191.

 33   Ibid.