Craig Stanley v Tasmanian Freight Services Pty Ltd

[2014] FWC 5495

[2014] FWC 5495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Craig Stanley
v
Tasmanian Freight Services Pty Ltd
(U2014/5994)

DEPUTY PRESIDENT WELLS HOBART, 12 AUGUST 2014

Application for relief from unfair dismissal – jurisdictional objection – alleged dismissal – resignation – existence of employer course of conduct – whether termination at the initiative of employer

Introduction

[1] Mr Craig Stanley was employed as a driver by Tasmanian Freight Services Pty Ltd (Tasfreight), a transport company, from approximately 28 March 2012 until 6 March 2014. Mr Stanley claimed that he had been unfairly dismissed by Tasfreight. Both parties were unrepresented.

[2] Tasfreight objected to Mr Stanley’s application on the grounds that Mr Stanley had resigned his employment in a phone call with the Operational Supervisor on 5 March 2014. Tasfreight, at the time of lodging it’s response to the unfair dismissal application, had 210 employees and therefore is not a small business employer.

[3] Mr Stanley claimed he did not resign his employment.

The Meaning of Dismissed

[4] The meaning of dismissed is found at s.386(1) of the Fair Work Act2009 (the Act) and states:

(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.

[5] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 – Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

• where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or



• where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

The evidence

[6] Mr Craig Stanley gave evidence in support of his case both by written statement 1 and oral evidence, together with text message exchanges.2 Mr Stanley was a truck driver working with Tasfreight from approximately 28 March 2012. Accordingly, at the time of his employment ending, Mr Stanley had fulfilled the minimum employment period prescribed in s.383 of the Act, namely six months.

[7] In his witness statement Mr Stanley discussed a workplace incident (the altercation) that took place on 5 March 2014 involving another employee of Tasfreight, Mr Kelvin Browning at the Tasfreight Depot. Mr Stanley stated there was a possible issue with an additional chemical being loaded onto his truck by Mr Browning, for delivery to the Huon Valley. Following the altercation, Mr Stanley had a discussion with Mr Craig Hales, the Operations Supervisor for Tasfreight and he also discussed the matter with Mr Bennett, the Acting Operations Manager.

[8] Mr Craig Hales, Operations Supervisor for Tasfreight, gave evidence both by written statement 3 and oral evidence. He stated that he spoke to Mr Stanley after the altercation and explained the need for Mr Stanley to deliver the stock to Huonville. Mr Hales denied that the additional stock was a chemical or that it posed any kind of hazard.

[9] In the conversation with Mr Darren Bennett in his office, it was Mr Stanley’s evidence that they discussed the altercation and that he stated to Mr Bennett that he had wanted to punch Mr Browning in the head. After calming down, Mr Stanley left Mr Bennett’s office and attended to his deliveries.

[10] Mr Darren Bennett, Acting Operations Manager for Tasfreight confirmed in his written statement 4 and oral evidence that he advised Mr Stanley he would discuss the altercation with Mr Browning and that he did so.

[11] During making his deliveries, Mr Stanley saw another Tasfreight truck (a semi) travelling toward Huonville. He said he phoned Mr Hales and asked him why the additional stock was not loaded on that truck. Mr Hales told Mr Stanley that it was not his (Mr Hales’) job to run the semi’s and that he had no knowledge of that truck’s movements.

[12] It was Mr Stanley’s evidence, and corroborated by Mr Hales that, during this phone call, Mr Stanley told Mr Hales words to the effect ‘I think you need to find another driver for this truck’. Mr Hales then said “So you’ve had enough?” Mr Stanley replied “Yes”. 5

[13] Asked by this Commission about his motivation for making those statements, Mr Stanley said he “…had had enough … Too many chiefs and not enough indians.” 6

[14] Relevantly, both Mr Hales and Mr Stanley said that Mr Hales advised Mr Stanley to see him on his return to the depot. When questioned as to why he advised Mr Stanley to do this, Mr Hales said it was because Mr Stanley had walked off the job a couple of times before and he wanted to discuss with him “what was the go” about his resignation.

[15] Mr Stanley stated that he was aware Mr Hales would have thought that he had resigned his employment. Mr Stanley said that on return to the depot he had calmed down and it was that by then not his intention to resign his employment. He attended to paperwork both sitting in his truck and in the office area, which took approximately 40 minutes. He said that Mr Hales did not approach him to discuss the matter so he left to collect his step daughter. Under cross-examination it was established that Mr Stanley ‘clocked off’ at 2.50pm. His normal hours of work are 7am to 3pm. Mr Stanley stated that in hindsight he should have approached Mr Hales prior to leaving to discuss their previous conversation.

[16] Mr Hales said that later that day he told Mr Bennett that Mr Stanley had resigned. This was corroborated by Mr Bennett.

[17] Mr Stanley said that he wished for some clear air at work, so the following day, 6 March 2014 at 7:17am, he sent a text message 7 to Mr Hales stating he would not be in to work.

[18] It was Mr Hales’ evidence that upon receiving the text message he advised Mr Bennett about it. Mr Bennett said he was on the phone when Mr Hales spoke to him about this and he was not able to say with any confidence whether he understood the approach from Mr Hales was about sick leave for Mr Stanley. Mr Bennett advised Mr Hales to request a doctor’s certificate for any sick leave, this being a requirement of Tasfreight ‘s head office.

[19] Mr Bennett stated that shortly thereafter he received a text message from Mr Stanley querying why a doctor’s certificate was needed for a single day absence. Mr Bennett replied via text advising that due to increasing sick leave absences, a certificate was required. It was Mr Bennett’s evidence that he then remembered that Mr Hales had advised him of Mr Stanley resigning the previous afternoon.

[20] At 10:39am on that day Mr Bennett sent Mr Stanley a text message (the acceptance text message) which said “Craig you give your notice to craig hales [sic] Wednesday after noon [sic] so we are not going to accept stress leave we don’t believe it’s legitimate.” Mr Stanley responded via text message which said “And no i didn’t give my notice to craig hales [sic], if i was to give my notice i would of told you as yiu [sic] are the acting manager.” Shortly thereafter Mr Stanley rang Mr Hales and enquired why he had told Mr Bennett that he had resigned. Mr Hales told Mr Stanley to come into the depot to discuss the matter.

[21] Mr Stanley attended the depot and met with Mr Bennett and Mr Hales in Mr Bennett’s office. Mr Stanley asked what was going on and said Mr Bennett advised him that he had spoken to Mr Kerry Gibson (the CEO of Tasfreight) and that Mr Gibson had said to let Mr Stanley go and they would see Mr Stanley in Court.

[22] When questioned by the Commission about his conversation with Mr Gibson, Mr Bennett initially denied having a conversation with another person about Mr Stanley that morning. He then confirmed he had a discussion with Mr Gibson but could not remember whether it was on 6 March 2014 or the following day. He later confirmed that it must have been the morning of 6 March, prior to Mr Stanley attending the depot.

[23] There was some dispute as to whether a telephone discussion took place between Mr Bennett and Mr Stanley on 6 March 2014, following Mr Bennett sending the acceptance text message. Mr Bennett said it was during this telephone conversation that Mr Stanley indicated he would be seeking an unfair dismissal remedy; that he (Mr Bennett) had referred this information to Mr Gibson; and this is what motivated Mr Gibson’s comment about seeing Mr Stanley in Court. Mr Stanley was adamant that he only had a phone conversation with Mr Hales on the morning of 6 March 2014.

Submissions

[24] Mr Geoffrey Lynd for Tasfreight made submissions to the effect that there had been a number of occasions on which Mr Stanley had walked off the job or threatened to resign and on this occasion Mr Stanley had resigned and the employer had accepted the resignation.

[25] Mr Lynd submitted that it was clear Mr Bennett was busy with work on the morning of 6 March 2014 and was probably unaware, on first consideration, that his direction for a doctor’s certificate involved Mr Stanley.

[26] Mr Stanley made no submissions, stating he was content to rely on the evidence presented.

Consideration

[27] In order for there to be access to a remedy to unfair dismissal, the employee must have been dismissed in accordance with s.386 of the Act. Accordingly, I am required to determine on the evidence whether Mr Stanley was dismissed at the initiative of Tasfreight or whether, if he resigned, he did so because he was forced to, due to conduct engaged in by Tasfreight.

[28] It is clear on Mr Stanley’s evidence that at the time of telling Mr Hales he should find another driver for the truck, he intended to resign his employment. His reasoning was that he had had enough of the workplace and how it was run. Mr Stanley was aware that Mr Hales would have understood his comments to mean that he had resigned. Upon return to the depot Mr Stanley did not attempt to retract his statement.

[29] Accordingly, I find that Mr Stanley resigned his employment with Tasfreight during his telephone conversation with Mr Hales in the afternoon of 5 March 2014.

Could Stanley withdraw his resignation?

[30] A previous Full Bench decision of the Australian Industrial Relations Commission in Canh K Ngo v Link Printing Pty Ltd (1999) 94 IR 375 (Ngo) is on point with the facts of this current case. In Ngo, the Full Bench per McIntyre VP, Marsh SDP and Harrison C, held at paragraphs [12] to [18]:

“[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:

“The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:

`In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ...

However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.’

Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:

`If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances’. Where `special circumstances’ arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.’

[13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo’s statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo’s resignation was really intended. Mr Ngospoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngosaid this.

[14] We have considered the evidence of Link’s witnesses as to their reaction to Mr Ngosaying that he resigned. Even if they did not believe Mr Ngowhen he said that he resigned, the fact remains that Mr Ngo did not tell Link, until the following day that he was “not resigning”.

[15] We have also considered the effect of Mr Corrigan’s words (as recorded in Mr Ngo’s statement) “Okay, you must give us a letter in writing, and give it to me tomorrow”. It was submitted by the appellant that a contract was formed under which Link agreed to accept the withdrawal of the resignation and the resignation would only take effect if it was submitted in writing. In our view, this submission cannot be sustained. There is, we think, nothing in the evidence to support the view that the brief reference to providing a letter created the contractual relationship contended by the appellant.

[16] The next point is whether Mr Ngowas entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].

[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd[1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110-111).

[18] In Mr Ngo’s case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngowas not entitled to withdraw his resignation on the day following the giving of it.

[31] Mr Hales was clear in his evidence that he wanted to confirm Mr Stanley’s resignation with him and that is why he asked Mr Stanley to see him back at the depot. Mr Stanley left the depot 10 minutes prior to his scheduled finish time and made no attempt to discuss the matter further with Mr Stanley. Upon returning to the depot and having cooled down, it was incumbent on Mr Stanley to retract the resignation he gave to Mr Hales before he left the workplace that day, particularly seeing Mr Hales had invited him to discuss the matter further.

[32] Similar to the circumstances in Ngo, assuming that Mr Stanley made his resignation to Mr Hales rashly or ‘in the heat of the moment’, he did not retract that resignation at a time when he had ‘cooled down’ and he had an opportunity to do so. Accordingly, it was not available to Mr Stanley to withdraw his resignation the following day as it was not retracted swiftly.

[33] Having regard to the facts in Mr Stanley’s case, it cannot be said, in my view that the termination of Mr Stanley’s employment was at Tasfreight’s initiative. It also cannot be said that, Mr Stanley resigned his employment because he was forced to do so because of conduct engaged in by his employer, Tasfreight.

[34] It is not necessary for me to consider whether a phone call took place between Mr Bennett and Mr Stanley on the morning of 6 March 2014 as it is not relevant having determined that Mr Stanley resigned his employment on 5 March 2014.

[35] However, it is necessary for me to address the text message exchange of 6 March 2014 between Mr Stanley, Mr Hales and Mr Bennett. I conclude that this exchange was far from good industrial practice and served to confuse Mr Stanley as to his employment status. Mr Stanley was seeking to clarify the status of his employment, albeit in an indirect fashion. I acknowledge that the Operations Manager, Mr Lynd was on leave at the time of Mr Stanley’s resignation; and that Mr Bennett was acting in the role. It is probable that this contributed to the inadequate handling of Mr Stanley’s resignation.

Conclusion

[36] I find that there was no termination of Mr Stanley’s employment pursuant to s.386(1), that is, Mr Stanley was not terminated on the employer’s initiative and was not forced to resign by any conduct of his employer. As a consequence, there has been no dismissal for the purposes of s.385 of the Act.

[37] The application for relief pursuant to s.394 of the Act is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr C Stanley, on his own behalf

Mr G Lynd,for the Respondent

Hearing details:

Hobart

2014

8 August

 1   Exhibit A1 – Witness statement of Craig Stanley

 2   Exhibit A2 – bundle of text messages

 3   Exhibit R1 – Witness Statement of Craig Hales

 4   Exhibit R2 – Witness Statement of Darren Bennett

 5   Transcript – Mr Hales and Mr Stanley

 6   Transcript – Mr Stanley

 7   Exhibit A2

Printed by authority of the Commonwealth Government Printer

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