Dale Smith v The Trustee for the R and L Napier Trust T/A Kyabram Bakery Co
[2011] FWA 7507
•23 NOVEMBER 2011
[2011] FWA 7507 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Dale Smith
v
The Trustee for The R and L Napier Trust T/A Kyabram Bakery Co
(U2011/5746)
COMMISSIONER LEE | MELBOURNE, 23 NOVEMBER 2011 |
Application for unfair dismissal remedy.
[1] This matter involves an application under section 394 of the Fair Work Act 2009 (the Act) by Mr Dale Smith (the Applicant) for relief from unfair dismissal. The respondent employer is The Trustee for the R and L Napier Trust trading as Kyabram Bakery Co (the Respondent). The Applicant was employed by the Respondent from July 10 2007. 1 Mr and Mrs Napier are the owners/operators of the Respondent.
[2] A conciliation was conducted by a Fair Work Australia conciliator however the matter was not settled. The matter was listed for an extension of time hearing before Deputy President Hamilton on Wednesday 22 June 2011. His honour found the application was within time. 2
[3] The matter was then listed for arbitration/jurisdiction hearing before me. The hearing was held in Echuca on 26 October 2011. Mr Pinchin was granted permission to appear for the Applicant. Mr Duc of the Baking Manufacturers Industry Association of Australia respresented the Respondent. Mr Smith gave evidence on his own behalf. Mrs L Napier, Mr R Napier and Mr M Power gave evidence for the Respondent.
[4] There was a difference of opinion between the the representatives of the Applicant and the Respondent as to whether the matter was listed for arbitration on the merits as well as jurisdiction. I determined during the hearing on 26 October that the proceedings would be restricted to a consideration and determination of jurisdiction at first instance.
The issue for determination:
[5] The issue in dispute in this matter is whether the Applicant resigned from his employment or whether he was terminated on the employers initiative. If there is no dismissal within the meaning of the Act then Fair Work Australia has no jurisdiction to deal with the application.
Legislation
[6] The Act states:
“385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
386 Meaning of dismissed
(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.”
[7] The Applicant says he was dismissed from his employment during a phone call on 10 February 2011 with Mrs Napier. The Respondent says that the Applicant resigned during a phone call with Mr Napier on 22 February 2011.
[8] Mr Pinchin submitted that the issue to be determined was restricted to whether termination was by way of dismissal or resignation. Mr Pinchen, in his closing submission, expressly ruled out constructive dismissal as an alternative finding stating “...it’s not a constructive dismissal, there was none, it’s did he resign or did he not, or was he terminated?” 3
The evidence and submissions
[9] I have considered all of the evidence in reaching a decision in this matter. However I will confine my consideration to the facts relevant to the issue to be decided.
[10] At approximately 1.10 pm on 10 February 2011, Mrs Napier answered the mobile phone of Mr Napier, the phone call being made by Mr Smith. 4 Mr Napier, a baker, was asleep according to Mrs Napier and she therefore answered his phone.
[11] Mrs Napier and Mr Smith both gave evidence about their telephone conversation on 10 February. There were no witnesses to the telephone conversation. While there are significant variations in the witnesses recollection of the phone call, it appears to be common ground that the discussion began in relation to a request by Mrs Napier that the Applicant attend a staff meeting. It is also common ground that the discussion became heated.
[12] Mrs Napier states that the conversation began with Mr Smith asking “Do I need to attend the staff meeting” and there then ensued a conversation about whether or not Mr. Smith needed to attend the staff meeting. Mrs Napier stated that his attendance was required as “...we had restructured our business and he would need to come along as a team building event”. 5
[13] Mr Smith stated that he told Mrs Napier he was unable to attend the staff meeting as he needed to look after his son. 6 Mrs Napier’s evidence is that Mr Smith never said he was not coming and did not mention his son during the phone call.7
[14] There is some common ground that Mrs Napier made a reference to a four week period. However, there is a significant difference between the two witnesses as to whether Mrs Napier gave Mr Smith four weeks notice and terminated his employment or, in the alternative as stated by Mrs Napier, she suggested that Mr Smith take four weeks to find work elsewhere.
[15] According to Mrs. Napier;
I said to him :“If this is how you feel about me then would you like four weeks to find work elsewhere?”.
He yelled back at me: “Are you sacking me” 8
It was so loud that I had to pull the phone away from my ear. 9
I replied: “No”. 10
[16] According to Mr. Smith’s recollection of the call;
“Her precise words were, “you can consider yourself on four weeks’ notice as of from now”. I asked her “did you just sack me?” and she unequivocally responded “yes”. 11
[17] Mrs Napier stated that she tried to call Mr Dale back at 1.13 pm but there was no answer. 12 Mr. Smith stated that he was unable to take the call as he was at a doctors surgery.13
[18] What was actually said in the 10 February phone conversation is critical to the determination in this matter. However, evidence was given about a number of events and conversations that followed the conversation that provide context and may provide some assistance in determining what was actually said between Mr Smith and Mrs Napier.
[19] There were a number of exchanges, mostly text message and voicemail between Mr Napier and Mr Smith that occurred after the heated phone call. At 3.53pm 10 February 2011, Mr Napier called Mr Smith to discuss the phone conversation and the call went to message bank. The message Mr Napier left was “I don’t need you to come to work Friday morning and I will see you Wednesday.” 14
[20] At 4.04pm, Mr Napier sent a further text message saying, “Dale, after not being able to contact you over the phone, just letting you know that I won’t be needing Friday morning and will be in touch”. 15
[21] Mr Napier then states that Mr Smith called back leaving a voice mail message saying “I wasn’t coming in anyway and I have a doctor’s certificate for stress leave, and I don’t know about Wednesday”. 16 Mr Napier stated Mr Smith also said words to the effect: “I’m not doing it anymore”.17
[22] At 6.04 pm on 10 February 2011, Mr Smith stated that he received a text from Mr Napier denying that he had been sacked. 18 On Mr. Smiths evidence, he ”laughed at” the text message because “someone is lying to someone”.19 Mr Smith did not dispute that he received a text message from Mr Napier denying that he had been sacked.
[23] At 11.10am Friday 11 February 2011, Mr Napier sent a text message to Mr Smith confirming that he had not been sacked. The text message stated “Dale you have not been told you where sacked. Need to know how long certificate is for, talk to you tomorrow”. 20
[24] At 1.11pm Friday 11 February 2011, Mr Napier rang Mr Smith, again saying that he had not been sacked. Mr. Dale replied “I have been given four weeks notice”. 21 There was then further conversation not relevant to this consideration.
[25] At 4.04 pm 11 February 2011 Mr Smith called Mr Napier, the call going to message bank. Mr Napier stated that in the message, Mr Smith “asked for a separation certificate” and stated that “there was no way he could be sacked for not attending an unpaid staff meeting and that centre link needed the certificate and also that Fair Work Trade was looking into it. He also mentioned that he could not be sacked without one verbal and two written warnings”. 22
[26] At 11.15am Saturday 12 February, Mr Smith rang Mr Napier and Mr Napier claims Mr Smith said “Russell can I drop off my doctors certificate and collect my separation certificate”. 23 Mr Napier states that Mr Smith again said that he couldn’t be sacked over the phone and that Mr Napier replied that “You haven’t been sacked Dale”24 Mr Napier claims that he then proposed a meeting on Sunday 13 February at 10 am to “try and work this misunderstanding out”25 Mr Napier states that the meeting was arranged and Mr Smith replied “I’m fine with that, and it’s illegal to sack someone over the phone”.26 Mr Napier states he replied with “you have not been sacked... tomorrow you bring a person and we can rationally talk this out”.27 Mr. Napier spoke of “getting a couple of independent people...[to] try to talk this out”.28
[27] According to Mr Smith, he called Mr Napier on 12 February and wanted to meet. Mr Smith stated in evidence, “I instigated the meeting. I organised it with Russell, and we organised it and and had the meeting on the Sunday. It wasn’t for me, we wouldn’t have had any meeting whatsoever”. 29 Mr Smith stated that he wanted that meeting to sort something out amicably. Under examination, he stated, “To see where Russell stood, and see where my job stood and stuff like that.”30
[28] While there is contradictory evidence about who called the meeting, there appeared a shared sense of trying to resolve the employment issue between Mr Napier and Mr Smith reflective of what appeared to me be an historically good employment relationship between the two men.
[29] The meeting of Sunday 13 February 2011 was recorded on a mobile phone by consent between the parties. 31 There is a transcript of that recording which was tendered. The recording was played for the Tribunal during proceedings. The recording showed that the transcript of the meeting was largely accurate.
[30] The meeting was attended by Mr Smith, Mr Napier, Mrs Napier and Mr Michael Power, who attended at the request of the Napier’s as a witness to the discussion.
[31] Mr Napier states that he asked Mr Smith “where is your friend” and Mr Smith replied “I thought you were arranging someone independent” 32 Mr Napier states that he offered for Mr Smith to get someone but that Mr Smith chose to go ahead without one.33. At the outset of the meeting, Mr Napier spoke about possible misunderstandings in terms of the phone call of 10 February 2011, and of wanting to know “where Dale was situated and where his direction was wanting to go”.34
[32] The meeting deteriorated fairly quickly and lasted only 5 minutes or so. It is clear in the recording that Mr Smith became very agitated during the meeting. I did not detect in the recording any bullying behaviour from Mr or Mrs Napier. I note the claim by Mr Smith that part of the recording has been deleted and that the bullying behaviour was found in that part, however there was no evidence to support that contention. Mr Smith says that he stated at the conclusion of the meeting, “... I’m over it”. 35 In cross examination he stated that he said, “...I’m out of here”.36 Mr Smith claims that he was extremely intimidated and anxious, had heart palpitations so did not stay more than 5 minutes.37 Mrs Napier claims that Mr Smith said at the end of what was a very heated meeting on that Sunday, “I’m over it.. I’m out”.38 Mrs Napier then claims to have had no further conversations with Mr Smith.39
[33] Mr. Power provided evidence that he attended the 13 February meeting at the request of his friend Mr Napier as witness to the discussion. The evidence of Mr Power, of his recollection of the Sunday bakery meeting, is broadly consistent with the recording played during the proceedings. Mr Power stated in answer to a question from myself about what he understood as the purpose of the meeting from discussions with Mr Napier, that Mr Napier “...explained there had been a misunderstanding on the phone over whether Dale was still employed or not and they wanted to sit down with Dale and try and sort it out rather than letting it escalate and go further so they could get back to work basically.” 40
[34] At 12.44pm Sunday 13 February 2011, a further text message was then sent by Mr Smith to Mr Napier. The message from Mr Smith was as follows:
“Hi Russ, sorry it did not go as planned. Could you please send me a copy of the recording as you said you would. As I do not believe that this can be reconciled now. So I must take other avenues to protect my rights which are legislated. I also did 4 hrs wed 4.5 Thursday. Which I did not get to write in my book as I was not there on Friday. Its a pitty (sic) I did enjoy working with and for you. Could have all done without this”. 41
[35] At 1.10pm Tuesday 15 February Mr Smith called Mr Napier. Mr Napier states that Mr Smith “...kept going on about how Louise had sacked him and I replied that he wasn’t sacked”. 42 Mr Smith agreed that Mr Napier told him he was not sacked but that he continued to believe that he had been sacked by Mrs Napier.43
[36] At 9am on Tuesday 22 February, Mr. Smith rang on the bakery phone. 44 Mr Napier answered the phone. The accounts of Mr Smith and Mr Napier as to what was said during that phone call vary.
[37] Mr Napier states that Mr Smith asked for a further meeting. Mr Smith also sought a copy of the tape of the 13 February 2011 meeting. 45 Mr Napier indicated he had been advised by an IR person to not provide the tape and did not accept Mr Smith’s invitation to a further meeting referring to the failed meeting of 13 February 2011. In the course of that conversation, Mr Napier claims that Mr Smith said “I won’t be working for you anymore”46 Mrs Napier states that Mr Napier told her that Mr Smith had told him that he did not want to work for them anymore, that she considered that she should accept this resignation finally as this was the third time that he had resigned.47 A letter accepting his resignation and separation was then mailed to him.48
[38] In contrast, Mr Smiths evidence as to what occurred on 22 February was that he rang Mr Napier to request a recording of the meeting held on 13 February and that this request was refused by Mr Napier. Other elements covered in the conversation according to Mr Smith were his intention to lodge a workcover claim for bullying and harassment and an action for unfair dismissal against the bakery. 49 Mr Smith said in cross examination that he said, “I’ve been sacked, I will not be coming back to work for you, I’ve been sacked”.50 Mr Smith states that, “At no point during this conversation did I resign”.51
[39] I note that evidence was led about alleged statements made by Mr Smith that led to the involvement of the police. On this point I don’t believe that the evidence gives rise to any reliable findings on any relevant issue.
Consideration and Findings:
[40] On the key issue of what was said in the phone call of 10 February 2011, I must choose between the competing recollections of the conversation between the two key witnesses. While the recollections of Mrs Napier and Mr Smith differ, in my view the evidence of Mrs Napier is to be preferred. Her demeanour as a witness was generally consistent and credible. Importantly, Mrs Napier’s recollection of the phone call is more consistent with the events that transpired after the 10 February 2011 phone call.
[41] Mr Smith was a strident and forthright witness. However, I found Mr Smith at times to be quite agitated and evasive in some of his responses, particularly when explaining actions that he took after the phone call of 10 February 2011.
[42] I find that there was a misunderstanding arising from the heated phone call that took place on 10 February 2011 leading to Mr Smith forming the view that his employment had been terminated. While I do believe that Mr Smith misunderstood Mrs Napier and formed a view that his employment was terminated, that does not mean that he was in fact terminated at the initiative of the employer.
[43] A key factor in reaching this conclusion is that on a number of occasions after the heated phone call of 10 February 2011, it is not contested that Mr. Napier advised Mr. Smith, both verbally and by text message, that his employment was not terminated. Significantly, the first of these numerous reassurances was provided by text message on 10 February 2011 at 6.04pm, 5 hours after the phone conversation between Mr Smith and Mrs Napier. As noted earlier in this decision, Mr Smiths response to this message was to “laugh at” it “because someone is lying to someone”. Mr Smith did not respond to that text message stating he was not sacked despite his obvious concern and belief that his employment had been terminated. Two further reassurances were provided by Mr Napier on 11 February, the day after the phone call. Despite these reassurances and two others from Mr Napier on 12 and 15 February, Mr Smith continued to assert he had been sacked.
[44] It was clear from evidence that Mr Napier is the person Mr. Smith dealt with most frequently over the years as his employer. It also appears that the two men had a good working relationship. Mr Smith did not deal with Mrs Napier very often during his period of employment. According to Mrs Napier, “In general, Russell manages the production staff and I manage the sales staff. I never saw Dale very often and I rarely spoke to him as we work different shifts”. 52 Mr Smith agreed that he didn’t deal with Mrs Napier very much.53 Against this background I cannot discern a clear reason why Mr Smith should not have accepted Mr Napier’s reassurances that he had not been terminated and assumed that he was still employed at the bakery.
[45] The meeting at the bakery on 13 February 2011 requires some examination. While there was contradictory evidence as to who arranged the meeting, the overall conduct of the meeting is not consistent with the actions of employers who believe they have terminated an employee. I believe the meeting demonstrated a genuine attempt by Mr Napier to conduct an orderly conversation, to deal with possible misunderstandings and to attempt to rebuild relationships.
[46] I do need to deal with the valid point made by Mr Pinchin for the Applicant when he refers to the exchange at the 13 February 2011 meeting between Mrs Napier and Mr Smith which reads:
“Dale - I’m just going to go with the show because what what you’ve done is just wrong you can’t you can’t yell at people to start with no-one is allowed to yell at anyone in the work place we have more rights then we have ever had before in our life. I’ve been to the union...they wanted to walk in here on Friday just what you do you can’t do you just can’t go off not thinking and go well you’ve go 4 weeks notice on the phone what you’ve done...I’m stopping right there I don’t want to go no further then that cause that’s what you said last...And tell me why you sacked me
Louise - well for starters you asked did you need to turn up to the staff meeting and I said that it was a compulsory staff meeting..” 54
[47] Mr Pinchin argued that the fact that Mrs Napier did not immediately rebut the final contention of “tell me why you sacked me” suggests an acceptance from Mrs Napier that she believes she has sacked Mr Smith. I do not accept that conclusion. Mrs Napier’s response needs to be set against the wide ranging statement made by Mr Smith, the possibility Mrs Napier was dealing with one of the other components of Mr Smiths statement and the rather acrimonious and emotional nature of the meeting that was taking place. I also have to balance this exchange against the numerous occasions that Mr Napier assured Mr Smith that he had not been sacked, including on 15 February 2011, two days after the bakery meeting.
[48] As I have determined that Mr Smith was not terminated during the phone call of 10 February 2011, the remaining question for determination is did Mr Smith resign and if so at what point. The respondent argues that Mr Smith resigned on 13 February 2011 by his action in leaving the meeting at the bakery, making a statement upon leaving to the effect that he was “over it” or “out of here” and subsequently sending a text message stating that he did not believe that things could be reconciled. In the alternative, the Respondent argues that Mr Smith resigned in a phone conversation with Mr Napier on 22 February. The Applicant argues that he could not have resigned at either time as he considered that he had been terminated during the 10 February 2011 phone call, and is clear in his view that he did not resign during the phone conversation of 22 February 2011.
[49] I am not persuaded that Mr Smith resigned at the meeting of 13 February 2011. It is conceivable that his statement upon leaving the meeting to the effect of him being “over it” was a reference to the meeting itself. Moreover, Mr Napier gave no indication to Mr Smith during the phone conversation two days later on 15 February 2011 that he believes Mr Smith had resigned.
[50] As to the phone conversation between Mr Smith and Mr Napier on 22 February 2011 I note that there is contradictory evidence. Mr Smith stated in cross examination that he said, “I’ve been sacked, I will not be coming back to work for you, I’ve been sacked”. 55 Mr Napier claims Mr Smith said, “I won’t be working for you anymore”.56 While the accounts of what was said differ, it is clear that Mr Smith indicated on his own evidence that he did not intend to work for the bakery any longer. If it is the case that Mr Smith was continuing to refer to his belief that he was sacked, on the basis of my finding that he had not in fact been terminated, this belief was erroneous. In such circumstances, Mr Smith has indicated in unambiguous terms that he will not be returning to work at the bakery and the employer, consistent with the approach adopted in Kahn No v Linn Printing Proprietary Limited57, referred to by the Respondent, was entitled to accept this as a clear statement that Mr. Smith wished to resign his employment. On this basis I find that Mr Smith resigned from his employment with Kyabram Bakery on 22 February 2011.
Conclusion:
[51] As the termination of Mr Smiths employment was not at the initiative of the employer there is no jurisdiction to deal with this application. The application in this matter is dismissed.
COMMISSIONER
Appearances:
G Pinchin of A Whole New Approach Pty Ltd for the applicant
A Ducof Baking Manufacturers Industry Association of Australia for the respondent
Hearing details:
2011
Echuca
October 26
1 Statement of Louise Napier paragraph [3]
2 Transcript of proceedings before Deputy President Hamilton in Dale Smith v The Trustee for The R and L Napier Trust T/A Kyabrum Bakery Co, U2011/5746, 22 June 2011, PN162
3 PN755
4 Statement of Louise Napier [8]
5 PN140
6 Statement of Dale Smith [10]
7 PN171
8 Statement of Louise Napier [10]
9 Ibid [11]
10 Ibid [12]
11 Statement of Dale Smith [10]
12 Statement of Louise Napier [15]
13 PN588
14 Statement of Russell Napier [10]
15 Ibid [11]
16 Ibid [12]
17 Statement of Russell Napier [12] and [13]
18 Statement of Dale Smith [13]
19 PN599
20 Statement of Russell Napier [14]
21 Ibid [15] and [16]
22 Ibid [22]
23 Ibid [23]
24 Ibid [24]
25 Ibid [25]
26 Ibid [26]
27 Ibid [27]
28 PN432
29 PN530
30 PN604
31 Statement of Russell Napier [33] and [34]
32 Ibid [31]
33 Ibid [32]
34 Ibid [45]
35 Statement of Dale Smith [16]
36 PN673
37 Statement of Dale Smith [16]
38 Statement of Louise Napier [34]
39 Ibid [38]
40 PN97
41 Statement of Russel Napier, Annexure D
42 Ibid [66]
43 PN683-684
44 Statement of Russell Napier [75]
45 Ibid [79]
46 Ibid [81]
47 Statement of Louise Napier [44]
48 Statement of Louise Napier [45]
49 Statement of Dale Smith [20]
50 PN685
51 Statement of Dale Smith [20]
52 Statement of Louise Napier [5]
53 PN557
54 Statement of Louise Napier, Annexure C, page 3 of 5
55 PN685
56 Statement of Russell Napier [81]
57 PN705
Printed by authority of the Commonwealth Government Printer
<Price code C, PR516291>
0
0
0