Danny Page v Independent Pub Group T/A Liquor Lads

[2013] FWC 8121

[2013] FWC 8121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Danny Page
v
Independent Pub Group T/A Liquor Lads
(U2013/10734)

SENIOR DEPUTY PRESIDENT O’CALLAGHAN ADELAIDE, 16 OCTOBER 2013

Application for unfair dismissal remedy - termination at the initiative of the employer.

[1] On 20 June 2013 Mr Page lodged an unfair dismissal application pursuant to section 394 of the Fair Work Act 2009 (the FW Act), with respect to the termination of his employment with Independent Pub Group Pty Ltd trading as Liquor Lads or Independent Pub Group (IPG). The application was not settled through the Fair Work Commission (FWC or the Commission) conciliation process and was referred to me for determination on 7 August 2013.

[2] At a directions conference on 28 August 2013 both parties confirmed that they sought to be represented through grants of permission. IPG confirmed that it agreed that the application was lodged within time, there were no genuine redundancy issues and IPG is not a small business. Whilst there was no dispute that Mr Page was a person protected from unfair dismissal, IPG disputes that he was dismissed at the initiative of the employer. I have initially considered this issue in the context of the evidence before me.

[3] The application was the subject of a hearing on 2 and 3 October 2013. Mr Page was represented by Mr Knox as agent, and IPG by Mr Spargo, of counsel. Permission was granted pursuant to s.596(2).

[4] Mr Page was engaged as a regular casual employee from 2 February 2011. He primarily undertook Bottle Shop management duties. At the time of the termination of his employment, Mr Page was the Retail Manager at the Seaford Hotel Bottle Shop.

[5] Mr Page had raised a concern with respect to his pay rate in late 2012 or early 2013. While the circumstances associated with his complaint, its timing and the extent to which it was relevant to the cessation of his employment are disputed, Mr Page was paid an amount of back pay by IPG.

[6] In May 2013 IPG managers, Mr Hill and Mr Mitchell met with Mr Page over concerns about a decline in sales revenue in the Bottle Shop following the opening of a competitor store. Specific written instructions were later given to Mr Page. The extent to which these instructions constituted a warning or were reasonable in all the circumstances is disputed.

[7] Mr Page attended a corporate golf day in May 2013. He was subsequently advised that he should have obtained prior permission before doing so. The extent to which this was relevant to the termination of his employment is a matter in dispute.

[8] At a regular telephone conference with other Retail Managers, Mr Page was asked about his stores’ sales performance. IPG assert that Mr Page used obscene language in this conference.

[9] Mr Hill and Mr Mitchell subsequently visited the Seaford Hotel Bottle Shop and spoke with Mr Page. The content and the nature of this discussion is disputed, but it concluded with the cessation of Mr Page’s employment.

The evidence

[10] Mr Page’s evidence went to his employment history, including his employment with IPG and to the concerns he raised relative to his rate of pay, working conditions at the Bottle Shop and issues that arose relative to his employment.

[11] Mr Page’s evidence was that, on 10 May 2013 Mr Mitchell and Mr Hill issued him with instructions about the operation of the Bottle Shop. These instructions involved a reduction in staffing numbers and requirement that he undertake price checks at competitors’ stores. Mr Page’s position was that certain of these instructions represented unreasonable requirements.

[12] Mr Page’s evidence was that the Seaford Hotel Manager, Mr Schiller, was aware of his proposed attendance at a corporate golf day on 13 May 2013 and that he understood this attendance was agreed. In this respect the direct management authority held by Mr Schiller has not been made clear to me but I have taken it that this authority was limited. Mr Page’s evidence was that on the following day Mr Mitchell attended the Bottle Shop and advised that he had not been authorised to attend the golf day. Mr Page was subsequently advised that "the golf day issue will be forgotten". 1

[13] Mr Page’s evidence was that on 17 May 2013 he was given a letter 2 which purported to detail the matters discussed at the 10 May 2013 meeting and that this letter concluded with advice that:

“I consider the decline in retail sales at the Seaford Tavern very serious. Please be aware that any further unacceptable personal performance and the non-compliance of essential tasks and responsibilities may result in disciplinary action that could lead to the change or termination of your employment.” 3

[14] Mr Page’s evidence went to the telephone conference with the IPG Retail Managers on 28 May 2013. His evidence was that he appropriately responded to the matters discussed. Mr Page denies that he swore in that conference.

[15] Mr Page’s evidence was that on 30 May 2013 Mr Mitchell and Mr Hill came into the shop and commenced a discussion which extended to insisting that he was not good enough to undertake the job and should leave. He asserts that the discussion concluded with him being dismissed by Mr Mitchell. Mr Page’s evidence then went to his attempts to mitigate his losses subsequent to the termination of his employment.

[16] Attached to Mr Page’s witness statement is a statutory declaration made out by a Mr Lewis who also worked at the Seaford Hotel at that time. In this statement Mr Lewis asserts that he was aware that Mr Page was going to be dismissed some two days before 30 May 2013. Mr Lewis does not detail the source of this information. I understand Mr Lewis now resides some distance from Adelaide. Nevertheless he was not called to give evidence and I have placed limited reliance on this statement.

[17] The evidence of Mr Hill went to his overall cordial relationship with Mr Page and his reservations about Mr Page’s management skills as distinct from his work ethic. Mr Hill’s evidence went to his attempts to address these concerns with Mr Page through instruction and on-the-job training.

[18] Mr Hill's recollection of the meeting he and Mr Mitchell had with Mr Page on 10 May 2013 was that it was an encouraging meeting and that whilst Mr Page did not meet all of the targets set, his work performance subsequently improved.

[19] Mr Hill said that, at the regular telephone conference with Retail Managers on 28 May 2013, Mr Page was not able to answer the questions he put to each of the other Retail Managers. Mr Hill then understood Mr Page to say "fucking cunt". When questioned, Mr Page said he was talking with Mr Schiller. Mr Hill subsequently sought confirmation of this from Mr Schiller who was also a participant in the conference. Mr Schiller advised that he hadn't heard the comment as he had been serving customers for much of that time.

[20] Mr Hill’s evidence went to his, and Mr Mitchell’s meeting with Mr Page at the Bottle Shop on 30 May 2013.

[21] Mr Mitchell’s evidence went to his discussions with Mr Page in late 2012 or early 2013 when Mr Page complained about his pay rate.

[22] Mr Mitchell recounted his recollection of the meeting on 10 May 2013. His evidence was that this meeting was directed towards assisting Mr Page to meet the IPG objectives.

[23] Mr Mitchell’s evidence addressed Mr Page’s attendance at the golf day and the extent to which he did not regard that issue as particularly significant.

[24] Mr Mitchell’s evidence was that when he was advised of the allegation that Mr Page had sworn in the telephone conference on 28 May 2013 he checked with two other participants in this conference who confirmed that Mr Page had in fact used those words. Notwithstanding this, Mr Mitchell’s evidence was that he met with Mr Hill and Mr Page on 30 May 2013 in order to understand Mr Page’s situation. Mr Mitchell then recounted his understanding of this meeting.

[25] Mr Kaderes is the IPG Executive Chef. His evidence was that he was a friend of Mr Page and used to drive him to work on occasion, including 30 May 2013. Mr Kaderes' evidence was that some days before this he had heard rumours to the effect that Mr Page was in trouble because of his performance but that he was not aware of any disciplinary action or plans to terminate Mr Page’s employment before 30 May 2013.

[26] Mr Kaderes and Mr Page talked by telephone briefly after the cessation of Mr Page’s employment and then exchanged somewhat acrimonious text messages in which Mr Page expressed disappointment that, if Mr Kaderes had known that he was going to be dismissed before 30 May 2013, he should have told him of this. Mr Kaderes responded by saying that he did not know what was happening and did not know all of the facts.

Findings

[27] Section 385 establishes that a dismissal is an essential prerequisite for an unfair dismissal application or finding to that effect.

[28] Mr Page’s primary position is that Mr Mitchell dismissed him on 30 May 2013. I have initially considered this position. If Mr Page was dismissed on 30 May 2013 the fairness of that dismissal would need to be assessed. Mr Page’s secondary position is that IPG's actions over a considerable period of time, and culminating with the meeting on 30 May 2013, left him with no option other than to resign.

[29] IPG dispute both propositions.

[30] Before considering these arguments I have made findings about specific incidents on the evidence before me.

The Backpay Incident

[31] Mr Page initially worked at the IPG Crown Inn. He was promoted to manage that Bottle Shop in late 2011. He was transferred to the larger Seaford Hotel Bottle Shop around October 2012.

[32] In late 2012 Mr Page became concerned about his pay and sought that this be addressed. He subsequently raised the matter with Mr Mitchell. I have concluded that, in this discussion Mr Mitchell chastised Mr Page for the manner in which he raised the issue but that Mr Mitchell undertook to investigate the complaint. Mr Mitchell did that: back payments were determined to be due, and were made to Mr Page. I do not dispute that Mr Page’s evidence is that he was not given formal pay advice to this effect and agree that this may in fact be correct.

The Seaford Hotel Bottle Shop Performance

[33] There is no dispute that the sales performance of Seaford Hotel Bottle Shop was impacted by the general retail climate in early 2013 and by the opening of a new nearby competitor.

[34] There is similarly little dispute that the Seaford Hotel Bottle Shop is the largest IPG shop in the area and often holds stock which is transferred on request to other IPG stores. This transfer arrangement gives rise to the preparation of necessary stock control documentation.

Computer Access

[35] The Bottle Shop is some 60 metres from the Seaford Hotel. The Bottle Shop does not have its own computing facility and Mr Page was required to go to the Hotel to enter stock, stock transfer, sales and competitive pricing information onto that hotel computer.

[36] Mr Page asserts that this represents an inefficiency. In this respect he may well be correct but I have concluded that the absence of a computer was not the cause of the cessation of his employment. I have noted that Mr Hill, as the previous Seaford Hotel Bottle Shop Manager similarly did not have access to a computer in the shop and that various other stores do not have computing facilities.

Mr Page’s work hours

[37] I accept the evidence of Mr Page that he regularly worked hours in excess of his roster so as to undertake his tasks. I note that this appears to be consistent with the evidence of Mr Mitchell and Mr Hill to the effect that they had a high regard for Mr Page’s work ethic.

Meeting of 10 May 2013

[38] Mr Mitchell, Mr Hill and the Seaford Hotel manager, Mr Schiller, met with Mr Page on 10 May 2013. I accept the evidence of Mr Hill and Mr Mitchell to the effect that this meeting was primarily a result of Mr Hill's and the National Retail Manager, Mr Curnow’s concerns that Mr Page was not undertaking all of the necessary Bottle Shop management functions. Mr Hill’s evidence detailed his concerns 4 in this respect.

[39] I have concluded that the meeting was positive and was not conducted in the manner of a disciplinary meeting but rather was directed toward helping and assisting Mr Page work in the manner expected of him. The meeting did not discuss sanctions but was directed at what management tasks were expected of Mr Page and how these could, and should be done.

[40] I have concluded that Mr Hill was closer to the detail of these approaches than Mr Mitchell. The specific tasks expected of Mr Page included price checks in local competitor stores and I have accepted the evidence of Mr Hill that he was aware that Mr Page did not drive and he had earlier advised Mr Page to arrange for other people to complete or assist him in this task.

The golf day

[41] I have accepted Mr Page’s evidence that he had spoken with Mr Schiller about his attendance at this golf day and that he understood that he had permission to attend. I also accept that Mr Page’s work did not suffer as a result of his attendance.

17 May 2013

[42] On 17 May 2013 Mr Schiller gave Mr Page a letter written by Mr Mitchell which summarised the matters discussed on 10 May 2013. I accept that this letter identified tasks which were generally consistent with the functions undertaken by other IPG Bottle Shop managers but that Mr Page considered that it contained some inaccuracies and inconsistencies. The letter concluded on the basis that if Mr Page did not meet those expectations his employment could be terminated. I have concluded that this phrase places a clear performance connotation on the letter and also accept that it, and Mr Schiller's comments when he handed the letter to Mr Page, were disconcerting to him.

[43] I have accepted Mr Page’s evidence that he understood that Mr Schiller was going to follow up certain elements of the letter with Mr Mitchell. I note that Mr Schiller's evidence may have assisted either party but that neither party called him. Hence I am not able to draw any adverse inference from this. I have, however, noted that Mr Page had the opportunity to raise the issues in this letter with Mr Mitchell or, perhaps even more appropriately, with Mr Hill, but that he did not do so.

The 28 May 2013 Telephone Conference

[44] I have addressed this issue later in this decision but note that I have concluded that Mr Hill's concerns about Mr Page’s language gave rise to the meeting on 30 May 2013.

Post Termination Discussions

[45] I have concluded that, whilst on his way home Mr Page had a brief telephone discussion with his friend Mr Kaderes but that some days later he was given to understand that Mr Kaderes was aware that he was to be dismissed on 30 May 2013.

[46] I have accepted the evidence of Mr Kaderes to the effect that he was not aware that Mr Page was to be dismissed. Given Mr Kaderes’ job function I am satisfied with his evidence that he was not aware of any plans to dismiss Mr Page.

Was Mr Page dismissed on 30 May 2013?

[47] I have concluded that Mr Page was not dismissed on that day. There are a number of reasons for that conclusion. Firstly, the evidence of Mr Mitchell and Mr Hill is clearly consistent and is, in my view, more credible than that of Mr Page.

[48] I have concluded that Mr Mitchell and Mr Hill attended the Bottle Shop and spoke with Mr Page as he stood at the counter.

[49] I have concluded that Mr Mitchell and Mr Hill had no intention or expectation of dismissing Mr Page at this discussion. Mr Mitchell asked if Mr Page had sworn in the telephone conference. Mr Page denied this but then conceded that he was frustrated and regarded himself as being "bullied" and "picked on". The discussion then turned to Mr Page’s ability to undertake specified management tasks. I have concluded that Mr Page said words to the effect that "if you don't think I'm good enough for the job I will go". 5 Mr Mitchell then confirmed that IPG wished to work with Mr Page on a strategy to address his concerns but Mr Page repeated that he would go.

[50] Mr Page then left the Bottle Shop. He had a further brief discussion with Mr Mitchell about keys.

[51] Had Mr Mitchell intended to dismiss Mr Page, I think it highly unlikely that this would have occurred in the Bottle Shop with the likely intrusion of customers.

[52] I am satisfied that Mr Mitchell and Mr Hill were endeavouring to work with Mr Page to address their concerns and am not satisfied that the matter was treated as a disciplinary event with the intended possibility of termination of employment.

[53] Mr Mitchell’s evidence indicates that he may have thought Mr Page would have been better off returning to a general sales function, but there is no evidence that this view was communicated to Mr Page.

[54] I accept that Mr Page was frustrated but do not accept that he was dismissed on 30 May 2013. Mr Page resigned his regular casual employment.

Was Mr Page forced to resign?

[55] Section 386 of the FW Act states:

“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.”

[56] The concept of termination at the initiative of the employer has been a core element and an essential prerequisite for unfair dismissal for many years. Whilst it was determined under earlier legislation, a Full Bench of the Commission in O'Meara v Stanley Works Pty Ltd 6 summarised the approach to this concept in the following terms:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly 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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[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.” 19 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.”

(references removed)

[57] In Australian Hearing v Peary 7 a Full Bench stated:

“[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.”

[58] While the legislation under consideration in both of these matters has been replaced by the Fair Work Act I consider those observations remain apposite.

[59] The essential issue is whether or not conduct on the part of IPG forced Mr Page to resign.

[60] I do not think this was the case for the following reasons.

[61] I am not satisfied that the exchange between Mr Mitchell and Mr Page in late 2012 relative to Mr Page’s underpayment claim could reasonably have been taken to be anything other than a disagreement over the manner in which Mr Page made his request or demand. Mr Mitchell’s evidence in following up the claim and instructing that back-payments be made appears to me to be indicative of a reasonable approach.

[62] Mr Page has not established to me, subsequent behaviour by Mr Mitchell which appears to be vindictive or inappropriate or without foundation. Indeed, Mr Page’s appointment to the Seaford Hotel Bottle Shop management position and his involvement in a subsequent management retreat indicate that the underpayment issue was not held against him. With respect to that retreat, I am not satisfied that Mr Page’s evidence that the IPG owner looked at him in an "unwelcoming" manner 8 was a basis for a later conclusion that he had no option other than to resign.

[63] There is no evidence that indicates that Mr Page was placed in the Seaford Hotel Bottle Shop management position so that he could then be set up for failure. In fact the contrary position appears to apply in that he was highly regarded for his work ethic by both Mr Hill and Mr Mitchell.

[64] Whilst it was not argued to me, I am not satisfied that the training assistance provided to Mr Page, primarily by Mr Hill, was delivered in a manner which Mr Page could reasonably have taken to be part of a pattern of actions designed to make him resign. Indeed, the absence of any formal disciplinary action taken by IPG indicates that there was no consideration of termination of Mr Page’s employment.

[65] The meeting on 10 May 2013 appears to me to have had the objective of providing guidance and instruction to Mr Page in the context of declining store sales. Again, I am not satisfied that this meeting was conducted as a disciplinary interview such that Mr Page could reasonably have concluded that his continued employment was at immediate risk.

[66] It seems clear to me that the advice provided to Mr Page on 15 May 2013, that his attendance at the golf day would not be further pursued, put that matter to rest and hence it could not form part of a pattern of behaviour that forced him to resign.

[67] The letter, dated 10 May 2013 but ultimately only given to Mr Page on 17 May 2013 represents instructions to Mr Page which were generally consistent with the meeting of 10 May 2013. That letter invited Mr Page to further discuss roster issues with Mr Hill or Mr Mitchell. I do not see anything in that letter which would inhibit or restrict Mr Page from directly raising concerns with either manager. I accept Mr Page’s evidence that he understood that Mr Schiller was going to seek to clarify certain issues with Mr Mitchell but, at the same time, Mr Page could have sought to do that at any time, including on 30 May 2013. In reaching this conclusion I have taken into account Mr Page’s evidence that Mr Schiller observed that he thought IPG "had it in for him". 9 Again I note Mr Schiller was not called to give evidence in this matter. The concluding reference in that letter to possible termination of employment in the event that Mr Page did not complete essential tasks is somewhat discordant and indicates that the letter represented a warning. As such it is inconsistent with the IPG Employee Handbook.10 If that statement was relied upon as the basis for IPG's termination of Mr Pages’ employment, it could clearly give rise to questions of unfairness. However, I cannot conclude that a single and non-specific warning advice was part of a pattern of behaviour that left Mr Page with no option other than to resign some two weeks later.

[68] I am inclined to the view that, at the telephone conference on 28 May 2013 Mr Page used the words "fucking cunt". In this respect I prefer the evidence of Mr Hill and Mr Mitchell to the extent that those words were actually used. I am satisfied that the words were not a response to any IPG conduct and those words may, of themselves, have represented a valid reason for the termination of Mr Page’s employment.

[69] IPG was entitled to investigate this matter. Had that investigation been a formal disciplinary action, the process in the Employee Handbook would have been appropriate. However, on the evidence before me, the IPG actions in visiting the Bottle Shop were not of the character of a formal disciplinary interview. The discussions in the Bottle Shop clearly would have had to have been suspended in the event that a customer entered the shop. Mr Mitchell did not pursue the swearing allegation and I am satisfied that his questions were directed at trying to establish the cause of Mr Page’s expressed frustration. Secondly, Mr Mitchell’s evidence was that in the course of the discussion on 30 May 2013 he said:

“I then asked Danny “what can we do to remedy your frustrations?” Danny replied “well, if you don’t think I’m good enough for the job, I will leave”.

I said to him “Danny that’s not what we’re here to do. I’m here to help. I want to understand”. I explained to him that he was good at certain things but that we needed him to be good at the other tasks we had talked about. I said “What can I do”?

Danny again replied “if you don’t think I’m good enough, I’ll go”.

I said “that’s not what I am here to do but if you don’t think you’re capable of doing the job or are not happy in it then you should say so.” I asked this because I thought it might prompt Danny to ask to go back to working as a retail worker, rather than a manager - but he did not. I said to Danny “we need to find a solution which prevents all this from happening again”.”  11

[70] I do not consider that the discussion of 30 May 2013 left Mr Page with no option other than to resign.

[71] I have considered Mr Page’s allegation that Mr Kaderes knew of the IPG intention to dismiss him some days previously. I am not satisfied that Mr Kaderes’ evidence establishes this and do not consider that a rumour that Mr Page was in trouble with respect to his performance establishes the source or the veracity of that rumour.

[72] I have considered Mr Mitchell’s evidence that he authorised the production of a separation certificate for Mr Page which specified that his employment concluded because he was unsuitable so as to assist Mr Page obtain Centrelink benefits. This occurred after 30 May 2013 and cannot form a basis for Mr Page’s assessment that he had no option other than to resign.

[73] I am not satisfied that the evidence before me establishes that Mr Mitchell or IPG took actions designed to force Mr Page to relinquish his Bottle Shop manager job.

[74] I have accepted Mr Mitchell’s evidence 12, in cross examination with respect to the 30 May 2013 discussion:

“Mr Mitchell: I wanted to understand the triggers, I wanted to understand and hear what may have caused it.

Mr Knox: So why didn’t you give Danny the chance to get his thoughts together and meet you the next morning?

Mr Mitchell: Don’t know.

Mr Knox: Do you think that would have been fair?

Mr Mitchell: Maybe.

Mr Knox: By that stage had you decided it would be better if he went back to being a general retail employee?

Mr Mitchell: No.

Mr Knox: You said you had it in the back of your mind I think at 26, some time earlier.

Mr Mitchell: That may eventuate.

Mr Knox: I put it to you, you hoped he would ask to be demoted, that he would ask you to demote him.

Mr Mitchell: One outcome I had in my mind was that he might say ‘look I can’t do this’.

Mr Knox: I put it to you that you were putting pressure on him by virtue of Exhibit A5 and the meeting of the 10th to put him in that frame of mind.

Mr Mitchell: I deny that.”

[75] I have noted that neither Mr Mitchell nor Mr Hill sought to invite Mr Page to retract his resignation. In this respect I have noted the Full Bench decision in Ngo v Link Printing Pty Ltd. 13 I do not consider that, given the circumstances of the meeting on 30 May 2013 and Mr Page’s repeated assertions that he was leaving, the situation was sufficiently ambiguous that it was necessary that IPG invite Mr Page to review that resignation decision.

[76] It may be that the issues which IPG had with respect to Mr Page’s work in the Bottle Shop could have been better handled and, if so, Mr Page may not have resigned. However that does not establish that Mr Page was forced to resign. On all of the evidence before me I am not satisfied that any individual event or any combination of the actions taken by IPG or its managers put Mr Page in a situation where they had the probable result of bringing the employment relationship to an end or force him to resign such that he was dismissed consistent with s.386.

[77] Accordingly, the application itself must be dismissed. An Order [PR543404] to this effect will be issued.

Appearances:

A Knox representing Mr Page.

W Spargo counsel for Independent Pub Group T/A Liquor Lads.

Hearing details:

2013.

Adelaide:

October 2, 3.

 1   Exhibit P2, para 54

 2   Ibid, attachment Exhibit A5

 3   Ibid, attachment Exhibit A5, last para

 4   Exhibit I4, para 6

 5   Ibid, para 32

 6   PR973462

 7   [2009] AIRCFB 680

 8   Transcript sound file, from approximately 11.30am, 2 October 2013

 9   Ibid, from approximately 12:00pm

 10   Exhibit I2, RM3

 11   Exhibit I2, paras 41 - 44

 12   Transcript sound file, from approximately 4.05pm, 2 October 2013

 13   Print R7005

Printed by authority of the Commonwealth Government Printer

<Price code C, PR543403>