Darren Vigfusson v Skycorp Investments Pty Ltd T/A Coventry Village

[2015] FWC 6061

[2015] FWC 6061

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Darren Vigfusson
v
Skycorp Investments Pty Ltd T/A Coventry Village
(U2014/15869)

COMMISSIONER WILLIAMS PERTH, 8 SEPTEMBER 2015

Termination of employment.

[1] This decision concerns an unfair dismissal remedy application by Mr Darren Vigfusson (Mr Vigfusson or the applicant) made under section 394 of the Fair Work Act 2009 (the Act). The respondent is Skycorp Investments Pty Ltd T/A Coventry Village (the respondent).

Background

[2] On 20 November 2014 by email the applicant advised the respondent that:

“I hereby give you notice I am now forced to end my employment with you.”

[3] In response to this application the respondent raised a jurisdictional objection that the applicant had resigned his employment, he was not terminated on the employer’s initiative and therefore he was not dismissed within the meaning of section 386 of the Act. Consequently the applicant is not able to make this application and the Commission should dismiss it for want of jurisdiction.

The evidence

[4] Having considered the evidence of the witnesses I make the following factual findings.

[5] The Coventry Village property is an area of 4½ acres in the suburb of Morley and encompasses 150 shops. The property is open seven days a week.

[6] The applicant was engaged by letter dated 16 April 2012. That letter of engagement identifies his duties and responsibilities as including:

“ All matters relating to the management of our property at Coventry Square, Morley.

• All other duties as reasonably required by the directors of the Strzelecki Group.”

[7] The respondent is one of the businesses which make up the Strzelecki Group.

[8] The letter of engagement does not include any title for the applicant’s role. The words Centre Manager are not found in the letter of engagement.

[9] Notwithstanding this I accept that the applicant during his employment was commonly referred to by others within the Strzelecki Group and others employed by the respondent and tenants within the Coventry Square complex, generally as the Centre Manager.

[10] The evidence is that the applicant had a business card which identified him as the Centre Manager. Separately Mr David Crash (Mr Crash), who was employed in early November 2014 also, had a card with the same title of Centre Manager.

[11] There is no evidence that the applicant was referred to by the respondent as the “sole” Centre Manager. Whilst the applicant’s witnesses Mr Pellegrino Coppola (Mr Coppola) and Ms Chloe Applebee (Ms Applebee) did accept this description I find it was in fact a self-serving title the applicant bestowed upon himself during these proceedings.

[12] During his period of employment the applicant had a number of other staff who reported to him from time to time.

[13] The applicant’s evidence was that Mr Greg Poland (Mr Poland) was in overall control of the business but that the applicant took instruction from Mr Mike Holtham (Mr Holtham) as Facilities Manager and from Mr Murray Archibald (Mr Archibald) as Manager of Commercial Projects. When Mr Holtham and Mr Archibald were on-site at Coventry Village they worked out of the same office area as the applicant.

[14] The applicant also tendered a statutory declaration from Ms Applebee. Ms Applebee had been employed with the respondent between April 2013 and 18 August 2014. Her employment had ended three months prior to the applicant’s resignation. Ms Applebee however was not present at the hearing and so the respondent was not able to cross-examine her. Accordingly I give little weight to her evidence which in any event was of only marginal relevance to the critical issues to be determined.

[15] Following the hearing the respondent provided its closing submissions in writing and included a statutory declaration from a new witness Mr Manes. This declaration swore to the fact that Ms Applebee was in Perth on the day of hearing. This matter is not relevant and has no bearing on my decision.

[16] In addition the applicant called Mr Coppola to give evidence. Mr Coppola’s statutory declaration was largely irrelevant to the matters to be determined by the Commission.

[17] Mr Coppola has never been employed by the respondent. He had been employed at one stage by Independent Cleaning who dismissed him. At the time though, he was undertaking his duties at the Coventry Village. It seems from the evidence that Mr Poland was also the Owner or Director of Independent Cleaning and Mr Coppola’s evidence was that he was dismissed on Mr Poland’s instructions. Mr Coppola said that applicant met with Mr Coppola on 22 October 2014 and dismissed him at Mr Poland’s direction.

[18] Significantly the applicant in his evidence 1 said that when Mr Poland told him to sack Mr Coppola he had asked why he was to be sacked and was told by Mr Poland that he did not need to have a reason. The applicant’s evidence was that when he told Mr Coppola he was dismissed Mr Coppola asked if there was a specific reason and the applicant advised there was not but that Mr Poland had simply told him to dismiss him. However under cross-examination the applicant conceded that he had given Mr Coppola a notice of termination letter when he dismissed him which referred to Mr Coppola’s performance issues and four previous written warnings regarding poor performance.2

[19] Mr Coppola’s evidence was consistent with the applicant’s evidence that no reason was given to him for his dismissal. However under cross-examination Mr Coppola contradicted his own evidence when he conceded that after his dismissal he had filed an unfair dismissal application in the Commission in which he identified the reasons for the dismissal as “performance issues”. 3

[20] Whether or not Mr Coppola was given reasons for his dismissal when he was dismissed by the applicant on Mr Poland’s instructions is of itself not relevant. However the applicant’s evidence and Mr Coppola’s evidence on this issue is directly contradicted by exhibit R1, the notice of termination letter, and R2, Mr Coppola’s unfair dismissal application, and the concessions they both made under cross-examination and so their evidence in chief on this issue is rejected. This raises doubts about the credibility of both the applicant and of Mr Coppola as witnesses.

[21] Mr Coppola agreed that when the applicant was not on duty other people managed the centre including Mr Holtham on Saturday or Sunday, Mr Archibald when the applicant was on holidays and other days when the applicant was not working and also on occasions by Mr Poland who he agreed was one of the Directors.

[22] His evidence was that the applicant on the days he was rostered on was the only Centre Manager.

[23] The applicant was on a period of annual leave from 23 October to 13 November 2014.

[24] During the applicant’s period of leave the respondent advertised online for a Commercial Property Manager. The advertisement referred to the respondent seeking an experienced Commercial Property Manager to be responsible for a shopping centre in the northern suburbs. The ad referred to the “ability to lead a team in the future”.

[25] On approximately 5 November 2014 the respondent employed Mr Crash apparently to fill the advertised vacancy.

[26] When the applicant resumed work on 13 November 2014 a number of the Centre’s retail tenants remarked that they were surprised to see him as they had heard that the respondent had engaged a new Centre Manager. The applicant was unsurprisingly concerned by these comments.

[27] The applicant’s evidence was that that morning he met Mr Holtham at Mr Holtham’s request and the applicant asked him if they were meeting so that Mr Holtham could tell him that he had been sacked. The applicant’s evidence was that Mr Holtham shook his head and said “not at all”. The applicant and Mr Holtham then worked on a problem within the Centre and an impending inspection from the local authority.

[28] The applicant’s evidence was that after this he asked Mr Holtham what the deal was with the new Centre Manager and Mr Holtham explained that Mr Poland had hired another Centre Manager while the applicant had been away, and told the applicant it was because Mr Holtham would be busy with construction projects and Mr Jay Poland, who also helped at times with the management of the Centre, was busy setting up a new business in Mandurah.

[29] The applicant says he then argued with Mr Holtham as to why none of this really made any sense from his point of view.

[30] After some more discussion about the applicant’s view that this was not the correct or necessary approach the applicant’s evidence is that he asked Mr Holtham whether he was being treated the same way as another employee who the applicant says returned from holidays to find she had been replaced and Mr Holtham replied “No, it’s not like that you still have a job.” The applicant responded with words to the effect of “Just not the job I had before I went on leave.”

[31] It is clear that from the outset when the applicant raised his concern about the respondent employing Mr Crash that Mr Holtham repeatedly reassured him that he had not been dismissed and had not been replaced. Mr Holtham also explained to the applicant the reasons why the respondent had engaged Mr Crash. It was also apparent from the outset however that the applicant did not accept the explanation Mr Holtham gave him.

[32] The applicant and Mr Holtham discussed the matter further. There is some difference in the evidence between the applicant and Mr Holtham as to exactly what was said. To the extent that there is any difference I prefer the evidence of Mr Holtham.

[33] Mr Holtham’s evidence was that he told the applicant that Mr Crash had been appointed to take over Mr Holtham’s duties because he was required to spend more time on construction and renovation matters in the Centre and that Mr Crash was also appointed to cover for the reduced availability of other managers. Mr Holtham says that he told the applicant that he should now talk with Mr Crash and discuss with him how they would share the Centre management responsibilities.

[34] Mr Holtham told the applicant that he would report to Mr Crash as he had in the past reported to him.

[35] Mr Holtham’s evidence was that he and other Directors of the company when available would take a hands-on role in the management of the Centre. Because of his expanded responsibilities for a major construction project involving a big new tenant in the Centre and because Mr Jay Poland was less able to be involved in the Centre as he was involved in establishing a new bar and restaurant in Mandurah and because Mr Archibald’s availability was also reduced as he was also involved in the Mandurah project and another restaurant that was being opened at Hillarys it had been decided that a further Centre Manager should be appointed to fill Mr Holtham’s role and that of Mr Archibald and also to cover for one of the Assistant Managers who was spending some time in Malaysia because of his father’s illness.

[36] Whilst the applicant disputes this reasoning of the respondent there is no evidence that there was any other reason for the respondent appointing Mr Crash. Mr Holtham presented as a truthful witness and I accept Mr Holtham’s evidence as to the rationale behind appointing a further Centre Manager.

[37] Mr Holtham’s evidence is that the position was advertised and interviews were conducted whilst the applicant was on leave and Mr Crash was appointed as the additional Centre Manager.

[38] The evidence is that when the applicant later that morning went to his office he found that Mr Crash was occupying his desk. The applicant felt he had been relegated to a secondary desk in the office however I accept the evidence of Mr Holtham that the applicant’s new desk was indeed the same desk that Mr Holtham and Mr Archibald would use from time to time.

[39] As the day progressed there were a number of minor conflicts between the applicant and Mr Crash as a consequence of Mr Crash, in the applicant’s absence, having initiated a number of actions and undertaken a series of tasks which the applicant perhaps would have done differently.

[40] The following day 14 November 2014 there were some further minor conflicts between the applicant and Mr Crash as to who would be responsible for what tasks. It was mutually agreed that they needed to clarify who did what duties.

[41] Late in the afternoon the applicant approached Mr Crash in the office and said he wanted to have a meeting to discuss their on-going roles in the Centre management but Mr Crash advised that he was already in a meeting with the Cleaning Supervisor and could not discuss this with the applicant at that time.

[42] That evening whilst the applicant was at home Mr Archibald rang and apologised for not having time to see him that day. The applicant raised his complaint about the respondent appointing Mr Crash and not having advised him whilst he was on leave.

[43] The applicant’s evidence was that he said to Mr Archibald that effectively Mr Crash was his boss and that the applicant is supposed to be his assistant to which Mr Archibald replied “You are both Centre Managers.”

[44] The applicant’s evidence is that Mr Archibald then told him to just hang in there and that in the future the applicant could become the “Group Centre Manager” overseeing the respondent’s operations at Coventry Village and at two additional centres the respondent runs being Dolphin Quay and Hillarys.

[45] The applicant then asked Mr Archibald for written confirmation of the duties the respondent was proposing he perform and who he would report to.

[46] The applicant worked the next day which was 15 November 2014.

[47] The applicant then had two days rostered off being 16 and 17 November 2014.

[48] The applicant was due to resume work on 18 November 2014 but was unwell and did not attend for work that day. He saw his doctor that day and he declared him unfit for work until 22 November 2014. The applicant sent a copy of the medical certificate by email to the respondent.

[49] The following day, 19 November 2014, the applicant checked his bank account and could see that he had not been paid for the pay date of 14 November 2014.

[50] He confirmed with some other employees that they had been paid correctly.

[51] The next day 20 November 2014 he again checked his account and could see that he had still not been paid. The applicant’s evidence is that he then sent an email to the respondent at 6.24 a.m. questioning why he had not been paid and stating he understood other employees had been properly paid. The applicant says he received an email from Mr Archibald around 7.00 a.m. telling him not to worry because he did not get paid as well and his mortgage was late. 4 The applicant replied by email that he would like his pay corrected as soon as possible.

[52] The applicant’s evidence was that he believed what had occurred was a deliberate action by the respondent not to pay him and that the respondent was lying to him. Because of the accountabilities as a Centre Manager he believed he must have faith in the business dealings of the respondent’s Directors. The applicant says he concluded the respondent’s behaviour caused serious doubts about their integrity and he formed the opinion he could no longer rely on them and he had lost all faith trust and confidence in the conduct of the company and its representatives. Consequently he sent an email to Mr Poland. 5 That email was sent at 8.09 a.m.

[53] The email refers to his belief that he held the position of “sole” Centre Manager from the commencement of this employment. That the employment of Mr Crash was a breach of the applicant’s employment agreement and a serious breach of trust and good faith in their working relationship. The applicant then says:

“As of today, I have still not received the monthly remuneration we agreed would be due payable under our agreement and I have learned that other monthly employees were paid on Monday, 17 November. This has caused be extreme distress and in the light of your recent behaviour I find it hard to believe that this is not a deliberate act to intimidate or cause me some more discomfort.

I advise as a result of these issues I am now compelled to end my employment with you in order to minimise any further trauma and more importantly to help me restore my good mental and physical health.

I hereby give you notice I am now forced to end my employment with you.

Sincerely

Darren Mitchell.” (Sic)

[54] Mr Poland replied at 9.08 a.m. as follows:

“Hi Darren, I’m sorry you feel this way. As you are aware Jay and myself spend our whole week at Cov, running the centre. We have other properties which we need to attend to, so we have tried to take some of our jobs and put it into a roll. This can only help. Please rethink your email and return to work as there is lots to do !

Best regard Greg.” (Sic)

[55] At 9.42 a.m. that morning the applicant received an email from the group accountant stating:

“Hi Darren

I’m very sorry in the stuff up of your pay. Christie has paid into your credit card this morning.”  6

[56] Subsequently Mr Jay Poland contacted the applicant urging him to reconsider and return to his job. A number of the respondent’s other staff attempted to contact the applicant but he declined to take their calls.

[57] The respondent also called Mr Paul Wolinski (Mr Wolinski) the Group Accountant for companies in the Strzelecki Group to give evidence.

[58] Mr Wolinski was appointed to his position on 1 October 2014 and spent the next six weeks with the former Group Accountant Ms Kirsty Patch (Ms Patch) acclimatising to the new role.

[59] One of his duties was to run the payroll for employees of the respondent. It was only in mid-November 2014 did he then have sole control of that function.

[60] On 14 November 2014 he confirmed the payroll amounts due which included a payment for the applicant and prepared a corresponding schedule of the employee’s bank accounts which are contained in the accounting system.

[61] The applicant’s pay based on that schedule was directed to be transferred to a bank account number which was not the applicants. Consequently the transfer to the nominated account was rejected. Mr Wolinski became aware of this on 20 November 2014 and so discussed the matter with Ms Patch who explained that the applicant would usually have his pay made direct to his credit card. Mr Wolinski then immediately altered the pay arrangements to ensure it went to the correct credit card account for the applicant.

[62] Under cross-examination whilst he could not really explain the source of the mistake with any certainty he rejected any suggestion that failure to use the correct credit card account for the applicant’s pay was a deliberate error on the respondent’s behalf.

[63] Whilst the applicant harbours suspicions that the failure to pay him correctly on time was deliberate there is no evidence to support that belief.

[64] On the evidence before the Commission I am satisfied that the failure in November 2014 to transfer the applicant’s payment to his correct account was a mistake and was not deliberate.

Consideration

[65] Section 394 of the Act provides that only a person who has been dismissed may apply to the Commission for an unfair dismissal remedy.

[66] Section 386, as below, prescribes what the word “dismissed” means.

“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.”

[67] In this case the applicant ended his employment himself as expressly stated in the email he sent to the respondent on 20 November 2014.

[68] A person who ends their employment themselves has not had their employment terminated on the employer’s initiative and so has not been dismissed as defined in section 386(1)(a) of the Act.

[69] However a person who has resigned but was forced to do so because of the conduct, or a course of conduct, engaged in by their employer is deemed to have been dismissed under section 386(1)(b) of the Act.

[70] The question for the Commission to determine is whether the applicant was forced to resign because of the conduct, or a course of conduct, engaged in by the respondent.

[71] In a case such as this the onus is on the applicant to prove that he did not resign voluntarily. The applicant must prove that the respondent forced him to resign.

[72] The applicant must prove that the employer’s actions were intended to bring the employment to an end or that this was the probable result of the employer’s actions.

[73] 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. 7

[74] In this case the respondent’s actions the applicant submits forced him to resign were firstly employing another Centre Manager without consulting the applicant and whilst he was on annual leave and secondly shortly afterwards failing to pay him on time.

[75] The timeline for the relevant events was that the applicant returned from annual leave on 13 November 2014 and worked for three days, was then rostered off for two days and from 18 November 2014 was unwell and so did not work. The applicant resigned on 20 November 2014 seven days after his first day back from annual leave.

[76] The evidence is that two of the respondent’s Senior Managers Mr Holtham and Mr Archibald, over the first two days after the applicant returned to work, had explained to the applicant the reasons for engaging Mr Crash and that employing another Centre Manager did not mean he was being dismissed. They both sought to reassure him and encouraged him to be patient while the situation was worked out. Mr Archibald even suggested that in future the applicant may be promoted to overseeing a group of centres. In response to the applicant’s emailed resignation to Mr Poland, Mr Poland promptly responded with similar explanations to those that have been provided previously to the applicant and encouraging him to reconsider his resignation.

[77] It is not surprising that the applicant was alarmed when he returned from annual leave to find the respondent had employed another Centre Manager. However what impact this was going to have on him on a day-to-day basis and on his employment longer term certainly had not been clarified by the time he resigned. On his second day back after his leave the applicant quite sensibly asked for his duties, responsibilities and reporting arrangements to be specified in writing. The applicant understandably wanted some clarity of his position and the relationship to the other Centre Manager’s position. The applicant however worked only one more day and resigned five days later, having not returned to work and having not yet received the detail he had requested from the respondent.

[78] This evidence in my view demonstrates that it was not the respondent’s intention in employing another Centre Manager to force the applicant to resign. Nor objectively can it be said that employing another Centre Manager would probably cause the applicant to resign in circumstances where there was no suggestion his job was at risk and indeed assurances to the contrary had been given and he had been given an explanation as to why the respondent thought it was desirable to have another Centre Manager.

[79] It is clear from the sequence of events that it was the respondent’s failure to pay the applicant on time on top of the respondent appointing the additional Centre Manager that caused the applicant to resign. The applicant in his email resignation refers to the hiring of the other Centre Manager as a breach of trust and good faith in the working relationship. He goes on then to raise the fact that he has not been paid his monthly remuneration whilst other employees have. The applicant says that in light of the respondent’s recent behaviour he finds it hard to believe that this is not a deliberate act to intimidate or cause him some more discomfort. For these reasons the applicant said he now felt compelled to end his employment.

[80] As I have found above I do not accept that the failure to pay the applicant on time in November was deliberate. The actions of the respondent’s Managers and staff when they were alerted by the applicant to this error demonstrate an appropriate and timely response that resolved the error. The mistake was promptly corrected less than four hours after the applicant complained about it.

[81] The applicant chose to interpret the failure to pay him on time as a deliberate act. This appears to have followed on from his immediate suspicion that employing the additional Centre Manager meant he was being dismissed. The applicant unfortunately overreacted to both the respondent employing another Centre Manager and not paying him on time. The applicant’s subjective view was that both actions by the respondent were deliberate attacks on him.

[82] Viewing these events objectively, as the law requires the Commission to do, demonstrates this not to be the case at all. The respondent’s action in employing the other Centre Manager, on what was known to the applicant at the time he resigned, could not objectively be seen as leaving the applicant with no choice but to resign. Similarly considered objectively the delay in payment to the respondent did not force the respondent to resign.

[83] Senior Deputy President O’Callaghan considered the circumstances of late payment of wages and superannuation in Kylie Bruce v Fingal Glen Pty Ltd T/A Comfort Inn Adelaide Riviera 8. In that matter the evidence was that the employees’ wages had been paid a few days late constantly week in week out and the employee was owed over $4,000 in outstanding superannuation payments. This background caused the employee to resign.

[84] Senior Deputy President O’Callaghan found the following:

“[22] In this matter, the failure of Fingal Glen to make timely wage payments is, in my view, a matter which goes to the competence and credibility of Fingal Glen and clearly created the circumstances which prompted Ms Bruce to resign her employment. However the test goes beyond simply explaining a logical basis for the resignation.

[23] In order to reach a conclusion about the facts relevant to Ms Bruce’s situation I have noted that Ms Bruce does not assert that she was underpaid her wages. Rather, it is the late nature of payments made to her and the absence of superannuation payments which led to her resignation. That lateness was commonly one to two days but there are occasions when these payments were even later. In the period immediately before Ms Bruce resigned on 10 January 2013 her pay was four days late. Clearly such a situation was improper and represented a breach of normal employment obligations. However, it falls substantially short of the circumstance considered in Hobbs and in my view could have been addressed in a number of other ways.

[24] I have accepted Ms Bruce’s evidence and that of the United Voice organiser, Mr Beasley about how difficult it was to contact the relevant managers of Fingal Glen and how the commitments given by these people were not followed on occasion. Notwithstanding this, Ms Bruce or the union could have referred the matter to the Commission under the dispute resolution provisions of the Award, or to the Fair Work Ombudsman, or could have instigated action in the Court to claim the penalties envisaged by the Award.

[25] I do not consider that Fingal Glen’s non-payment of superannuation to Ms Bruce, even when considered in concert with the late wage payments, requires a conclusion that Ms Bruce was forced to resign. Underpayment of superannuation entitlements is a matter which is regularly taken up with the Australian Taxation Office and may give rise to compliance penalties being imposed on an employer.

[26] The Full Bench in ABB Engineering 7 observed that the distinction between an employer’s behaviour that leaves an employee with no choice apart from resignation, as distinct from other options, is often a very narrow distinction. That narrow distinction is relevant to this situation. Here, I am not persuaded that resignation was the only option open to Ms Bruce. I am particularly concerned that a pattern of irregular wage payments and the non-payment of superannuation ought not to be too readily taken to effectively terminate the employment relationship as distinct from creating a situation where the recalcitrant employer is bought to task, or possibly penalised under the appropriate legislation. The alternative position could have the potential to place the ongoing employment of many employees at risk rather than acknowledging that enforcement options exist and may be applied.

[27] In my view, serial underpayment or the late payment of wages situations, each need to be considered on the merits. In this matter, Ms Bruce was clearly entitled to be annoyed and disillusioned at Fingal Glen’s behaviour. That behaviour no doubt explains her perfectly reasonable resignation decision, but I am not satisfied that the non-compliance by Fingal Glen was of such a magnitude that, without the commencement of enforcement initiatives, it can be described as leaving Ms Bruce with no choice other than to resign.

[28] Whilst in absolutely no way condoning Fingal Glen’s behaviour, I have concluded that the resignation decision was based on Ms Bruce’s perception and a perfectly understandable and subjective response. That resignation decision was not, as of 10 January 2013, the only option open to Ms Bruce.

[29] Accordingly, I am not satisfied that Ms Bruce was dismissed pursuant to s.386(1)(a) or (b). The Commission does not therefore have the jurisdiction to consider the application further. An Order [PR538005] dismissing the application consistent with this decision will be issued.”

[85] The applicant similarly in this matter if he believed he was not going to be paid had options open to him rather than resigning. Even if the respondent had indeed refused to pay the applicant, the applicant had the option of pursuing his unpaid entitlements through enforcement in the appropriate jurisdiction. He did not need to resign.

[86] The applicant had actually taken the more practical first step after not being paid which was to complain to the respondent and the evidence is the employer promptly apologised and fixed the payment error. Resignation was obviously therefore not the only option the applicant had in the circumstances.

[87] Whilst the applicant was entitled to be upset by both these developments he obviously could have continued in the job to find out what these events meant to him rather than assuming the worst as he did.

[88] Considering both issues there is no evidence that it was the employer’s intention in engaging another Centre Manager or in not paying the applicant on time to bring the employment to an end.

[89] An objective analysis of the respondent’s actions demonstrates that neither singularly nor together were they such that resignation by the applicant was the probable result. The respondent’s actions did not place the applicant in a position where he had no effective or real choice but to resign.

[90] For completeness I will consider whether it could be argued that the applicant was demoted in his employment such that this amounted to a dismissal.

[91] The evidence discloses that there was no suggestion that there would be any reduction in the applicant’s remuneration. The evidence also discloses that having employed another Centre Manager it had not been clarified what the applicant’s duties would be. Mr Crash the other Centre Manager in the applicant’s absence had obviously been undertaking duties the applicant would have otherwise done had he not been on leave and Mr Crash continued to follow through with these over the three days when the applicant had resumed work. Only ad-hoc arrangements were in place for the three days the applicant worked alongside the other Centre Manager before resigning. What their respective duties and the reporting relationship were to be for the future had not been clarified. The applicant had asked for this to be specified by the respondent in writing however he resigned before the respondent had done this or in any other way clarified these issues for the future.

[92] Given these circumstances it was not the case at the time the applicant’s employment ended that there had been a significant reduction in his duties.

[93] In conclusion I am satisfied that the applicant was neither forced to resign from his employment because of the conduct or a course of conduct engaged in by his employer nor was he demoted in circumstances that involved a significant reduction in his duties.

[94] The applicant was not dismissed within the meaning of the Act.

[95] I uphold the respondent’s jurisdictional objection and consequently will now dismiss this application. An order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

D. Vigfusson on his own behalf.

A. Thorpe of the respondent.

Hearing details:

2015.

Perth:

April 15.

Final written submissions:

Applicant, 14 May 2015.

Respondent, 30 April 2015 and 21 May 2015.

 1   Exhibit A1 at paragraph 21 and Transcript at PN355.

 2   Exhibit R1.

 3   Exhibit R2.

 4   Exhibit A1, attachment C16.

 5   Ibid., attachment C19.

 6   Ibid., attachment C17.

 7   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at [23].

 8   [2013] FWC 3941.

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