Davidson v Blueline Meats Pty Ltd

[1996] IRCA 509

DECISION NO:509/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1685 of 1996

B E T W E E N:

Ross DAVIDSON
Applicant

A N D

BLUELINE MEATS PTY LTD
Respondent

REASONS FOR DECISION

18  October  1996  PARKINSON JR

This is an application made pursuant to s170EA of the Industrial Relations Act 1988 (‘the Act’).  The applicant was employed by the respondent as a driver.  His duties included deliveries and loading and unloading of meat products to the respondent’s customers.  He commenced employment on 30 June, 1995 and the employment ceased on 16 April, 1996. 

The respondent contends that there was no termination of employment at the initiative of the employer and that the applicant resigned his employment.  The respondent concedes that if the termination of the employment was at the initiative of the employer, there was no valid reason for such termination.  The evidence was that the applicant was considered by the respondent to be a  good and reliable employee, who performed his duties diligently. 
The application lodged pursuant to s170EA of the Act stated that the applicant was: “forced to resign because his wife became ill in hospital. I informed the boss that I could not come to work. He said I had to (sic) I had to resign.”  There was no evidence led on behalf of the applicant to support the claim made in the application that the applicant was forced to resign by the direct advice of the respondent.  The closest the evidence of the applicant came was where the applicant said he was told he had to come to work or else.  The evidence of the applicant was that he took this to mean that he would be dismissed if he did not.  It is clear that this threat was never expressly made and the evidence is also that the applicant was ultimately given the day off work as requested, so there is no question of the termination having taken place as a consequence of this discussion. 

In this context, I have also considered whether the conduct of the respondent in initially denying the applicant family leave constituted an act initiating the termination of the employment, by leaving the applicant no choice but to resign. I am satisfied that it did not. In this regard I have considered the decision of the Full Court in Mohazab v Dick Smith Electronics (1995) 62 IR 200.  I have had regard to the relevant Industrial Award and no family leave entitlement exists in that award, so this is not a case where there was a refusal by the respondent to accord the applicant his contractual or award entitlements.  The resignation by the applicant was not contemporaneous or coincidental upon the initial refusal to grant leave.  Further it is clear on the evidence of the applicant, that the resignation was not dictated by any refusal to grant such leave, but rather by the chagrin felt by the applicant at the inquiries made by the respondent as to the necessity for the leave and what the applicant perceived as the respondent’s subsequent inconsistent conduct in that regard.  It is apparent that there was no conduct on the part of the respondent which might be described as coercing, instructing, directing, or forcing the applicant to resign, when he advised of his resignation in the sense contemplated in Mohazab.  This not a case where the resignation resulting in the termination of the employment, may be described as being initiated by  the respondent. 

The outstanding jurisdiction issue therefore in this proceeding is whether there was a withdrawal of the resignation by the applicant which was agreed to by the respondent.  If there was, then the conduct of the respondent on the last day of the employment of refusing to allow the applicant to remain in the employment, constituted a termination of the employment of the applicant at the initiative of the employer.  If there was neither a withdrawal, nor acceptance of the withdrawal by the respondent. then it did not. I turn now to consider the evidence and my findings of fact. 

I am satisfied that on Wednesday 27 March, 1996 as a result of difficulties the applicant experienced some days  before in obtaining leave of absence for a day to attend to a family difficulty, the applicant attended at the workplace and informed Mr Peter O’Brien, a director of the respondent and its operations manager, that: “ I wasn’t going to put up with this fucking shit any longer and I will be finishing up when Marita has the baby in three weeks time.”  The applicant agrees that he gave notice in these terms and that he did resign on that date.  The evidence is that the applicant approached another employee, Mr Santarosi, some days after the resignation and advised him of his resignation and that he, Mr Santarosi would now be the respondent’s lead driver.  The applicant agrees that this conversation took place although he says that the conversation took place shortly after the resignation, and not some days later. I accept that this conversation took place in April, 1996, and not as the applicant has suggested in March. 

The applicant’s evidence is that some days after the resignation,  and after he had cooled down,  he approached Mr Peter O’Brien and advised him, in the context of a discussion as to his physiotherapy treatment that “he would be right at the end of his holidays.”  The applicant’s evidence is that this comment was acknowledged by Mr Peter O’Brien in terms “that’s good”, or “ that good because its hard to get good drivers ” and that he and Mr Peter O’Brien both understood that the effect of this comment was that the applicant had withdrawn the resignation and that this was agreed to by the respondent.  Counsel for the applicant submitted that, if this evidence is accepted, this conduct constituted a request to withdraw the resignation and agreement by the respondent to that request. 

Mr Peter O’Brien’s evidence was that no such conversation took place in those terms and that he had no appreciation of the applicant’s desire to remain in the employment until the day before the notice period was to expire when he approached the applicant to discuss the administrative arrangements in that regard.  On that occasion his evidence is that the applicant advised he was not leaving and that the respondent should have known that.  Mr Peter O’Brien’s evidence was that in the course of the notice period arrangements had been made to hire a replacement driver for the applicant and that in fact a new employee had been hired and was in attendance at the work place in the last few days of the applicants employment.  The evidence of Mr Peter O’Brien was that neither the applicant or any other person informed him during the course of the notice period that the applicant was now remaining in the employment. 

Counsel for the respondent submitted that there was never any consensual withdrawal of the resignation. It was further submitted that the terms of the conversation relied upon by the applicant as constituting a withdrawal of the resignation, even if made, could not have been construed as such by Mr Peter O’Brien.  Whilst I accept that the applicant was advised to think about his resignation, I am not satisfied that this advice was given him by Mr Peter O’Brien.  The evidence of Mr Noel Merrifull, which I accept, is that he advised the applicant to think about the resignation, and that this advice was given after the applicant had already resigned.  His evidence was that the applicant had informed him on the telephone and that he later advised the applicant to speak again to Mr Peter O’Brien, as to his resignation. 

The evidence of Mr Peter O’Brien is that no further steps were taken expressly by the applicant to revoke or to request that the respondent agree to him withdrawing the resignation.  The evidence of Mr Merriful  suggests that the applicant is not able to accurately recall the events and conversations as they occurred. I prefer the evidence of Mr Merriful. I do not accept that the respondent agreed to the applicant withdrawing his resignation, or agreed to the applicant remaining in the employ of the respondent.  I am not satisfied that such agreement was reached.  Nor am I satisfied that the purported withdrawal by the applicant of the resignation was an unambiguous statement of intention or request to withdraw the resignation. 

The statement the applicant relies upon as constituting the withdrawal of the resignation was:

“I’ll be right to resume full duties after my holidays”.

I accept that the applicant may have had the intention of withdrawing his resignation and I also accept that he believed that he made this statement and conveyed it to Mr Peter O’Brien. I also accept that he believed that the statement had the result of effecting a continuation of his employment with the respondent. Whilst I am prepared to accept that there was a conversation between Mr Peter O’Brien and the applicant as to the latter’s back injury and such a statement may have been made in this context, I also accept that the respondent did not understand that there had been a withdrawal by the applicant. That this is so, is evidenced by the conduct of the respondent in implementing arrangements to employ a new driver. After having resigned in such unambiguous terms, in my view there must be a clear and unambiguous statement by the applicant that such resignation was being withdrawn. There must also be a clear and unambiguous acceptance by the respondent of such withdrawal.  This did not occur in this case. 

The applicant gave the respondent three weeks notice.  The applicant was to remain in the employment for the period of the notice.  This is what occurred.  The termination of employment was effected by the expiration of the notice period.  The notice period commenced, or was initiated by the applicant.  There were no steps taken by the respondent in the intervening period which resulted in the employment being terminated otherwise. I have considered the effect of the conduct of the respondent in removing the applicant from the premises on 16 April, 1996.  It is clear that the period of notice had then expired and the employment had already terminated at that point. 

In so far as it is submitted that the failure of the respondent to agree to the applicant remaining in the employ on 16 April, 1996, the last day of the employment, constituted a termination of the employment, I do not agree.  It was not unreasonable of the respondent, in circumstances where it had already employed another driver to replace the applicant to refuse to accept such withdrawal.  Save for the resignation being in the contemplation of the respondent as evidenced by the consequent hiring of another employee, there is no evidence of any reason why the employment would otherwise have been terminated. 

I have concluded that the applicant resigned his employment on 27 March, 1996 because he was aggrieved as a result of the respondent’s conduct. I am not satisfied that the respondent agreed to the applicant withdrawing the resignation in the notice period and I have concluded that the employment terminated not as a result of any act on the part of the respondent, but as a result of the resignation of the applicant at the expiration of the notice period. 

I am satisfied that there was a resignation and I am not satisfied that there was a withdrawal of the resignation with the consent of the respondent on any day after the resignation was made, or a resulting termination of employment on 16 April, 1996. I am not satisfied that there was a termination of the employment at the initiative of the employer and consequently the termination of employment is not a termination of the type contemplated by s170EA of the Act.

It is appropriate in concluding to make some observations in relation to the tape recording exhibited by the respondent. I have listened to the tape recording which is exhibit R4 in the proceeding.  This tape recording was achieved by way of a concealed micro-dictating machine on the person of Mr Graeme O’Brien, the respondent’s operations manager and managing director. In my view the conversation reveals little more than a confirmation by the applicant of a limited number of facts relating to the resignation.  The nature of the questions put to the applicant by Mr Graeme O’Brien and the manner in which those questions were put satisfies me that the tape is of little assistance in determining any of the factual matters which arise in this proceeding.  Mr Graeme O’Brien put various matters but in a limited manner to the applicant and failed to give him a full opportunity to complete most of his sentences, much less his explanations as to critical matters.  Tape recordings of interviews of this type are of limited assistance to the Court and I have had no regard to its contents in deciding this matter. 
For the reasons set out herein the application is dismissed.

I certify that the preceding eight (8) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.

Associate      :         Paul Ferguson
Dated            :         18 October

APPEARANCES

Counsel appearing for the applicant        :         Mr. A. McDonald
Solicitors for the applicant  :         McDonald & Charman

Counsel appearing for the respondent     :         Mr. N. Green
Solicitors for the respondent  :         Kenna Croxford & Co.

Date of hearing  :         5 September 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1685 of 1996

B E T W E E N:

Ross DAVIDSON
Applicant

A N D

BLUELINE MEATS PTY LTD
Respondent

MINUTES OF ORDERS

18  October  1996  PARKINSON JR

THE COURT ORDERS THAT:

1. That the application made pursuant to Section 170EA of the Industrial
             Relations Act 1988 be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court           Rules

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION -
JURISDICTION - whether TERMINATION at the initiative of the employer - whether RESIGNATION by employee - whether RESIGNATION withdrawn -

Industrial Relations Act 1988, s170EA

Mohazab v Dick Smith Electronics (1995) 62 IR 200

DAVIDSON v BLUELINE MEATS PTY LTD
VI 1685 of 1996

Before:  PARKINSON JR
Place:  MELBOURNE

Date:  18  October  1996