Debbie Fletcher v The Trustee for Millard Family Trust T/A South East Training Services
[2010] FWA 2261
•17 MARCH 2010
[2010] FWA 2261 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
v
The Trustee for Millard Family Trust T/A South East Training Services
(U2009/13356)
COMMISSIONER DEEGAN | CANBERRA, 17 MARCH 2010 |
Termination of employment and whether termination was at the initiative of the employer.
[1] The matter arises from an application filed on 29 October 2009 under s.394 of the Fair Work Act 2009 (“the Act”) by Ms Debbie Fletcher (“the applicant”) for relief in relation to the alleged termination of her employment by South East Training Services (“the respondent”).
[2] Following an unsuccessful conciliation conference, directions were issued by Fair Work Australia and the matter was set down for hearing on 4 February 2010 in Nowra. As the respondent had raised an objection to jurisdiction, claiming that there was no termination at the initiative of the employer, the hearing dealt with the objection and the substantive application together.
[3] At the hearing Mr Gary Pinchen, agent, appeared for the applicant and Mr Martin Aicken, a solicitor, appeared for the respondent.
[4] I will initially deal with the question of jurisdiction and whether there was termination at the initiative of the employer.
[5] The applicant, who held the position of administration assistant, had been employed by the respondent since 12 March 2007 in the respondent’s Nowra office. Her employment with the respondent ended on 16 October 2009. The employer had, at that time, a number of small or single person offices in NSW and the ACT and employed less than 15 employees. At the time of the termination of her employment she was working about 12 hours each week.
[5] The applicant filed a statement of her evidence 1, expanded on the statement orally and was cross-examined. It was her evidence that on 16 October 2009 she received a call from Mr Steven Millard, Managing Director of the respondent, who accused her of giving his mobile telephone number to another person.
[6] The applicant denied that she had given out Mr Millard’s mobile number and that she knew anything about the matter. It was her evidence that Mr Millard was “really, really aggressive and angry.” 2
[7] According to the applicant, during the phone conversation Mr Millard had said, “Well, while I have you on the phone, I'm letting you know that we are closing the Nowra office. I’m giving you notice till mid-November.” The applicant then asked about an ongoing issue in relation to her superannuation payments in response at which Mr Millard became “extremely angry” and said, “I am sick of you complaining about your super. You can finish up – I've had enough. You can finish up this afternoon”. According to the applicant she replied “Well, I'll go now. I'll go now.” 3
[8] The applicant claimed that subsequent to the telephone conversation with Mr Millard, she contacted Ms. Leah Spiteri, an employee at the respondent’s Batemans Bay office, to advise her how to process some documents. She claimed that during that conversation she began to cry and said to Leah “I have just been fired.” 4
[9] Under cross examination, the applicant agreed that after the phone call with Mr Millard, although she claimed to have been concerned for her own safety 5 she had taken 90 minutes to leave the office as she was finishing off work and passing on work that had to be completed.6
[10] Evidence was given for the respondent by Mr Steven Millard, Mr Steven Millard (junior), Ms Jill Millard and Mr Benjamin Fowler.
[11] Mr Millard gave evidence about the telephone call he had had with the applicant on 16 October 2009. It was his evidence that the phone call was made from his car while driving to Sydney. Mrs Jill Millard had also been in the car with him. He confirmed that the phone call was heated. He had called to ask the applicant whether his mobile number had been given out and had discussed superannuation with the applicant. During the conversation he had decided to inform the applicant that the Nowra office would close at the end of November 2009, so that the applicant would have at least 6 weeks to look for a new job. When Mr Millard told the applicant this, the applicant reacted by saying words to the effect that she would finish that day, to which he responded that she should stay until the end of the shift. The applicant than replied that she was leaving there and then. 7
[12] It was Mr Millard’s evidence that, given that the Nowra office was to close, he had wanted to give the applicant 6 weeks notice to find another job, but there had been a possibility he may have been able to use the applicant in another office. He claimed that he “didn't get the opportunity to have any of those conversations because Debbie said that she was quitting and she hung up the phone. That's what happened, so how could we have any further conversation?” 8
[13] Mr Millard (junior), General Manager for the respondent, gave evidence that on 16 October 2009 he had been working at the Batemans Bay office when Ms Spiteri had walked into his office and said to him “Debbie in Nowra has just quit.” His response was “I'm not sure what you’re talking about” and he immediately called his father to clarify the position. Mr Millard confirmed that the applicant had resigned. 9
[14] Mr Benjamin Fowler, a client of the respondent provided a statutory declaration and gave oral evidence. According to Mr Fowler on 16 October 2009 he had visited the respondent’s Nowra office to drop off some papers and had a conversation with the applicant, who was in a cheerful mood. 10 He stated that when he left the office he had formed the impression that “she had quit, and she was fairly happy”.11
[15] It was the applicant’s case that her employment was terminated by Mr Millard and that, as a result of Mr Millard giving her 6 weeks notice, the employment contract was repudiated. 12
[16] On behalf of the respondent it was submitted that the 6 weeks notice given by Mr Millard was not an indication of an immediate repudiation of the contract of employment but provided to give the applicant an opportunity to find further employment. In any event, the respondent submitted that on 16 October there was no termination at the initiative of the employer.
[17] Not all the evidence and submissions in this matter have been reflected in this decision. A number of matters were raised in evidence, and put in submissions by both parties, which had limited relevance to the question before me.
[18] Section 386 (1)(a) of the Act is relevant in the question of jurisdiction. It states:
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
[19] Clearly in this case, there is a dispute of fact that needs to be determined in relation to the question of whether there was termination at the initiative of the employer. The applicant contends that she was dismissed by Mr Millard and told to go that afternoon. The respondent submits that the applicant “quit” her employment.
[20] Having heard all of the witnesses in this matter give their evidence and compared the different versions of the events, I accept the version put forward by the respondent that, during the telephone conversation with Mr Millard and having been informed that the Nowra office would close at the end of November, the applicant resigned, with immediate effect, from her employment. I accept this evidence having noted the unchallenged evidence of Mr Millard that, on a prior occasion, the applicant had lost her temper and quit her position. On that occasion he had gone to some trouble to convince her not to resign. 13
[21] It is my view that Mr Millard’s version of events was further corroborated by the evidence of Mr Fowler, a client of the respondent, who could be said to be an independent witness as he had no interest in the outcome of the matter. He presented as an honest witness and in both his statutory declaration and in his oral evidence was clear that, following his conversation with the applicant in the Nowra office on 16 October, he had formed the impression that the applicant had quit her position and was reasonably happy to have done so. Although he could not recall exactly the words she had used to convey this impression he stated that the applicant said words like, “You will have to place your work on the desk boys. I don’t work here anymore I just quit.” 14
[22] The evidence of Mrs Millard also corroborated the evidence of her husband in relation to the conversation that he had with the applicant while he was driving to Sydney.
[23] While I accept that the phone conversation between the applicant and Mr Millard became heated, I do not accept the applicant’s version of events that she was dismissed during that conversation and feared for her safety to such an extent that she needed to leave immediately. The fact that the applicant did not leave the premises for a further 90 minutes following the termination of the phone call is not consistent with her claim. I did not find the applicant’s evidence persuasive and where it differed from that of the other witnesses I prefer the evidence of the others.
[24] I find that the applicant did resign from her employment on 16 October 2009 and consequently there was no dismissal at the initiative of the employer pursuant to s.386(1)(a) of the Act.
[25] There is no jurisdiction to deal with the substantive application. An order to that effect, dismissing the application, is published separately.
COMMISSIONER
Hearing details: Nowra , 4 February 2010
1 Exhibit P1.
2 PN29.
3 PN29.
4 PN32.
5 PN82.
6 PN81.
7 PN188
8 PN222.
9 PN143.
10 PN338.
11 PN340.
12 PN367.
13 PN202.
14 Exhibit A4 paragraph 4
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