Dodson v Hazeldenes Chicken Farm Pty Ltd

[1996] IRCA 120

DECISION NO:  120/96

THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4188 of 1995

B E T W E E N:

Brian Andrew DODSON
Applicant

A N D

HAZELDENES CHICKEN FARM PTY LTD
Respondent

REASONS FOR DECISION
(delivered ex tempore)

1 April 1996  PARKINSON JR
This is my decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed as a boner at the respondent’s business. The evidence was that he was an excellent employee and that his work performance was valued by the respondent.

The only issue between the parties in this proceeding is whether the termination of employment occurred at the initiative of the employer or the employee. It is appropriate to explain at this point that this court is competent to hear and determine claims that result from an alleged unlawful termination of employment where that termination of employment occurred at the initiative of the employer. 

The events which led to the termination of the employment involved a dispute between the applicant and the respondent as to his partner’s workcare entitlements. The applicant’s partner was also employed by the respondent company. The applicant was aggrieved as a result of what he viewed as failures in the respondent to pay his partner the monies to which she was entitled whilst on workcare. He raised this matter with the respondent’s production manager on 25 July  1995.  In the course of that meeting, Mr John Hazeldene, a director of the respondent became involved, and the discussion became heated.  The evidence of Mr John Hazeldene was that the applicant indicated on a number of occasions that he did not wish to remain with the respondent company. The applicant’s evidence was that he had said words to this effect.  The evidence was that Mr John Hazeldene suggested that the applicant go to the lunch room and calm down and think things over. 

There were subsequent discussions in the lunch room of the respondent where Mr Dick Hazeldene, the managing director of the respondent company, and the applicant discussed further the workcare claim issues and the applicant’s concern  in this regard.  The applicant on a number of occasions indicated to Mr Dick  Hazeldene that he “ might as well leave” or  that he “wanted to leave”, or words to that effect.  The evidence of the witnesses called for both the applicant and the respondent, and the evidence of the applicant himself, was that Mr Dick Hazeldene attempted to get the applicant to reconsider this position and not to resign.  The words he used were to the effect of:  “ No, no don’t, don’t quit we can sort this out”, and requesting that the applicant “go back to work”. The evidence is that the applicant pressed his intention to leave and, as a result his partner, Ms Nibblet,  when asked what her position was, indicated that she had finished her shift and was going home with the applicant. The evidence is also that the applicant had packed up his knives and other equipment, having left the lunchroom to collect them during the course of the discussions. 

The applicant conceded in his evidence that there was never any threat or indication by  Mr Dick Hazeldene to terminate the applicant’s employment.  I am satisfied that any altercation which occurred between the applicant and Mr Dick Hazeldene resulting in the applicant being told to wait outside or leave the premises, occurred after the applicant had left the employment and, on the facts, after arrangements had already been set in train for the applicant’s pay to be made up. These arrangements were also set in place at the applicant’s request.

The parties were generally at one in their evidence as to the events which occurred on 25 July 1995. It is apparent to me that on either version of the events, there was no termination of the applicant’s employment at the initiative of the employer. That is the termination of employment which is contemplated by S170EA of the Industrial Relations Act 1988.

Whilst the applicant may have felt compelled to leave the employment because he believed, rightly or wrongly, that the respondent was treating his partner unfairly, this does not mean that the termination of the employment was at the initiative of the employer. 

In this case there was nothing oppressive about the conduct of the respondent directed to the applicant  which would suggest that the applicant had “no real choice” but to resign.  Nor is it a case where the applicant has been told by the respondent “resign or be dismissed”.  The authorities are clear that in the above circumstances a termination of employment is likely to be characterised as being at the initiative of the employer.  But this is not the case here.

Notwithstanding all of the concerns expressed by the applicant and the matters raised by him in the proceeding , this court is limited to dealing with matters within its jurisdiction according to the provisions of the Act.   The circumstances of the applicant’s employment with the respondent are not within jurisdiction and I therefore dismiss the application. 

The order of the court shall be that the application is dismissed.

I certify that this and the preceding three (3) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore.

Associate:
Dated:  1 April 1996

APPEARANCES

Applicant in person
Representative appearing for the respondent:                   Ms G Robertson

Date of hearing:  1 April 1996

THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4188 of 1995

B E T W E E N:

Brian Andrew DODSON
Applicant

A N D

HAZELDENES CHICKEN FARM PTY LTD
Respondent

MINUTES OF ORDERS

1 April 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application is 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 - whether termination at the initiative of the employer - whether RESIGNATION

Industrial Relations Act 1988, ss 170EA

BRIAN ANDREW DODSON v HAZELDENES CHICKEN FARM PTY LTD
VI 4188 of 1995

Before:  PARKINSON JR
Place:  BENDIGO
Date:  1 APRIL 1996