Doyle v Secure Parking Pty Ltd
[1997] IRCA 265
•10 September 1997
DECISION NO:265/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYEE - whether termination was at the initiative of the employer - time of the determination of the employment contract - DURESS
Workplace Relations Act 1996
British Railways Board v Herrington [1972] 1 All ER 749 at 780
Mohazab v Dick Smith Electronics Pty Ltd 1995 62 IR 200
Weston v Union Des Assurances De Paris 17 December 1996 Madgwick J. (unreported)
Selvachandran v Peteron Plastics Pty Ltd 1995 62 IR 371
Jones v Dunkel 101 CLR 298
Grout v Gunnedah Shire Council 1994 IRCR 143 at 160
Strachan v Liquorland (Aust) Pty Ltd Moore J., 6 February 1996 (unreported) Rheinberger v Huxley Marketing 67 IR 154
Doyle v Secure Parking Pty Ltd
NI 2162 of 1996
Before: LOCKE JR
Place: SYDNEY
Date/s of hearing: 7 MARCH 1997, 25 MARCH 1997, 4 APRIL 1997, 13 MAY 1997
Date of judgment: 8 SEPTEMBER 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 2162 of 1996
BETWEEN:
Jamie Gerard DOYLE
Applicant
AND
Secure Parking Pty Ltd
Respondent
BEFORE: LOCKE JR
PLACE: SYDNEY
DATE: 8 SEPTEMBER 1997
MINUTES OF ORDERS
THE COURT ORDERS THAT:
The Application be dismissed
Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NI 2162 of 1996
BETWEEN:
Jamie Gerard DOYLE
Applicant
AND
Secure Parking Pty Ltd
Respondent
BEFORE: LOCKE JR
PLACE: SYDNEY
DATE: 8 SEPTEMBER 1997
REASONS FOR DECISION
By application dated 21 August 1996, Jamie Gerard Doyle sought the remedy of compensation in respect of the alleged termination of his employment by the respondent. It was refuted by the respondent that the departure of the applicant from its employ was not its initiative, and the truth was the applicant resigned. It averred it had given the applicant a reasonable and lawful direction to transfer from its Liverpool Street establishment to one it conducted at Riley Street for a period of four weeks, both were in the City of Sydney. The reason alleged for the transfer was “operational requirements” of the respondent’s undertaking, being the necessity to fill a position whilst an employee at that parking station took his annual leave.
It was the applicant’s case that the circumstances of the dismissal were so oppressive that he had no alternative but to abandon his employment, the facts surrounding which will be alluded to later in the narrative.
“Five Star Parking” for whom the applicant worked was a wholly owned subsidiary of the respondent, conducting various car parks in and around the city of Sydney.
The Facts:
The applicant who is thirty seven years of age commenced work with the respondent in 1993 as a permanent car park attendant. In 1995 his status altered to that of a casual employee and continued to be so until 16 February 1996.
Two weeks prior to this date, a Mr Allan Curtin, the respondent’s then operations manager, offered him a full time position at the Liverpool Street car park. At first the applicant was not attracted by the proposition as to use his own words “I was getting quite good money as a casual employee, lots of hours, lots of work”.
However, he was persuaded eventually to accept permanency as Mr Curtin told him that he and another employee Ms Laura Speidal, had the potential to earn up to $750 per week between them in bonuses as a result of a system which was being introduced. This was in addition to his base rate of pay. Another inducement was the payment of a meal allowance, as it would not be required that he take a luncheon break.
Having agreed to take the permanent position, the applicant some time later signed a document entitled “Terms and Conditions of Employment” - Exhibit “1” of which clause 22 became significant in these proceedings. This term provides:-
“That Secure Parking may, in line with the policy of staff rotation and multiskill training from time to time, change my rostered shifts hour’s and or place of work in accordance with business needs.”
The industrial award which governed the applicant’s industry “Parking Attendants (State) Award” also alludes to temporary transfers in clause 24 (exhibit “C”).
It is the applicant’s contention that he signed this document, in particular clause 22 under duress. He forthwith commenced work as customer service officer.
According to the applicant when the conversation turned to the question of transfer, he protested whereupon, Mr Curtin “basically guaranteed that I would not be transferred “... he wanted me to run the site, because I was experienced at that site and he was going to make it worthwhile to put the bonus system and the overtime ... they wanted me to increase the actual takings there .... they were averaging say $500.00 per week and we increased the takings to anything up to $1300 per week”.
Increase the sales the applicant did. Cars were parked on every available space, including aisles and ramps. Ergo, he received handsome bonuses and worked overtime. The bonus system was calculated on the takings which were in excess of those of the previous year. It follows the payment was only guaranteed if the level of sales were achieved.
Whilst signing exhibit “1” it was the applicant’s evidence that he said to Mr Allan Curtin he was doing so under duress. However it was the operations manager’s evidence that he was not present at the time of execution. However Ms Speidal was there as she was the witness to the applicant’s signature. This person was not called to given evidence at the hearing despite the fact that Counsel for the applicant Mr Brezniak successfully made an application for an adjournment during the proceedings on 4 April 1997 so he might arrange for her to be called. Ms Speidal was not a witness in the case and no subpoena was issued (despite leave being granted) to compel her to give evidence. An explanation was given as to the failure to call her, including her recollection might fail her. However, this was not established by evidence, see: British Railways Board v Herrington [1972] 1 All ER 749 at 780.
Duress was a bare allegation with the only evidence of protest being that by the applicant. Laura Speidal might have been able to assist the Court. There was no evidence upon which the Court might determine whether an act or threat was made sufficient to overcome the will of a constant man (in this case the applicant). No evidence was led enough to mount an inquiry whether the will of the applicant was in fact coerced. The concept of duress is limited to a certain category of acts of coercion or threats such as duress to the person; duress by legal process; duress of property. The test is an objective one. No attempt was made to focus on the effect of the alleged act or threat upon the applicant except that if he did not sign he would not be made permanent. In the light of the applicant’s ambivalent attitude to the proposed change of work circumstance, it could hardly be said his will was overborne. Further, the act put forward was not one of a narrow group of illegal acts recognised as having such an effect. The main criterion applied by the common law courts was the unlawfulness of the act or threat. There was no illegality involved instantly nor was there any tortious act merely a proposed term and condition of employment which the applicant was free or accept or reject.
In recent times, courts have tended to abandon the old objective standard. The Board in Barton v Armstong [1973] 47 ALJR 781 advised Her Majesty that in relation to threats to the person, it is sufficient to show that the will of the victim was overcome and to prove the fear produced by the threat was a factor operating on the mind of the victim at the time the consent was given to the agreement. On this point the Privy Council adopted the dissenting judgment of Jacobs J in the New South Wales Court of Appeal. Even this test does not assist the applicant. Thus, a finding is made that duress is not made out.
In his first fortnight of conducting the respondent’s enterprise the applicant earned $1920.00. Thereafter his fortnightly earnings varied between $1,100,00 and $1,500.00 this included bonus and overtime. It is evident that the applicant was working in an efficient and productive manner. There was nothing wanting in his conduct or performance.
Matters continued in this mould until Friday 28 June 1996. It ought be noted at this point that from February to June the applicant was transferred to work at other establishments. The uncontroverted evidence is that even upon transfer he continued to be paid his emoluments and perquisites, even at a parking station at Manly where no overtime was worked. After a normal working day on the Thursday, the applicant in the company of Ms Speidal and others repaired to the Casino where they spend the night gambling. It is not known if this was the sole activity.
At 6.30am on the morning of 28 June, the Applicant travelled from the Casino to his place of work. The extract from the officer in charge of investigation’s official police note book which formed part of the documentary evidence (exhibit “2”) provides a continuity in the narrative of events.
Upon finishing work at 7.15pm on 27 June, the applicant told the investigating officers he rang off the till; counted the days takings and placed them in the safe. The amount of money was $1,305.00. He was unable to say whether he locked the safe or not, a fact which was confirmed by him in evidence.
Arriving at the car park at 6.30am on the 28th the applicant opened the premises and awaited for Ms Speidal to come to work, even though he thought there was a good possibility that she would not arrive because of the activities of the night before.
Had the applicant worked that day (as was expected) he would have commenced doing so at 8am. However, he decided to go home to recover from his onerous nocturnal pursuits. In the period before he departed and the arrival of Ms Speidal, he encountered a person called Peter, a sergeant in the army, who parked his bicycle at the station. The pair walked to the office together and Mr Doyle showed his companion a laser printer. What occurred thereafter between the two was not a matter of evidence, but it is thought that said office was where the safe was situated.
Having spoken with Ms Speidal when she fortuitously arrived at the premises at 6.45am, the applicant took a taxi cab to his home at Leichhardt, where he telephoned Mr Curtin to inform he would be away from work that day because of influenza.
At this time, the combination of the safe had been recently changed and the persons having knowledge of this were Mr Curtin, Ms Speidal, the applicant and a person called Cameron who was described as Mr Curtin’s offsider. Laura Speidal could have assisted the Court as to whether the safe was open or shut at the time of her discovery.
At some unspecified time before 30 June, the applicant received a telephone call from Mr Curtin informing him that money was missing from the safe and requesting that he attend at the parking station to be interviewed by the police. The applicant declined to do so on the grounds he was too sick. On Sunday 30th June, the applicant was interviewed by the police at the Day Street Station. He made and adopted a record of interview: exhibit “2”.
In the circumstances, the applicant was not charged on the basis of his denial of being the thief and the fact that too many persons had access to the safe. The evidence seemed to suggest the respondent’s managers were notified of the contents of Exhibit “2”.
Mr Pyers, the company’s human resources manager upon being informed of the theft on 28 June went to the Liverpool Street establishment. He made the decision to suspend the applicant on full pay pending the outcome of an investigation into the missing money. He did so, he said in evidence, because he had been informed Mr Doyle was seen on the premises before his rostered shift and thought he may be involved.
Messrs Curtin and Pyers took themselves to the applicant’s home in order to give him the notification of his suspension when they had been frustrated in these attempts to contact him by telephone. They arrived there in the afternoon of 28 June but there was no response to their indication of arrival. Exhibit “A” was left at Mr Doyle’s premises to which he responded by way of telephone. During the call, he indicated he would be at the 1 July meeting he was directed to attend. He was informed that it would be preferable were he to be accompanied by a representative.
Come 1st July 1996, the applicant together with his solicitor, Ms Patricia White attended the company’s premises for the convocation. When it became evident to Ms White that she would require more time to seek instructions on the matter, she sought and was granted an adjournment of the meeting until 4 July.
In the meantime, the respondent served upon the applicant’s solicitors a notice to answer specific questions in relation to the theft. The responses were given on 4 July. The evidence did not disclose the nature of these answers, but the fact that the suspension was lifted at the meeting raises an inference the answers must have been satisfactory to a point. The applicant was not dismissed, but his remuneration for 28 June was not paid; he was directed to attend training courses provided by management and, according to the respondent told to resume his normal duties. The applicant put it another way:-
“Yes, I asked if I’d be at the site and they said yes, you would be and that was the end of the matter”.
On 5 July 1996, upon his arrival at work, Mr Doyle was handed a notice of transfer (exhibit “5”), by Mr Curtin.
Giving evidence in chief the applicant alleges he said to Mr Curtin”-
“You can’t do this . . . I said. I wouldn’t accept the transfer under the conditions.”
Apparently the operations manager retorted:-
“The company has to protect its interests . . . Its up to you to make your decision.”
Counsel for the applicant sought and was granted leave to further cross examine Mr Curtin on this conversation. It was put to him by Mr Brezniak that the applicant’s response to the notice of transfer was “you can’t do this Tom, oh you can’t do this”. To which the witness rejoined that “to my recollection he may have made some comments to that instance, yes .... he may have protested”. Generally Mr Curtin’s recollection of precisely what was said in this instance was poor. However, it was never put to Mr Curtin in cross examination that the applicant had refused to accept the transfer which is quite different from protesting about it.
Some additional questions were posed in this particular cross examination regarding certain hearsay matters. It was put to the witness that he had made some remarks to a person named Cameron McKay that the applicant would not be returning to Liverpool Street. In the circumstances in which this evidence was given, especially because Mr McKay was not called, I do not opine this alleged remark ought he given any weight.
It should be recorded at this point that the transfer was only said be operable for four weeks.
It would appear from exhibit “5” that the applicant would not be receiving any bonuses and overtime during the period. As he was directed to take an hour for lunch, it is evident he would not receive a meal allowance. It is not so clear that he would not be paid overtime, although on balance, I am satisfied, on the evidence that this would have been the case.
Having found clause 22 of Exhibit “1” was not signed under duress so as to render the contract or clause voidable, (if that be Mr Brezniak’s argument) it must be stated that it is clear the respondent had the right to enforce that particular clause. However, that is not the end of the matter. Further consideration will be devoted to this at a later stage.
So far as it is possible to be certain on the evidence, it would seem that the applicant was to receive a base rate of pay plus a supervisors allowance, which was negotiated subsequently, during the four weeks he was to be at Riley Street - $360.00 in respect of the former and $22.50 for the latter. Having negotiated the reinstatement of the supervisor’s allowance at a time after receiving the notice of transfer is hardly consistent with the evidence given by Mr Doyle that he refused to accept the transfer in his conversation with Mr Curtin on the relevant date.
He must not have then been of the opinion that he had no other option but to resign. In evidence the applicant stated that he would not be able to “live” on the income he would receive at Riley Street, without calling any evidence to corroborate this fact. The evidence was wanting as to the applicant’s personal circumstances.
Returning to the chronology of events: here again, it is not entirely clear what in fact occurred in relation to the applicant’s work in the period of 4-5 July and 10th of that month. It may only be arrived at by deduction. If the notice of transfer was received on 5 July as some of the evidence points, then the next two dates were not working days, it being the weekend. The 8, 9, 10 July included two rostered days plus a sick day. The following day, Wednesday 11 July, became not the day the applicant commenced work for the respondent at Riley Street, but the point upon which he began working for a new employer - Kings Parking (see exhibit “7”). It is common ground that the applicant was paid up to and including 10 July 1996. In respect of this matter the applicant was compromised in cross examination. He said he was unemployed “for a little while”.
On the day the applicant worked his first day at Kings, his solicitor wrote a letter to the respondent - exhibit “9”. The relevant part of the correspondence referred to telephone conversations in which it had been stated that the applicant was not prepared to accept the transfer. The ultimate paragraph of the exhibit reads:-
“I anticipate receiving instructions to commence proceedings for constructive dismissal and would be pleased to receive your companies offer of compensation at this early stage so as to avoid unnecessary legal costs”.
Responding thereto on 12 July (exhibit “B”) the respondent raised several points, the full text of which is as follows:-
Re Jamie Doyle
I refer to the abovementioned matter and to your correspondence of July 11 1996. The companies response is as follows:(1)I state again that the reason for your clients transfer was due to the operational requirements of the business and was not due to the incident at 157 Liverpool St.
(2)Your client is required at the Riley St car park for a period of one (1) month as a consequence of another employee of the company proceeding on a period of annual leave. As stated in my letter of July 9 1996 your clients position will be reviewed after that time. The possibility of your client returning to the car park at 157 Liverpool St will be taken into account in the review.
(3)Your client was given notice of his transfer in a manner consistent with the provisions of the Parking Attendants & Motor Car Washers & C (State) Award which, is an award of the New South Wales Industrial Relations Commission and forms the basis of your clients employment relationship with this company.
(4)Your clients employment is not in jeopardy. He is still an employee of this company, will continue tot receive his supervisors allowance and will remain an employee subject to your client fulfilment of his legal obligations. We contend that those legal obligations include, but are not limited to, the following:
(a)Reporting for work at the required time
(b)Obeying all lawful and reasonable directions of the employer
(c)Performing the duties of the position to the best of the employees ability.
I can assure you that any performance related issues with respect to your client will be addressed in accordance with established tests of procedural fairness.
(5)I am instructed that your client has not given notice of his intention to resign his position in accordance with the relevant award provisions. If your client took this decision this would be a voluntary act on his part.
(6)I am further instructed that your client has not reported for work at Riley St as directed and has not notified the company of the reason for his absence.
(7)I would direct that your client contact either Mr Alan Curtin or Mr George Katsadis of this company and advise:
(a)The reason for his absence from work
(b)The estimated duration of his absence from work.
(c)His intentions with respect to his employment with Secure Parking.
(8)I advise that if your client does not comply with the direction set out in seven (7) above by 5.00pm Wednesday July 17 1996 the company will consider that he has abandoned his employment and act accordingly. Separate advice will be sent to your client by certified mail this afternoon in this regard. (see attached)
(9)As your client has not advised of his intentions with regard to his employment your request for compensation is, with the upmost respect, premature. The company will vigorously defend any proceedings that your client may bring against it.
(10)If your client does bring proceedings against this company then the companies threshold application will be that the matter be dismissed as being frivolous and vexatious which, if successful would result in an award for costs being made against your client.
Giving evidence, the applicant was adamant that he was dismissed from duty for not accepting a transfer, without, at this point isolating the acts, omissions, threats or ultimatums upon which he replied to prove this point.
Later on, during his cross examination, he explained the situation thus:-
“I was forced to resign by being transferred at less pay to another station”.
There was no evidence to suggest that the applicant’s temporary transfer involved a loss of status.
Prior to the hearing of the case, the respondent disavowed there was any causal connection between the events of late June and its decision to transfer the applicant. It maintained operational requirements was the reason for sending Mr Doyle to Riley Street as a locum tenens. Whilst never abandoning this justification for the transfer, it emerged in evidence this was not the sole motive.
Mr Pyers was asked this question under cross examination:-
“That the decision not to press charges, did not entirely remove the possibility or more of Mr Doyle having stolen from his employer?”
His reply was:-
“I can’t deny there were concerns”.
On 17 July, the respondent received by facsimile, a letter signed by the applicant and bearing his address (exhibit “6”). An admission was received by the Court that it had been engrossed and sent by his solicitor. Nothing adverse to the applicant falls from this fact. This missive, in effect, reiterates Patricia White and Associates letter of 11 July and acknowledges the receipt of same. This became part of the documentary evidence as exhibit “7”.
At the date of the hearing, the applicant continued to be employed by Kings Parking. He had risen to a car park manager, the same status he enjoyed whilst in the respondent’s employ. According to him he was earning $1000.00 to $1,100.00 per fortnight. On average, marginally less, at that stage, than his income with the respondent.
Credit of Witnesses
Neither Mr Pyers nor Mr Curtin remain employed by the respondent, although the former retains a consultancy as human relations advisor. Especially in the case of Mr Curtin, and to a lesser extent Mr Pyers, this obviates any inference of partisanship being drawn.
This was not a case where there were many stark conflicts in the evidence given by the witnesses for either party. Messrs. Pyers and Curtin’s evidence is chief was not compromised in cross examination. This cannot be truly said of that of the applicant. One example has already been mentioned. Another would be the attempt by the applicant to grossly distort the type of environment to which it was proposed he be sent, without ever having been there.
In arriving at a decision the Court is entitled to place weight on the demeanour and presentation of witnesses and on the consistency and probability of their evidence.
Whilst I did not place great weight on the demeanour of the witnesses, the applicant nonetheless presented in the witness box wearing an air of self assurance bordering on arrogance and “one-upmanship”. These traits appeared to be absent in the respondent’s witness. They presented as credible witnesses endeavouring to give a truthful account of what occurred and indeed, on occasions gave responses not entirely in the respondent’s interests.
To the extent that any evidence given by Mr Doyle and any evidence given by these gentlemen conflict, I prefer the latter.
Conclusion
In submission, Mr Brezniak conceded (without relinquishing his erstwhile stance) that it was not part of the applicant’s case that he could not be rotated as between the respondent’s various parking stations or that his hours of work could not be varied. Having said that, Mr Brezniak continued that the proposed changes in the applicant’s circumstances were such as to constitute a constructive dismissal.
As the terms and conditions of employment were fully set out in exhibit “1” or the award, it was submitted for the applicant that the promise to pay a bonus or overtime, if not a collateral contract, then it constituteded a condition precedent, the consideration for which was entering into the main contract.
Mr Skyring, for the respondent, argued, this submission was suo sibi gladio hunc jugnlo (does not hold water) as the payment of these monies were discretionary, as such could not be terms and conditions of the contract in any sense as they could not be ascertained with any certainty.
It is doubtful in the circumstances of this case (emphasis added) that the promise constitutes consideration for the applicant entering into another contract being a condition precedent to that contract. No bonus or overtime could be guaranteed as they so often are in industrial awards. Payment of both were tied to productivity. The fact that between February and July 1996, the applicant received monies in respect of both does not advance the argument. However this is not something which was a matter of persuasion to the decision in this case.
The issue that emerges from these facts is whether the applicant has demonstrated that there has been a termination of his employment at the initiative of the company. It would appear that the applicant was relying upon were several passages from the judgment of the Full Court in Mohazab v Dick Smith Electronics Pty Ltd 1995 62 IR 200 in particular.
“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.”
These observations had been preceded by a discussion by the Full Court of the relationship between the Convention concerning Termination of the Employment at the Initiative of the Employer, which is Sch 10 to the Act, and the importation into the Act of the meaning of expressions in it by operation of s170CB.
The following passage seemed to be relied upon:-
“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.”
However, it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his employment to establish there has 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” as per Moore J in Rheinberger v Huxley Marketing Pty Ltd 67 IR 154.
Plainly a decision whether there has been a termination of employment at the employer’s initiative must depend upon the facts and circumstances of a particular case. Because each case depends on facts established, it is difficult to be persuaded that any good purpose is served by seeking to identify refinements to broad statements made in established authorities. That is not to say, these authorities are disregarded. Far from it: what is meant is that in arriving at a decision, it is not pertinent to fit a set of facts and circumstances within stated broad pronouncements. Each case must be decided on its own merits.
On the evidence, it is far from clear that Mr Doyle had no choice but to resign. In arriving at this view, I have considered what fell from Madgwick J. in Weston v Union Des Assurances De Paris 17 December 1996 (unreported) and the learned authors of Law of Employment (third edition) (Law Book Company 1990) Macken McCarry and Sappiedeen.
Despite the best efforts of Mr Brezniak persuade the Court to the contrary, there was instantly no absence of a contract which permitted transfer and variation in hours. Implicit in that right, to my mind, is that, there is a corresponding prerogative to have a fluctuating system of payment of remuneration other the amount set out in the award, subject to justice and fairness.
It is indubitable that a transfer which is necessary and not arbitrary or capricious within a business enterprise can be an operational requirement.
Having said that I am satisfied that the respondent had the right to transfer the applicant, the next step in the deliberative process is to consider if that right was exercised bona fide.
In my view, the respondent had good reason for disquiet about the applicant the manager of one of its establishments. Especially one who could not recollect if he had locked a safe. It also had an interest in its employees who attended gambling institutions to its detriment as occurred in this case. surely a reasonable employer could expect to be told the truth about the reason for an employees absence from work. This expectation was not met by the applicant. Nor did he give evidence of a probative nature so as to justify his absence. The respondent was fully apprised of these recalcitrant act of Mr Doyle giving its agents Messrs. Curtin and Pyers a basis for the concerns of which the latter gave evidence, albeit those feelings of uneasiness did not affirmatively point to the applicant being the thief. It would not weigh in the applicant’s favour to be unconcerned with these aspects of his conduct which he must have appreciated were deficient.
There is no difficulty in finding the respondent was reasonably justified in losing confidence in the applicant.
One is reminded that which fell from Northrop J. in Selvachandran v Peteron Plastics Pty Ltd 1995 62 IR 371 at 373:-
“. . . it must be remembered that the employer and the employee . . . each has rights and privileges and duties and obligations conferred and imposed on them.”
What, it is thought, His Honour was emphasising in this passage is that in every employment relationship there must be reciprocity. Here the applicant did not discharge some of his duties and obligations. As a result, concerns prevailed about the measure of security he was affording. A prudent employer could not disregard that.
This disquiet was something which was held bona fide and legitimately; enough to exercise the right to transfer based on its operational requirements.
No explanation was given for the failure to call the person to whom the applicant showed the laser instrument on the early morning of 28 June. The failure to call Ms Speidal, in the absence of probative evidence of an explanation, deprived the Court assistance on resolving some ambiguous matters of evidence. In accordance with the principles enunciated in Jones v Dunkel 101 CLR 298, it is inferred they could not assist the applicant’s case.
Having found the decision to transfer was not made mala fides and was made in aid of a legitimate right, in all the circumstances of the case, the applicant has not persuaded me with cogent evidence that his employment was terminated at the initiative of the employer. He abandoned his job with the respondent, having already found other employment.
Though it was not a matter of argument nor of specific evidence, I have not to this point dealt with when the employment relationship between the applicant and the company came to an end. The provisions of Division 3 Part VIA of the Act are beneficial legislation that should be liberally construed: see Grout v Gunnedah Shire Council 1994 IRCR 143 at 160. The expression termination of employment relates to the cessation of the employment relationship which is not dependant upon the status of the contractual relationship between employer and employee, see: Strachan v Liquorland (Aust) Pty Ltd Moore J., 6 February 1996 (unreported); Rheinberger v Huxley Marketing (Supra). It is my view that when the applicant commenced employment at Kings Parking on 11 July 1996 was the date upon which the employment relationship, effectively, ended.
THE COURT ORDERS:
The application be dismissed.
I certify that this and the preceding page
are a true copy of the reasons for decision of
Judicial Registrar Locke as recorded in the transcript
and revised by the Judicial Registrar.
Associate: A. COONEY
Dated: 8 September 1997
APPEARANCES
Counsel appearing for the applicant: D. Brezniak Solicitors for the applicant: Patricia White Solicitors for the respondent: Mr Skyring Dates of hearing: 7 March 1997, 25 March 1997, 4 April 1997, 13 May 1997
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