Edan Todd Manley v Lovell's Logging Pty Ltd

[1995] IRCA 458

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1722 of 1995

B E T W E E N :

EDAN TODD MANLEY
Applicant

AND

LOVELL’S LOGGING PTY LTD
Respondent

Before:       Judicial Registrar Murphy
Place:         Melbourne
Date:          8 September 1995

REASONS FOR JUDGMENT

In this proceeding under Division 3 of Part VIA of the Industrial Relations Act (the Act) the issue was one that comes before the Court fairly regularly. The issue was whether the Applicant, following an incident involving the use of the Respondent’s fuel, resigned, or alternatively was given no choice and thus there was, for the purposes of the Act, a termination at the initiative of the employer.

Although the employer carries the onus of proof that it had a valid reason to terminate the employment under s170DE of the Act, the Applicant carries the onus of proof that there was a termination at the initiative of the employer.
Background evidence
The Respondent is a logging contractor based in Dartmoor.  It operates in a number of areas in Western Victoria.  The Applicant, who lives across the road from Mr Jeffrey Lovell (Lovell), a Director of the Respondent, commenced working for the Respondent in January 1993 when he was aged 17.  The Respondent’s operations require its employees to work some distance from the company base, operating machines in forest plantations.  The usual arrangement is that employees have a camp or base near the actual operations where they work for the week.  When this occurs, the Respondent provides transport for the employees from the camp, usually a farm house, to the machines.

In April 1993 the Applicant and another employee, Mr Caglion, were working separately from the other employees, on their own machines.  Lovell then advised the Applicant that because he was using his own vehicle to get to and from his machine each day, he was to be provided with fuel by the Respondent.  An arrangement was adopted whereby the Applicant obtained a tank of fuel a week for his diesel powered four wheel drive utility from a bowser located at Lovell’s home.  To access the bowser, the Applicant obtained a key from Mrs Lovell.  The other employee, who drove a petrol powered vehicle, obtained his fuel from a service station near his home. 

In about February 1994 the Respondent commenced operations in the Beaufort area of Victoria.  The Applicant and other employees lived in a farm house and travelled back to their homes in Dartmoor each weekend.  While at Beaufort the employees used a company provided utility to travel from the farm house to the work site each day.

In June 1994 the Applicant commenced working on the Respondent’s operations at Spargo Creek near Daylesford.  Again, the three or four employees involved were camped in a farm house.  The Applicant and another employee, Scott McInnes, were commuting back to Dartmoor each weekend.  They would, with the concurrence of the bush foreman, Mr McDonald (McDonald), work late on Thursday night and leave early each Friday afternoon.  They would return to the farm house late on Sunday evening.

The Applicant, who by this stage was regarded as a valued employee of the Respondent, would, with his mate, McInnes, drive his vehicle from the farm house into the forest each day to the machines they were operating.  The reason he did this was that the utility the men had been using at Beaufort was not at Spargo Creek but in a service station being repaired.

The Applicant is observed taking fuel
At about 6.30 p.m. on Monday, 25 July 1994, McDonald was counting the day’s log production at the Spargo Creek operation.  He heard the sound of a pump operating on a bush tanker.  It was nearly dark at the time and he proceed 100-150 metres to the tanker.  As he arrived, he saw the Applicant hop into his utility and drive off.  The particular tanker was one of two in that area.  One was close to where the Applicant had earlier parked his vehicle near where he was working his machine.  The tanker that he was observed at was about 750 metres further along the track.  The bush tankers were large tankers used to fuel the machines in the forest.

McDonald, concerned that there appeared to be an unauthorised use of fuel by the Applicant, contacted Lovell that evening.  Lovell advised him that there was no arrangement for the Applicant to obtain fuel from bush tankers, that McDonald should keep an eye on things and wait for the Applicant to come forward with an explanation.  McDonald, who was living at the farm house with the Applicant, did not mention the matter to him.

On Monday, 1 August, at about 7 p.m. McDonald was again counting the day’s production.  He saw the Applicant pull up in his utility beside a tanker, turn off the headlights, leaving the parking lights on, and put diesel into the vehicle.  McDonald approached the Applicant and said: “What are you doing?  Pinching fuel?”  The Applicant respondent: “Jeffrey [Lovell] allows me fuel.”  McDonald replied that it looked like “pinching” to him, but that he would let Lovell sort it out.  The Applicant said that in this conversation he explained that Lovell had told him that he could have a fuel allowance when using his own vehicle to travel to and from work.  He also claimed that McDonald had mentioned a letter which had been forwarded to all employees a few weeks earlier to the effect that the employees were no longer provided with fuel by the Respondent.  McDonald denied these latter parts of the conversation.  He further denied that he had ever raised the matter of the letter with the Applicant.
McDonald contacted Lovell that evening and Lovell arranged to come to Spargo Creek the next day.

The conversation in the bush
At around lunch time the next day Lovell and McDonald approached the Applicant.  On the Applicant’s version Lovell said “Mr McDonald caught you last night stealing fuel.”  The Applicant replied that “We are allowed to have a fuel allowance, aren’t we?”  Lovell then said “That’s been finished because letters have been sent out.”  The Applicant replied “Well, as far as I knew, I was allowed but if you believe I was stealing fuel, I will gladly pay back the money.”  According to the Applicant, Lovell then said “I believe that you were stealing it and this is a good excuse for me to get rid of you ... you’re just a trouble maker.”  He also said “Either you leave or I’ll give you the sack.”  The Applicant maintained that Lovell said “I don’t want your kind around here because you are just stirring up trouble with the union.”

Lovell’s version was that when he raised the matter of the fuel, the Applicant had said that he thought that the arrangement in Dartmoor continued.  Lovell replied that it was completely different.  Lovell had then asked the Applicant what he should do.  The Applicant had replied that “he didn’t know”.  Lovell then said that he should get the police in and charge the Applicant with stealing.  Lovell had then indicated that such a course “would not go down too well for you and your family back home” and would create difficulties for him in obtaining another job in the industry.  Lovell had then suggested that the best thing he could do perhaps was resign and he would not bother about getting the police out.  The Applicant had replied “What, right now?”  and Lovell had said that was most appropriate.  The Applicant agreed.  The three then agreed that the whole matter would be kept amongst themselves and that, if necessary, the Applicant could tell people he had had a personality difference with McDonald. 

The Applicant then left the site.  The Applicant gave evidence that 4 days later, he met Lovell and told him that “If you believe I was stealing the petrol, then take me down to the police station now.”  Lovell denied any such conversation.  The Applicant then saw a solicitor and the solicitor contacted the union and advised it about the matter.  The matter was left in the hands of the union representative who advised that the matter was in hand.  Subsequently, after a delay of some months, the Applicant contacted another official in the union and was referred to his present solicitors.  Finally, in February, 1995 an application under Part VIA of the Act was issued.

Lovell gave evidence that he was contacted by Mr Love, of the union, a few days after the resignation.  He advised Love what had happened and Love accepted Lovell’s account.  Lovell gave evidence that at the time of the resignation, there were also discussions between himself and the union about conditions and entitlements for the employees and that these matters, as far as the Respondent was concerned, were in the hands of the Chamber of Commerce.  No evidence was called from the union.

Other evidence
The Applicant gave evidence that he was an unofficial union representative for employees of the Respondent.  He said that he raised matters on behalf of the men with the union organizer.  As a result of this, the organizer had been on the site twice in the previous couple of months.  On the first occasion McDonald gave evidence that he accompanied the organizer and found that there were no grievances among the employees.  On the second occasion the Applicant and McInnes had raised some concerns which McDonald could not remember.

It was the Applicant’s evidence that the reason he was using his vehicle to travel from the farm house at Spargo Creek to the work site was that the utility had not been brought down from the Beaufort operations.  He further said that the terrain required a four wheel drive vehicle.  The Respondent’s witnesses denied this. He denied that he and McInnes had been requested on three occasions to bring the utility back from Beaufort for use at the Spargo Creek operations.  The Applicant admitted that McDonald could have made arrangements to transport him from the farm house to the machines as necessary. He also said that it was common practice for other employees to use the company fuel.  His evidence on this point, however, lacked any specificity.  He agreed that he had never raised the question of reimbursement of his fuel with McDonald or Lovell.  He maintained, however, that in a conversation with Lovell soon after he joined the Respondent, he was told that “if you use your vehicle for company purposes, you are given fuel”.  Lovell denied any conversation in those terms.
McInnes gave evidence that he had observed the Applicant filling his vehicle from a bush tanker.  The Applicant had informed him that he had an arrangement with Lovell.  He said that he believed that the Applicant only took 15-20 litres when doing so.  He was unable to give a satisfactory account as to how he estimated that amount.  The Applicant maintained in his evidence that he only took 15-20 litres which was to cover him for the 50 km per week that he was travelling to and from the farmhouse. 

Findings on the evidence
The central question in this case is to determine whether there was a coerced resignation here.  A coerced resignation was denied by Lovell and McDonald.  The Applicant maintained, however, that he was given no choice.  It was put by him that the incident involving the fuel was essentially “a set-up” and that he was terminated for his union activities.  It was the Respondent’s version that there was no pressure on the Applicant to resign but that he did so to avoid the matter being taken further.

The Respondent’s version, leaving aside the oral evidence of Lovell and McDonald, is supported by an analysis of what happened based on human experience.

The Applicant’s version that he had an entitlement or right to obtain fuel at Spargo Creek strains credibility.  The position at Spargo Creek was different from the arrangement which ended some 7 months earlier, at Dartmoor.  This was because at all times McDonald, as bush foreman, was able to transport the men from the farm house to their machines.  Further, I accept McDonald’s evidence that the Applicant and McInnes were requested on three occasions to bring the company utility back from Beaufort.  All these matters alone indicate that had the Applicant raised the question of reimbursement of his fuel with McDonald or Lovell, he would have most likely have been met with a response that such reimbursement was unnecessary given company provision of transport.

Next, the Applicant’s calculations as to his entitlement are vague in the extreme.  It appears that he was travelling approximately 50 km per week yet he took 15-20 litres of fuel.  This is very high fuel consumption.  The lack of any measuring device on the bush tanker would also make precise measurement impossible.  In addition, no accounting could be done.  This contrasts with the position at Dartmoor where the Applicant was allowed, under supervision, a tank of fuel per week.  It contrasts with the evidence from the Respondent that employees who had access to company fuel obtained supplies at service stations and were required to sign for the amounts.  Further, it was open to the Respondent to find that there was an element of furtiveness in the way that the Applicant obtained the diesel on 25 July, when he travelled some 750 metres from the location of the tanker closest to his vehicle.

When all these matters are considered, the Applicant was faced with real difficulty in explaining his position regarding the fuel should the matter be referred for police investigation.  Such an investigation would also be embarrassing to his family, given his father’s position as a police officer, and the previous good relationship between the families.
In these circumstances, there is much force in Lovell’s evidence that, when suggesting resignation, he was “trying to do the best thing for the kid to get him on his feet again.”  This is consistent with the fact that at no time after the event did the Applicant’s father raise the matter with Lovell even though the two of them met socially on a number of occasions and lived across the road from each other.  I found the Applicant’s father’s explanation as to why he failed to raise the matter with Lovell unconvincing.

A further consideration is that Lovell gave evidence his company had a good relationship with the union.  He denied that he made any comments about the Applicant’s union activities in the course of the conversation in the bush.  The fact that the Applicant was, on his version, an unofficial union representative also tells against the Applicant’s version that he believed he had an entitlement to the fuel.  If he believed that he had an entitlement to fuel at Spargo Creek, why did he not raise the matter with McDonald or Lovell?  If other employees were also being provided with fuel via the bush tankers where was the evidence?

Ultimately, this matter comes down to the question of whose version of events should be accepted.  I prefer the evidence of Lovell and McDonald, both credible witnesses, over that of the Applicant and his witnesses.  I reject the Applicant’s evidence that Lovell gave him any open undertaking that if he used his vehicle for company purposes, he was to be given fuel.  The only arrangement was the one at Dartmoor, some seven months earlier, which was under the supervision of Mrs Lovell.  I also reject the Applicant’s evidence that any reference was made by McDonald or Lovell to a recent letter forwarded to some employees ceasing the previous arrangement of booking up petrol at service stations.  The issue had nothing to do with the Applicant because, I find, he was never the subject of such an arrangement.

In relation to the conversation in the bush, I am satisfied that at no stage did Lovell threaten to terminate the Applicant’s employment unless he resigned.  The conversation never approached the point of Lovell seeking to force the Applicant out.  On the contrary I am satisfied that Lovell, when faced with what he regarded as a clear case of theft, gave the Applicant, a valued employee hitherto, the opportunity to gracefully resign.  I am satisfied that the Applicant accepted this opportunity and agreed with Lovell and McDonald that the matter would not be further raised.  The difficulties the Applicant faced in explaining his actions make his decision to avoid the need to do so a highly likely one in the circumstances.

I reject the Applicant’s evidence that Lovell gave, as a reason for the termination, the Applicant’s union activities.  I also reject his evidence that the whole matter was a set-up and designed to get rid of him for his union activities.  I also reject the Applicant’s evidence that he raised with Lovell the question of referring the matter to the police four days later.

There was a cogency in the Respondent’s version that accords with human experience.  In contrast the Applicant’s version suggested motives which do not accord with the presentation and demeanour of Lovell and McDonald.
Conclusion
It follows from the above that I reject the Applicant’s submission that there was any constructive dismissal here.  I am satisfied that there was a consensual resignation by the Applicant on 2 August 1994.  It follows that I am satisfied that there has been no termination at the initiative of the employer and that the Court therefore has no jurisdiction.  The Application must be dismissed.

Order of the Court
The application is dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. The application is dismissed.

I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.

Associate:            
Dated:  8 September 1995

Solicitor for the Applicant:     Slater & Gordon 
Counsel for the Applicant:     Mr L. Carter

Solicitor for the Respondent:  Phillips Fox
Counsel for the Respondent:   Mr A. Lindeman

Date of hearing:  26 & 27 July 1995

Date of judgment:                   8 September 1995

C A T C H W O R D S

INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - whether RESIGNATION.

Industrial Relations Act 1988 s. 170DE.

EDAN TODD MANLEY  v  LOVELL’S LOGGING PTY LTD

No. VI 1722 of 1995

Before:  Judicial Registrar Murphy
Place:  Melbourne
Date:  8 September 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1722 of 1995

B E T W E E N :

EDAN TODD MANLEY
         Applicant

AND

LOVELL’S LOGGING PTY LTD
Respondent

MINUTES OF ORDERS

Judicial Registrar Murphy  8 September 1995

THE COURT ORDERS:

1. The application is dismissed.

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