Eric Chelin v Powercrank Batteries T/A Powercrank Batteries Pty Limited
[2011] FWA 4811
•22 JULY 2011
Note: An appeal pursuant to s.604 (C2011/5359) was lodged against this decision - refer to Full Bench decision dated 10 October 2011 [[2011] FWAFB 6781]for result of appeal.
[2011] FWA 4811 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Eric Chelin
v
Powercrank Batteries T/A Powercrank Batteries Pty Limited
(U2011/6465)
VICE PRESIDENT WATSON | SYDNEY, 22 JULY 2011 |
Application for unfair dismissal remedy - Fair Work Act s394 - jurisdictional question - whether employee resigned or terminated - finding of fact that employee resigned - no jurisdiction - application dismissed.
Introduction
[1] This decision relates to an application for an unfair dismissal remedy by Eric Chelin concerning the alleged termination of his employment by Powercrank Batteries Pty Ltd (Powercrank). The application is made under s394 of the Fair Work Act 2009 (the Act).
[2] At the determinative conference regarding this matter on 8 July 2011 Ms M Vegan, represented Mr Chelin and Mr T Samlidis, represented Powercrank. The preliminary issue which requires determination is whether Mr Chelin was dismissed by Powercrank or whether he resigned from his employment.
The issue for determination
[3] It is common ground that Mr Chelin can only be regarded as having been dismissed if his employment was terminated on Powercrank’s initiative: s386(1) of the Act. Mr Chelin does not contend that he resigned from his employment because he was forced to do so. If there is no dismissal within the meaning of the Act then Fair Work Australia has no jurisdiction to deal with Mr Chelin’s application.
Background
[4] I will confine the summary of events to those relevant to the issue for determination. Powercrank asserts that Mr Chelin orally resigned from his employment in a discussion with the Managing Director, Mr Samlidis, on 4 March 2011. Mr Chelin asserts that Powercrank orally terminated his employment in a discussion with Mr Samlidis on 21 March 2011.
[5] Mr Chelin and Mr Samlidis gave evidence about their conversations on 4 and 21 March 2011 and in relation to the surrounding circumstances. Mr Michael Franks, a Manager at Powercrank, gave evidence about a conversation he witnessed between Mr Chelin and Mr Samlidis in February 2011. Mr Fernando Vicario, the Warehouse Manager of Powercrank, gave evidence about the conversations he witnessed on 21 March 2011. Mr Chelin’s brother, Mr Enrico Chelin, gave evidence about conversations he had with Mr Chelin after he returned home on 21 March and on the following day. Mr Jason Cheetham, the National Sales Manager of YHI batteries, gave evidence about conversations that he had with Mr Chelin concerning Mr Chelin’s employment by that company from 4 April 2011.
[6] Mr Chelin, Mr Samlidis and Mr Franks gave evidence about a heated conversation between Mr Chelin and Mr Samlidis in February 2011. The versions are broadly consistent. It appears that both Mr Chelin and Mr Samlidis were speaking in raised voices and were swearing. Mr Chelin abused Mr Samlidis, said that he could get another job anywhere and angrily left the premises. Mr Samlidis went after him and they both returned soon after. Mr Samlidis said that he persuaded Mr Chelin not to leave Powercrank.
[7] In my view the critical events were those of 4 March 2011. Other conversations, such as the one referred to above, only serve to provide a context for the conversation or evidence of understandings gained from the 4 March conversation which may assist in determining the true nature of what was said between the parties on 4 March.
[8] Both Mr Chelin and Mr Samlidis gave evidence of the conversation between them on 4 March. Mr Samlidis gave evidence that Mr Chelin told him that he had two job offers and that he gave four weeks notice of termination. Mr Samlidis said that he tried to talk Mr Chelin out of resigning and that Mr Chelin had said that he would think about it but that his resignation still stood. Mr Samlidis said that Mr Chelin expressly acknowledged that his departure would mean that he would not receive long service leave when his 10 years service came up about a year later but that the extra money he would receive from the new employer would make up for that. Mr Chelin gave evidence that he did not resign or give four weeks notice on 4 March and that he had merely enquired as to what period of notice was required to terminate. He said that he had no intention of resigning and would not wish to lose his impending long service leave entitlement by resigning.
[9] After 4 March there was little relevant interaction between Mr Chelin and Mr Samlidis because of Mr Samlidis’s various travel commitments until 21 March 2011. On 21 March, Mr Vicario and Mr Chelin had a conversation in which Mr Chelin gave Mr Vicario the impression that he was leaving in two weeks time. Mr Chelin gave Mr Vicario his contact phone number so that they could remain in touch.
[10] Later that same morning Mr Chelin and Mr Samlidis again had a conversation, some of which was overheard by other employees including Mr Vicario. Mr Samlidis gave evidence that Mr Chelin commenced the conversation by stating, as he walked by, that he would be leaving in two weeks. Mr Chelin gave evidence said that he made a comment to the effect that it had been two weeks since they last spoke and that they were due to speak further but had not done so. Mr Samlidis then asked which battery company Mr Chelin was going to work for. This aspect of the conversation was repeated as the two men walked toward Mr Chelin’s work van and was overheard Mr Vicario. Mr Samlidis said that Mr Chelin refused to answer the question and said words to the effect that he did not have to advise Mr Samlidis of the company he was going to. Mr Chelin does not deny that a conversation about a future employer occurred but said that as he was not planning to leave and had not resigned he said that he was not going anywhere. Mr Samlidis said that as Mr Chelin would not disclose the identity of his new employer he asked him to finish that day. Mr Vicario confirms hearing these comments of Mr Samlidis.
[11] Mr Chelin commenced employment with a competitor of Powercrank, YHI, on 4 April 2011. Evidence was led about the timing of offers to join that company and contact between Mr Chelin and YHI Manager, Mr Cheetham, by telephone and by Mr Chelin and his brother visiting that company on 22 March. I do not believe that the evidence gives rise to any reliable findings on any relevant issue.
Findings
[12] In my view the evidence of Mr Samlidis regarding the content of the discussions on 4 March is to be preferred. His version is more consistent with the surrounding circumstances including earlier successful efforts to persuade Mr Chelin not to leave the Company, a confirmatory conversation between Mr Chelin and Mr Vicario on 21 March and concerted efforts by Mr Samlidis on 21 March to ascertain Mr Chelin’s new employer as witnessed by Mr Vicario and admitted by Mr Chelin. None of this would have occurred if Mr Chelin had merely enquired about the required notice period. I found Mr Chelin somewhat tentative, evasive in his evidence about these events and he was not able to explain aspects of his evidence that appeared implausible.
[13] I find that Mr Chelin did give notice of termination of his employment on 4 March 2011. The request by Mr Samlidis that Mr Chelin finish up on 21 March arose directly from the failure of Mr Chelin to disclose his future employment plans. In the circumstances this merely amounted to a direction that Mr Chelin not work out the remaining period of his employment and was not a dismissal.
[14] As I have found that Mr Chelin was not dismissed by his employer the application is invalid.
Conclusion
[15] As the termination of Mr Chelin’s employment was not at the initiative of the employer there is no jurisdiction to deal with this application. The application in this matter is dismissed.
VICE PRESIDENT
Appearances:
Ms M. Vegan for Mr Eric Chelin.
Mr T. Samlidis for Powercrank Batteries Pty Ltd.
Hearing details:
2011.
Sydney.
July 8.
Printed by authority of the Commonwealth Government Printer
<Price code A, PR512425>
0
0
0