Exton v Woolworths (Vic) Pty Ltd

[1996] IRCA 492

DECISION NO:492/96

C A T C H W O R D S

INDUSTRIAL LAW - Termination of employment - cessation of employment not a probable result of employer’s conduct - termination not at initiative of employer

CASES:

Mohazab v Dick Smith Electronics Proprietary Limited No.2 (1995) 62 IR 200

Slifka v J.W. Sanders Proprietary Limited, IRCA (unreported) 19 December 1995, Matter No. VI-2741R of 1994, Decision 701/95

Rheinberger v Huxley Marketing Pty Limited IRCA (unreported) 16 April 1996, NI-2064R of 1995, Decision 138/96

PETER EXTON -v- WOOLWORTHS (VIC) PTY LIMITED

No. VI-3924 of 1995

Before:  Ryan JR
Place:  Melbourne
Date:  30 September 1996

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-3924 of 1995

B E T W E E N :

PETER EXTON
Applicant

AND

WOOLWORTHS (VIC) PTY LIMITED
Respondent

MINUTES OF ORDERS

Judicial Registrar Ryan       30 September 1996

THE COURT ORDERS:

1. That the application be dismissed.

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

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI-3924 of 1995

B E T W E E N :

PETER EXTON
Applicant

AND

WOOLWORTHS (VIC) PTY LIMITED
Respondent

Before:      Ryan JR
Place:       Melbourne
Date:         30 September 1996

REASONS FOR JUDGMENT
Delivered Ex Tempore

It is not necessary to summarise the factual situation leading up to the ending of the employment relationship.

This case turns on what happened at a meeting on 3 July 1995 when the Applicant and two senior managers of the Respondent company, namely, Messrs Brookes and Luscombe, met together.  A telephone conversation between the Applicant and Mr Brookes on 29 June is also of some significance but the kernel lies in findings as to what happened at the meeting on 3 July.

I have examined my notes of Mr Brookes' evidence again and I have considered all of the evidence given on the first day of the hearing.  Without going into detail, I can and do say that the evidence of Messrs Brookes and Luscombe in respect of the meeting on 3 July is more impressive and consistent and is inherently a more likely version of what occurred. However, even if the version of the Applicant was accepted, this would not suggest oppressive and unconscionable conduct by Messrs Brookes and Luscombe with the intention of bringing about an end to the employment relationship or creating a situation in which the end of the employment relationship was the probable outcome.

I agree with both counsel that a termination of employment at the initiative of the employer is a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. Mohazab v Dick Smith Electronics Proprietary Limited (No.2) (1995) 62 IR 200 at 205; Slifka v JW Sanders Proprietary Limited, North J (unreported) 19 December 1995, VI-2741R of 1994, Decision No 701/95.

I also agree with both counsel that the unreported decision of Moore J, 16 April 1996 Rheinberger v Huxley Marketing Pty Limited, NI-2064R of 1995, Decision 138/96 is of assistance, particularly at 14 in citing as follows from the Full Court in Mohazab:

“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.”

Moore J went on to state at 14 and 15 in Rheinberger:

“It is plain from these passages - that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had 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 and perhaps action which would, on any reasonable view, probably have that effect.  I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude.  I am prepared to assume for present purposes that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

I have reached a conclusion that the cessation of the employment was not a probable result of the employer's conduct. In Rh

einberger the Court concluded that the Applicant had not established that there was a termination of her employment at the initiative of the employer.  I too have reached that conclusion on the totality of the evidence and preferring the evidence of Messrs Brookes and Luscombe over the Applicant but I would probably have reached that conclusion even if I accepted the Applicant's version of the final meeting on 3 July.

It follows from my conclusion that the application lacks jurisdiction and must be dismissed.

MINUTES OF ORDERS

THE COURT ORDERS:

1. That the application be dismissed.

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

I certify that this and the preceding 2 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan.

Associate:          
Dated:  30 September 1996

Solicitors for the Applicant:           Wright Smith
Counsel for the Applicant:            Mr B Lacy

Solicitors for the Respondent:      Clayton Utz
Counsel for the Respondent:                 Mr J Bourke

Date of hearing:  22 July 1996 and

30 September 1996
Date of judgment:  30 September 1996