Ghana Prasad v SRS Electric NSW Pty Ltd T/A Clive Wilson Switchgear

[2014] FWC 8218

[2014] FWC 8218

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ghana Prasad
v
SRS Electric NSW Pty Ltd T/A Clive Wilson Switchgear
(U2014/10495)

COMMISSIONER BULL SYDNEY, 20 NOVEMBER 2014

Application for unfair dismissal, ex-tempore decision, application dismissed.

[1] This is a decision given extemporaneously on transcript following a hearing in Sydney on 12 November 2014, now edited and published.

[2] The matter was attempted to be conciliated prior to the hearing but has remained unresolved.

Background

[3] In this matter the applicant, Mr Prasad, has made an application under s.394 of the Fair Work Act 2009 (the Act) alleging that his dismissal by SRS Electrical NSW Pty Ltd T/A Clive Wilson Switchgear (the respondent) was harsh, unjust or unfair.

[4] The applicant worked for approximately seven months for the respondent and prior to that for another short period as a casual employee for the respondent.

[5] The respondent opposed the application on the jurisdictional basis that there was no dismissal, rather that applicant resigned on his own volition.

[6] The resignation of the applicant is evidenced by the written document signed by the applicant dated 27 June 2014. 1 The resignation letter is addressed to HR, SRS Electrical, from the applicant, and states:

“Further to the discussion with the Director as said I am giving my resignation and is (sic) effective from today.

I am thanking the company for giving me the opportunity to work.

Thank you,

Ghana Prasad.”

[7] The respondent argues that this resignation was freely given.

[8] The applicant was represented by Ms Kanchan, the applicant’s daughter and the respondent was represented by Mr Staudt, Operations Manager.

Applicant’s submissions

[9] The applicant submits that his resignation was a constructive dismissal. The applicant gave evidence and was cross-examined.

[10] The applicant submits that as a result of his treatment by the respondent’s Managing Director, Mr Jonce Belevski on 27 June 2014, he reacted in the heat of the moment by resigning, although this was not his intention.

[11] The applicant states on the afternoon of 27 June 2014, the Managing Director, Mr Belevski, in front of the applicant’s work colleagues, made comments to the effect that he was a “slow worker”, was an “idiot” and “if he wanted to leave he should do so” 2

[12] These comments followed management criticism of how slow the work project the applicant was working on was proceeding. The applicant states following these comments he just wanted to leave the workplace and had commenced to do so when he was approached by Ms Alex Belevski, the respondent’s Human Resources Officer, who is also the Managing Director’s daughter.

[13] Following a discussion with Ms Belevski, she requested that the applicant write out his resignation. The applicant submits that he was not thinking straight at the time.

[14] The applicant says that when Mr Belevski spoke to him he was angry and raised his voice. This humiliated the applicant in front of his work colleagues.

[15] Ms Kanchan on behalf of the applicant submitted that the approach by the Managing Director should have been conducted in private and not in front of other workers.

[16] The applicant in his evidence stated that Mr Belevski would not listen to his explanation as to why the work project was behind schedule. The applicant further stated that he had never previously had any performance issues. The applicant denied in evidence that any employee of the respondent had asked him to cool down or reconsider his decision to leave or resign. 3 Mr Prasad on leaving the work premises stated he was not further contacted by the respondent.

Respondent’s submissions

[17] In respect of the respondent’s evidence, the respondent called three witnesses:

● Mr Jonce Belevski, Managing Director,
● Mr Dan Goundan, Production Manager; and
● Ms Alex Belevski, Human Resources Officer.

[18] Mr Belevski stated it was not uncommon being a small to medium size business for him to speak directly to employees. 4

[19] Mr Belevski stated that Blue Scope Steel the customer for a job the applicant was working on had inquired about the progress of the job. Mr Belevski asked the applicant why the job was taking so long. He stated he did not shout at the applicant and had only asked questions. Mr Prasad responded to these questions by saying words to the effect, “If you don’t like how I work, I will resign”. 5

[20] Mr Belevski says he replied that this was not necessary; however, the applicant continued to express this view and commenced to leave.

[21] Mr Belevski denies that he said that the applicant was a slow worker or called the applicant an idiot, saying that he did not use the word “idiot”. 6

[22] Mr Belevski stated that had the applicant not resigned he would still be working for the respondent. 7

[23] Mr Dan Goundan, Production Manager, gave evidence that he was present at the conversation between the applicant and Mr Belevski. He stated that although the approach of Mr Belevski was firm, Mr Goundan says that he did not shout at the applicant.

[24] Following the applicant stating that he wished to resign, Mr Goundan says he approached Mr Prasad and asked him to cool off and to think about whether he really wanted to resign. 8

[25] Ms Belevski, the Human Resources Officer gave evidence that the applicant came to her office to advise that he had resigned.

[26] Ms Belevski then asked whether she could conduct an exit interview and asked Mr Prasad to tell her what had actually occurred. Mr Prasad told Ms Belevski that Mr Belevski was not happy with his work. Ms Belevski stated that she had made it clear to the applicant that he was not being terminated.

[27] Ms Belevski’s evidence was that she asked the applicant whether he wanted to have a meeting with the Managing Director, the Production Manager and herself to try and resolve the problem and that there could be other ways to resolve the issue other than through his resignation. 9

[28] Ms Belevski submits that Mr Prasad did not wish to change his mind, upon which he was asked to formalise his resignation in writing. Ms Belevski’s evidence was that the applicant wrote out the terms of his resignation without any prompting or pressure.

Relevant legislation

[29] In respect of the legislation that applies to matters of this kind, the Act at s.386 defines the meaning of dismissed and it includes at s.386(1)(b):

Meaning of dismissed

(1) A person has been dismissed if:

...

(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

[30] The Explanatory Memorandum to the Fair Work Bill 2008 in respect of this section extrapolates on the meaning of dismissed at Item 1528. Reference to s.386 and the meaning of dismissed is discussed, it states:

This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person‘s employment with his or her employer was terminated on the employer‘s initiative. This is intended to capture case law relating to the meaning of termination at the initiative of the employer (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

[31] At Item 1529 it states:

Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

[32] Item 1530 goes on to state:

Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.

Conclusion

[33] There are a number of cases in this Commission and its predecessors that have addressed the issue of a constructive dismissal.

[34] In the matter of ABB Engineering Construction Pty Ltd v Doumit 10, the Full Bench of the Australian Industrial Relations Commission referred to the principles applicable to determining whether there had been a termination at the initiative of the employer saying:

The principles applicable to determining whether in particular circumstances there has been a termination at the initiative of the employer have been considered by the Industrial Relations Court in a number of cases. In that Court, and in this Commission, the unanimous decision in Mohazab v Dick Smith Electronics (No. 2) (supra) has been adopted as an accurate statement of the primary principles.

[35] The decision then states:

We consider the relevant principle is sufficiently summarised in a recent decision of a Full Bench on another section 170ECA appeal about the principle crystallised in Mohazab:

‘That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.’

[36] The Full Bench states further:

Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. 11

[37] In this matter the applicant has completed a written resignation letter. At no stage since the writing of the resignation letter has the applicant attempted to rescind his written resignation. The resignation was effected on a Friday afternoon, the applicant did not return the following Monday, or at any time, and plead that this conduct occurred in the heat of the moment. This is an argument only now raised in his unfair dismissal application.

[38] The Commission is required to consider whether due to the conduct of the respondent the applicant was forced to resign. There is no evidence that there was any ultimatum given by the respondent to the applicant. There was no previous history that the respondent had conducted themselves in a manner that would result in the events of 27 June 2014 being a further event triggering a forced resignation.

[39] As such, there was no demonstrated course of conduct that I need to consider.

[40] I accept had it not been for the discussion between the applicant and Mr Belevski on Friday afternoon, 27 June 2014 that the applicant would not have resigned. However, that is not sufficient to hold that a constructive dismissal was effected.

[41] There was no evidence to suggest that the respondent’s conduct on 27 June 2014 was an attempt to obtain the applicant’s resignation and it has not been demonstrated to my satisfaction that the applicant had no effective or real choice but to resign.

[42] It could not be said, even accepting the applicant’s argument at its highest that the respondent’s comments were sufficient to force a resignation nor were they a result of a cumulative series of events that when taken collectively produced a result where the applicant had no alternative other than to resign. The resignation letter speaks for itself. The applicant had no real argument in evidence that this letter was not written freely or was not an accurate reflection of the applicant’s state of mind at the time. Although the Applicant stated he was not thinking clearly at the time. 12

[43] While I accept that the manner in which the applicant was spoken to on the day of his resignation may have been in a stern or harsh form, the comments were not, in my view, of such character to evoke a forced resignation.

[44] I also accept that having heard the evidence of Mr Goundan and Ms Belevski, that they both cautioned the applicant against making a hasty decision and advised that his resignation was not being sought by the respondent. For his own reasons the applicant maintained his position of resignation.

[45] Ms Kanchan submitted that this application was in part made to help the respondent realise its mistake and improve on its management style. While the respondent may have every reason to improve its management style, it is not sufficient in itself to convert any management inadequacy into conduct that has forced the applicant to resign.

[46] I find that the applicant was not constructively dismissed in the terms provided by at s.386(1)(b) of the Act and therefore no jurisdiction for the Commission to deal with the application exists.

[47] The application is therefore dismissed.

COMMISSIONER

Appearances:

Ms Kanchan on behalf of the applicant.

Mr Staudt for SRS Electric (NSW) Pty Ltd.

Hearing details:

2014.

Sydney:

12 November.

 1   Exhibit A1, Applicant’s resignation letter.

 2   Transcript PN215.

 3   Transcript PN336.

 4   Transcript PN529-530.

 5   Transcript PN510.

 6   Transcript PN525 and 614

 7   Transcript PN557.

 8   Transcript PN639.

 9   Transcript PN716.

 10   Print N6999.

 11   Ibid at pp. 11-12.

 12   PN334

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