Grace v Hartman and Associates Pty Ltd

[1996] IRCA 383

DECISION NO:  383/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1935 of 1996

BETWEEN:

John Roy GRACE
Applicant

AND

HARTMAN & ASSOCIATES PTY LTD
Respondent

REASONS FOR DECISION
(delivered ex tempore and revised from the transcript)

6 August 1996  PARKINSON JR

This is my decision in relation to a Notice of Motion filed on 31 July by the respondent in matter number 1935 of 1996. In that Notice of Motion, the respondent contends there is no jurisdiction in the court in respect of the section 170EA application, as the application does not result from termination of employment at the initiative of the employer.

The respondent contends in affidavit material, filed in the proceeding as exhibits R1 and R2, that the applicant voluntarily resigned his employment on 3 May 1996, and subsequently took no steps during the course of the notice period running in respect of that resignation to revoke the resignation, steps which might suggest that the resignation was anything other than voluntary.

The applicant interpreted discussions he held with Mrs Hartman, a director of the respondent, on 3 May 1996, as constituting a demotion by the respondent by a reduction of his wages by $20,000 per annum.  This, the applicant said, caused him to resign his employment.  For there to be a termination of employment at the initiative of the employer, there must be an act setting in train the events leading to the termination.  In my view, it is not sufficient that there be mere discussions as to the applicant's future, or future employment with the respondent.

Further, in that interview, there was no mention of termination of employment, nor is it suggested that it was said to the applicant that he should resign, nor was any invitation extended to the applicant for him to resign, and it was not said by any person to the applicant that he would be demoted to a clerical position.

The applicant's interpretation of the intention of Mrs Hartman was that these steps were proposed to be taken.  However, he readily conceded in his evidence that this was never actually said to him.  The evidence establishes that no steps were taken by the respondent to terminate the employment of the applicant, as at the point of time the applicant resigned his employment on 3 May 1996. 

These facts, together with the fact that the applicant, shortly prior to the date of the interview with Mrs Hartman on 3 May 1996, had already indicated an intention to resign his employment, leads me to the conclusion that there was no termination of employment at the initiative of the employer.

On that basis the Notice of Motion, seeking as it does the dismissal of the proceedings for want of jurisdiction, is in that respect upheld.  That is paragraph 1 of the Notice of Motion, dated 31 July 1996.

Application has been made further in that Notice of Motion that the applicant pay the costs incurred to date of the respondent.  It has been put to the court by counsel representing the respondent, Mr McLaughlin, that the proceeding was initiated vexatiously, and without reasonable cause, and upon that basis an order for costs against the applicant ought lie in favour of the respondent.  This is my ruling in relation to that application, as contained in the Notice of Motion. 

The applicant believed that his resignation was initiated by the conduct of the respondent.  He was genuine, and not unreasonable, in forming the view that the termination of his employment was constructive.  Notwithstanding this view, genuinely and reasonably formed by the applicant, I have found as a consideration of the facts of this case, that the applicant's employment was not terminated by the respondent. 

Nonetheless, it was necessary for me to make findings of fact, by reference albeit to minor competing versions of the facts. On that basis, I decline to make a finding that the applicant initiated the proceedings pursuant to section 170EA vexatiously or without reasonable cause. I further decline on that basis to make any order for costs.

The application which is made pursuant to section 170EA of the Industrial Relations Act is dismissed. The application contained in paragraph 1 of the respondent's Notice of Motion is upheld. The order of the court will be, however, that the application be dismissed.

I certify that this and the preceding two (2) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson as recorded in the transcript
and revised by the Judicial Registrar.



Associate:
Dated: 6 August 1996



APPEARANCES

Applicant in person
Counsel appearing for the respondent:	Mr D. McLaughlin
Solicitors for the respondent:	Phillips Fox
Dates of hearing:	6 August 1996

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - - whether voluntary RESIGNATION - whether TERMINATION OF EMPLOYMENT at initiative of employer - demotion

Industrial Relations Act, 1988, s170EA

JOHN ROY GRACE v HARTMAN & ASSOCIATES PTY LTD
VI 1935 of 1996


Before:  PARKINSON JR
Place:  MELBOURNE
Date:  6 AUGUST 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 1935 of 1996

BETWEEN:

John Roy GRACE
Applicant

AND

HARTMAN & ASSOCIATES PTY LTD
Respondent

MINUTES OF ORDERS

6 August 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. The application be dismissed.

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