Jason Moore v Newspot Holdings Pty Ltd T/A Newspot Motors
[2017] FWC 3380
•22 JUNE 2017
| [2017] FWC 3380 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Jason Moore
v
Newspot Holdings Pty Ltd T/A Newspot Motors
(U2017/4165)
| Commissioner Platt | ADELAIDE, 22 JUNE 2017 |
Application for an unfair dismissal remedy – dispute re dismissal – applicant submitted letter of resignation then sought to withdraw same – held employee resigned – application dismissed.
Mr Jason Moore has lodged an application pursuant to s.394 of the Fair Work Act 2009 (the Act) seeking a remedy for an alleged unfair dismissal by his former employer, Newspot Holdings Pty Ltd T/A Newspot Motors (Newspot) which took effect on 29 March 2017.
At the time of his dismissal, Mr Moore was employed as a Service Advisor at the Eastside premises in Hampstead Gardens. Newspot is a car dealership that sells and services vehicles from three locations in Adelaide. Eastside is located in Hampstead Gardens and has sales and service facilities, across the road from Eastside is the Newspot Commercial vehicle salesroom.
The application did not resolve at conciliation and the matter was listed for hearing on 20 & 21 June 2017. Directions were issued for the filing of statements, outline of arguments and material in reply.
As both parties were self-represented the hearing was conducted in the form of a determinative conference.
There is no dispute that Mr Moore is protected from unfair dismissal pursuant to s.382 of the Act.
The first issue to determine is whether Mr Moore was dismissed within the meaning of s.386 of the Act. Newspot contend that Mr Moore resigned. Mr Moore contends that he was forced to resign as a result of the conduct of his employer. If Mr Moore is found to have resigned, the application must fail. If Mr Moore was dismissed, then the requirements of s.387 of the Act must be met by Newspot.
At the commencement of the hearing Newspot asked that I dismiss the matter pursuant to s.399A of the Act as a result of the late submission of material. Whilst I accept that the directions were not strictly complied with by Mr Moore, taking into consideration the fact that he was not represented and was clearly unfamiliar with this jurisdiction and the hearing process, I declined to exercise my power to dismiss the matter.
Mr Moore submitted a statement[1], a number of exhibits[2] and gave evidence on his own behalf.
Newspot was represented by Mr Wadsworth (Dealer Principal) who submitted a statement and gave evidence on his own behalf. In addition, statements were received from Mr Malcolm Kennett (Sales Manager), Mr Sasa Prso (Sales Consultant) and Ms Patricia Karas (Mr Wadsworth’s partner and a customer of Newspot).
Mr Prso’s statement was agreed and Mr Moore did not require him to be cross-examined.
Ms Karas gave evidence in person and advised that she was not an employee of Newspot, did not supervise or give direction to Mr Moore and that she was a customer to Newspot and would communicate with Mr Moore concerning the servicing of vehicles used in her car rental business.
The key facts in this matter are largely not in dispute, and I find that the following events occurred from the statements and evidence given by the various witnesses.
Chronology
On Thursday 23 March 2017 at about 3.51pm Mr Moore received a text message from Dale Auty (who used to work for Newspot as a parts interpreter) with words to the effect of ‘Be careful, look after yourself, Darrell is broke, he has no money, he hasn’t paid Andy out yet’.
Andy Day, (Service Manager - Salisbury and Newspot Shareholder) was a former business partner of Mr Wadsworth.
Mr Moore spoke to Mr Kennett later that day and showed Mr Kennett the message and discussed the contents with him.
Mr Moore also spoke to Mr Grant Sapwell, (General Salesman - Salisbury) about the information contained in the text message.
On 24 March 2017, Mr Wadsworth became aware that Mr Moore had communicated information about him to Mr Kennett and Mr Sapwell. Mr Wadsworth believed the information was false, and was upset that Mr Moore had not contacted him first to discuss the matter before telling other employees.
Mr Wadsworth rang Mr Moore on Friday 24 March 2017. Mr Wadsworth was angry and wanted to know where the information had come from. He said to Mr Moore words to the effect of ‘My fucking problem with you is that you spread rumours.’ There is no allegation that Mr Wadsworth mentioned any disciplinary process or that Mr Moore’s employment would be in jeopardy.
After the telephone discussion, Mr Moore wrote out his resignation on a computer, thought better of it and then emailed the draft resignation to himself.[3]
Mr Andy Day rang the dealership to dispel the rumour. Mr Moore was surprised of Andy’s involvement and that the matter had become such a big thing.
Mr Moore did not work on Saturday and Sunday but was ‘stressing all weekend.’ Mr Moore took Monday off as a result.
Mr Moore returned to work on the Tuesday 28 March 2017. Mr Moore states Tuesday ‘went pretty well with myself questioning why I had been so worked up all weekend for no reason.’[4]
On Wednesday 29 March 2017, Ms Karas contacted Mr Moore in relation to the collection of a vehicle which had been serviced. At the end of the conversation Ms Karas mentioned that she was aware of the information about Mr Wadsworth communicated by Mr Moore and expressed her displeasure about the matter and put in question Mr Moore’s loyalty. This was done in a normal speaking tone. Mr Moore took umbrage at his loyalty being questioned, raised his voice, swore and told Ms Karas that he did not appreciate being spoken over and that he would get in a vehicle and come and see her in 20 minutes to have a discussion. Ms Karas felt threatened by Mr Moore’s conduct.
About 4 minutes after that conversation, Mr Moore sent a resignation letter by email to Mr Wadsworth.[5] The email is time stamped 2.03pm. Mr Kennett observed Mr Moore typing and was told by Mr Moore that he was resigning.
The resignation email is reproduced below:
“I don’t appreciate your wife having a go at me & using words such as ‘I am not loyal’. If either of you had of come to speak to me or listen rather than add 2+2 together & come up with 10 you would have found out the truth of what went down.
Hurts her family….what about the shit you listened to from Suresh & then said to me? The attitude of ‘you listen to gossip’ too much & you ‘care what people say about you too much’ didn’t apply when the situation was reversed.
Consider this my resignation. I will finish up on Wednesday 12th of April.”
After sending the email Mr Moore approached Mr Prso and Mr Brand in the showroom and told them he had just told Ms Karas to fuck off as he didn’t like the way she spoke to him on the telephone, and she would not listen to him. Mr Moore later said that he was resigning from his job and that Darrell (Wadsworth) can go and get fucked. Mr Moore said that he wasn’t taking any shit from the owner Darrell or his wife and they can go fuck themselves.
Mr Wadsworth received Mr Moore’s resignation soon after it was sent. Mr Wadsworth tried to ring Mr Moore at about 4.17pm, Mr Moore rang him back 30 minutes later and Mr Wadsworth advised him that he accepted the resignation.
Later in the day Mr Moore announced to staff present in the Eastside salesroom, including Mr Kennett, that he had resigned.
Mr Wadsworth did not hear from Mr Moore again until 3 April 2017 at 2.37pm when Mr Moore emailed him seeking to withdraw the resignation.[6] The email is reproduced below
“Afternoon Darrell,
You will find attached an email I had drafted at worked on Friday the 24th, the day it came to light that Grant had relayed a conversation, or part there of, to you that myself & Malcolm had had with him the previous day.
After reading it I sincerely hope you can imagine that emotion that was running through me when Patty questioned my loyalty to the company & yourself. Given the personal information I have divulged to you recently & the different things that have transpired during my employment, especially the last few months, I sincerely feel such a comment was uncalled for & I took the strongest possible offence to it.
What seems to have overlooked through the this whole thing is my genuine concern for my own financial security. It was alarming & caused myself great distress to think that this could be happening. Finding out Grant has resigned shortly there after only added to that anxiety.
I do apologise that I let my emotions get the better of me & I respectfully ask that given the circumstances that you allow me to withdraw my resignation & continue with my employment at Newspot.
I await your reply.
Yours Sincerely
Jason Moore.”
On 4 April 2017, Mr Wadsworth responded to Mr Moore rejecting his request.
It appears that Mr Moore was to work out his notice but did not attend work for personal reasons.[7]
Mr Moore contended that he was bullied at work and that this impacted his decision to resign. The conduct relied upon by Mr Moore was;
· A decision by the employer to demote him in May 2015 and his view that he was treated abruptly by Newspot. Mr Moore tendered a letter from Mr Wadsworth to him dated 3 May 2015 concerning the incident.[8]
· A dispute with Mr Wadsworth in September 2016 concerning the use of trade plates, and the preparation of accessories guides.
· A dispute with the Service Manager concerning the brand of battery installed in a customer’s vehicle in January 2017.
Mr Moore also provided the following medical evidence at the hearing in order to demonstrate the impact the work environment had upon him and his decision to resign:
· A letter dated 5 May 2017 to Dr Ewer from EML seeking a medical report concerning Mr Moore in respect of a workers compensation claim.[9] This report contains a history of the matter which appears to be a summary of the events advised by Mr Moore, employees of Newspot and Ms Karas.
· A copy of a Medical Report prepared by Dr Ewer dated 12 May 2017.[10] The report appears to have been prepared in response to the EML letter dated 5 May 2017. Dr Ewer found that Mr Moore presented with symptoms of depression and anxiety, and found that he was suffering from chronic adjustment disorder with depressed mood.
· A copy of a medical report dated 12 June 2017 from Dr Bell which states that Mr Moore is suffering from a medical condition which is being managed. I have ordered that this report and its contents remain confidential pursuant to s.594 of the Act.
· A copy of a medical certificate from Dr Bhagwant Singh dated 31 March 2017 which states that Mr Moore was unfit for work on 31 March 2017.[11]
· A Return to Work SA work capacity certificate from Dr Andrew Beckwith, dated 13 April 2017 which states Mr Moore was medically unfit to work from 13 April to 12 May 2017.[12]
· A Return to Work SA work capacity certificate from Dr Andrew Beckwith, dated 25 May 2017 which states Mr Moore was medically unfit to work from 11 May to 26 May 2017.[13]
None of the medical evidence was provided to Newspot prior to the cessation of employment.
Consideration
Section 386 of the Act provides as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on the employer's initiative; or
(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.”
In Sovereign House Security Services Ltd v Savage[14] Justice May said:
“….generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned.”
In the matter of Kwik-Fit (GB) Ltd v Lineham[15] Justice Wood said:
“Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as ‘special circumstances’. Where “special circumstances” arise it may be unreasonable for an employer to assume a resignation and accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether such resignation was really intended and can properly be assumed, then such inquiry is ignored at the employers risk.”
When the chronology is considered in light of the statute and case law described above, it is clear to me that Mr Moore’s conduct in emailing the resignation to Mr Wadsworth, separately announcing his resignation to Mr Prso and Mr Brand, and making the staff announcement witnessed by Mr Kennett amount to three consistent and unambiguous announcements that he was terminating his contract of employment.
The conduct which gave rise to Mr Moore’s initial contemplation of resignation occurred 5 days prior, no prospect of disciplinary action was raised with him, and by Tuesday 28 March 2017 Mr Moore (on his own evidence) had recovered from any stress that arose from his interaction with Mr Wadsworth.
With respect to the conversation with Ms Karas on the day of the resignation, it was Mr Moore that was the aggressor and no pressure to resign was placed upon him by Ms Karas. Additionally, Ms Karas was not his employer nor does it appear that she had any authority to act on Newspot’s behalf.
It appears to me that Mr Moore made his decision to resign independently and not as a result of any conduct of Newspot or its employees. The decision to resign was confirmed on two subsequent occasions.
On 31 March 2017, Mr Moore sent a text message to Mr Brand which suggests the reason for him resigning was his loyalty being called into question.[16]
Mr Moore contends that he was bullied at Newspot and this impacted upon him and influenced his decision to resign. There is little direct evidence to support this submission. It appears that Mr Moore had a number of disagreements with Newspot in relation to the performance of work and work behaviours.
In May 2015, Mr Moore was demoted. The other work place performance issues took place at least two months prior to the day Mr Moore resigned. It is clear that Mr Moore did not accept the criticism of his performance at the time and this position continues. I accept that the terms used to describe the issues with Mr Moore’s performance were robust and I can see from the correspondence and evidence of Mr Moore that he pursued his concerns in a similar robust manner. I do not accept that the performance concerns or the manner in which they were discussed was such that they forced Mr Moore to resign.
I note that the medical evidence submitted was obtained post dismissal and Newspot would not have been aware of its content at the time the resignation was received. Therefore, Newspot could not have considered this information in determining if ‘special circumstances existed’.
Based on the material before me, I do not see that any ‘special circumstances’ existed such that Newspot should have exercised caution before accepting the resignation.
The fact that Mr Moore took a further 5 days before seeking to withdraw his resignation, weighs against Mr Moore.
I find that Mr Moore was not dismissed at the employers’ initiative and that his resignation was not forced because of conduct, or a course of conduct, engaged in by Newspot. Mr Moore’s application will be dismissed. An Order[17] reflecting this decision will be issued.
COMMISSIONER
Appearances:
Mr J.Moore the Applicant.
Mr D.Wadsworth on behalf of the Respondent.
Hearing (Conference) details:
2017.
Adelaide:
June 20 and 21.
[1] Exhibit A1
[2] Exhibits A2-A14
[3] Exhibit R3
[4] Exhibit A2
[5] Exhibit R2
[6] Exhibit R2
[7] Exhibit A4 series of text messages
[8] Exhibit A4
[9] Exhibit A5
[10] Exhibit A6
[11] Exhibit A8
[12] Exhibit A8
[13] Exhibit A8
[14] [1989] IRLR 115
[15] [1992] ICR 183
[16] Exhibit A4 Text Message - 31 March 2017 1.25pm
[17]PR594029
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