Jaymon Hocking v Tackle World Adelaide Metro

[2015] FWC 8070

[2015] FWC 8070

The attached document replaces the document previously issued with the code [2015] FWC 6519 on 26 November 2015.

Amending document reference only.

Andrew Dickin

Associate to Deputy President Bartel

Dated 26 November 2015

[2015] FWC 8070

FAIR WORK COMMISSION

DECISION

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

Jaymon Hocking
v
Tackle World Adelaide Metro
(U2015/7437)

DEPUTY PRESIDENT BARTEL ADELAIDE, 26 NOVEMBER 2015

Termination of employment – whether applicant resigned or was dismissed – remedy.

[1] On 24 September 2015 I issued a decision on an application by Jaymon Hocking (the applicant) contending that he was unfairly dismissed by Tackle World Adelaide Metro (the respondent or the employer). I will refer to this decision as “the initial decision”. 1

[2] There was a fundamental dispute between the parties as to whether the applicant resigned his employment or was dismissed. The initial decision set out the basis on which this matter proceeded, as follows:

“[5] In this case the applicant relies on the meaning of “dismissed” as used in everyday language, that is, that the employer sent him away from the workplace and that he was not to return. The employer contends that the applicant tendered his resignation, which was accepted. The dispute centres on a conversation between the applicant and the owner of the respondent business, Mr Thomas (Tom) Treloar on 20 April 2015 in relation to roster arrangements. At the conclusion of this conversation the applicant was no longer an employee of the respondent and that much is agreed. The parties approached the matter as one limited to resolving the factual dispute as to what transpired in the conversation to bring this situation about.”

[3] I concluded that the applicant’s conduct and statements before, during and after the exchange on 20 April 2015 supported a finding that the applicant effectively tendered his resignation giving two weeks’ notice. He was not required to work out the notice period and was paid wages in lieu thereof. 2 I determined that the reason that the applicant tendered his resignation was that the roster did not allow him to spend every second Sunday with his children, as per the shared parenting arrangements agreed with his ex-wife and which had been in place for some time. His roster had not been an issue until a new roster was introduced, commencing 2 March 2015.

[4] I also held that the employer had not complied with the consultative provisions in clause 8.2 of the General Retail Industry Award 2010 (the Retail Award) being the modern award that applied to the applicant’s employment, and that the roster period exceeded the maximum four week period provided in clause 28.9 of the Retail Award. 3

[5] The parties were invited to provide written submissions on whether s.386(1)(b) of the Fair Work Act 2009 (the Act) had any application in this case. Section 386(1) provides:

“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.

…”

The employer’s submissions

[6] A summary of the salient points of the respondent’s submissions 4 is as follows:

• In order for the Commission to reach a conclusion that a resignation was forced, the employee must have had no real choice but to resign. 5



• The applicant resigned as a result of his dissatisfaction with the roster. The respondent had advised the applicant that the roster could be reviewed but that other staff needed to be consulted. The applicant chose not to wait for this to occur but decided to resign because his concerns with the roster were not addressed immediately.



• The respondent had no opportunity to address the applicant’s concerns. The applicant could have but did not utilise the dispute settling provision of the Retail Award in relation to his concerns.



• The respondent did not intend that the employment relationship be terminated. There was no threat, pressure, inducement or ultimatum to force a resignation. The respondent offered the applicant the opportunity to reconsider his resignation but the applicant chose not to.



• The line between forced resignation and employee voluntarily resigning is one which must be considered very carefully. The applicant has not shown that the respondent’s conduct is a factor in his decision to resign.

The applicant’s submissions 6

[7] As the applicant was self-represented in the initial proceedings, he was directed to the relevant information on the Fair Work Commission website. The following is a summary of the main points of his submissions:

• He made many attempts to discuss the roster with the respondent in advance of the meeting on 20 April 2015, but through no fault of his own, no discussions took place.



• He was not consulted about the new rosters as required by the Retail Award. Had the respondent complied with the consultation requirements, the applicant’s issue of access to his children every second Sunday could have been considered in advance of the introduction of the new roster.



• The respondent should not have treated the applicant as having resigned his employment because he resigned “in the heat of the moment” in the course of the conversation on 20 April 2015.



• The duration of the roster exceeded that allowed under the Retail Award. Had the correct roster period been in place the applicant’s issue could have been resolved earlier.



• The respondent inhibited his chances of obtaining employment post-dismissal.

Submissions in reply 7

[8] The respondent asserts that the applicant and other employees were strongly in favour of nine week rosters so that they could make longer term arrangements in relation to recreational activities and personal obligations.

[9] The applicant did not resign in the “heat of the moment”. To the contrary, he had telegraphed his intentions to his co-workers in the days leading up to the 20 April 2015 discussion with Mr Treloar. The respondent submitted that employee requests to change rosters to “fit employee needs and requirements” had previously been accommodated.

[10] Some of the respondent’s submissions in reply have not been taken into account because they are contrary to the findings made in the initial decision. For example, the respondent submitted that the applicant first raised his concerns seven weeks into the nine week roster period and that the concern he identified was in relation to fulfilling a football coaching position he held. The findings from the initial decision, set out later, do not support this submission.

[11] The applicant submitted that he was unaware of the requirement under the Retail Award that the roster period not exceed four weeks. Prior to the last roster, the length of the roster period was not an issue because he had a consistent pattern of hours and his family responsibilities were accommodated.

Consideration

[12] It is well settled that a decision on whether there has been a termination at the initiative of the employer depends upon the facts and circumstances of the particular case. In Victorian Association for the Teaching of English Inc v de Laps (VATE) 8, a Full Commission considered a range of decisions concerning “forced resignation”, “constructive dismissal” and “termination at the initiative of the employer”. Without traversing all of these decisions, I consider that the following approach taken from ABB Engineering Construction Pty Limited v Doumit (ABB Engineering)9 is particularly useful in the present case.

• 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.



• 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.



• It is important that that this distinction be 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.   



• The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of the reason for the resignation must be tested.



• Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.   

[13] In Pawel v Advanced Precast Pty Ltd, a Full Bench of the Australian Industrial Relations Commission expressed the approach to be taken as follows: “… all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee.” 10

[14] The issue in the present case is whether the employer engaged in a course of conduct that left the applicant with no effective or real choice but to resign. I accept the respondent’s submission that the applicant’s resignation was not proffered “in the heat of the moment”, although it appears that the meeting on 20 April 2015 did become somewhat heated. Nonetheless, the option of resigning his employment was a matter that had occupied the applicant’s thoughts in advance of the fateful meeting, as evidenced by his comments to co-workers in the preceding week.

[15] The following findings from the initial decision set the context for the consideration that follows:

• There were no concerns about the applicant’s performance or conduct. During the course of his employment the respondent entrusted the applicant with additional responsibilities and he was the senior employee on duty on some days. For the most part, the relationship between the applicant and Mr Treloar was cordial and included some out of hours socialising; at [9].



• Prior to the introduction of the new roster, the applicant’s pattern of working days was stable and involved work on Wednesday to Saturday. The applicant had access to his three children every second weekend, one of whom had recently been diagnosed as suffering from autism. His ex-wife took care of his children on the Saturday of his access weekend while the applicant was at work; at [10], [12].



• The new roster covered the period 2 March 2015 to 3 May 2015. In the first two weeks of the roster the applicant worked his previous Wednesday to Saturday shifts. In the following seven week period, he was rostered to work on three consecutive weekends, followed by a Sunday off, followed by a further three consecutive weekends; Ex A1.



• The reason for the change in the roster was enable the Store Manager, who previously worked every Sunday, to work on Saturdays. This was the busiest day with the most staff on duty, but sales were below expectations. The rostering of the Store Manager was an attempt to improve turnover; at [15].



• An SMS exchange between the applicant and Mr Treloar took place on 25 February 2015, before the new roster commenced. It indicates that Mr Treloar was aware of the applicant’s concerns before this exchange:

“The applicant: Are you in tomorrow

Mr Treloar: Please don’t stress mate. We’ll work it out. You will see your kids. Don’t think anymore of it

The applicant: It’s all good I love my job … always want to be there for it … I’m prepared to come in early have a coffee and chat about it with you and Jamie [Rymell] before work if you like ..

Mr Treloar: I know mate. It’s all good mate we’ll discuss tomorrow. You relax Jaymon.” at [16].

• The applicant also contacted the Store Manager, Mr Rymell by SMS on that day, emphasising his desire to spend time with his children and that this was a priority for him; at [17].



• In the week before Easter there was a discussion between the applicant and Mr Treloar where the rosters were raised but nothing was finalised; at [18].



• On 7 April 2015 the applicant sent a further SMS to Mr Treloar requesting to speak to him that afternoon about the rosters. Mr Treloar responded:

“Hey mate I’m leaving at midday so probably not. I can change one of the Saturdays to give you a day on the weekend off but can’t do much about the Sunday’s mate. We don’t have any options unfortunately. We’ll look again at it when I’m back but unfortunately my hands are tied.” [19]

• In the week leading up to 20 April 2015, the applicant had told his co-workers that if Mr Treloar didn’t change the rosters he would resign his employment and intimated that he had other employment options; at [24].



• Mr Treloar was not available from 7 April until 20 April 2015, and on this day the applicant spoke to him, in the course of which he reluctantly resigned his position; at [31].

[16] The consultation requirements in clause 8.2 of the Retail Award provide that when an employer proposes changes to the roster, there is an obligation to advise employees of the changes and give genuine consideration to concerns raised by employees. Clearly the rosters need to balance the operational needs of the business and the interests of employees to whom the consultation requirements apply. The obligation to consult does not mandate that an employer must modify the proposed roster to accommodate the employee’s family and caring responsibilities and an employee who is negatively impacted by the proposed roster may need to consider possible changes to their existing arrangements outside of work. However, a refusal by an employer to modify rosters to accommodate employee responsibilities outside of work, in circumstances where the operational requirements of the business could be met under such modifications, is not consistent with the spirit or intent of the clause.

[17] The failure by the employer to comply with its consultation obligations is compounded in this case by the fact that the roster period of nine weeks was more than double that allowed under clause 28.9 of the Retail Award. Had the roster period complied with clause 28.9, the opportunity for the applicant to influence any further roster period would have arisen at an earlier time.

[18] Notwithstanding the respondent’s failure to comply with the aforementioned provisions of the Retail Award, the applicant made several attempts to discuss the matter with Mr Treloar prior to the conversation on 20 April 2015. Mr Treloar was well aware of the nature of the applicant’s concerns and had previously intimated in the SMS of late February that the applicant’s concerns about seeing his children would be addressed.

[19] On 20 April 2015 the applicant repeatedly stated to Mr Treloar that, “I don’t want to resign” but at its heart this was a statement of intent to resign if the rosters were not changed immediately. The applicant was torn between the employment that he clearly enjoyed on the one hand and his family responsibilities and desire to spend time with his children on the other.

[20] It is beyond doubt that the new roster significantly interfered with the applicant’s access arrangements. In the seven week period covered by the new roster arrangements he may have had, at best, one access visit if any at all. Under the previous roster arrangements he would have had three or four access visits over the same period.

[21] It is relevant that Mr Treloar was open to review the situation in the next roster period. He also offered to give the applicant a Saturday off during the current roster period, but I am unclear whether this fell on the applicant’s access weekend.

[22] A resignation by an employee in circumstances where new or changed working requirements are incompatible with the employee’s family and caring responsibilities, has been held to be a forced resignation in previous decisions of this Commission or its predecessor. 11 While the statutory context was different, and accepting that each case turns on its own facts and circumstances, the decisions are indicative of the recognition that is accorded to employee responsibilities outside of employment.

Did the applicant have any real or effective choice other than to resign?

[23] There is no clear evidence before the Commission that the applicant could not make arrangements for his children to be looked after by his ex-wife or other family members on the Sundays of his access weekend. He had already forgone a number of access days so I do not rule out that whatever arrangements were in place over this period could not continue in the immediate future. Viewed in this way, the applicant did not have to resign immediately and could have waited for the next roster period, commencing 4 May 2015, to see if his concerns had been accommodated by Mr Treloar.

[24] Viewed another way, how many access visits did the applicant have to be miss before the situation is deemed to become so untenable that he has no real choice but to resign his employment in order to see his children? Clearly there is no arbitrary figure in answer to this question – it is a matter of fact and degree.

[25] In this case, I am satisfied that the respondent did not engage in a course of conduct with the subjective intention of forcing the applicant to resign. This is not a requirement in all cases in order to find that a resignation is a forced resignation. However where an intention to force a resignation is not a feature of a particular case then the Commission must be satisfied that the respondent engaged in a course of conduct which was of such a nature that it would probably have the effect of forcing a resignation. 12 In the present matter I consider that the following features relating to the employer’s conduct are relevant:

• The lack of consultation with the applicant in advance of the new roster and the extended roster period;

● The intimation given to the applicant on 25 February 2015 that the applicant’s concerns about access to his children would be accommodated;

• The respondent’s lack of diligence in conducting meaningful discussions with the applicant despite the attempts of the applicant to do so;

● The reversal of the respondent’s position on accommodating the applicant’s concerns, when on 7 April 2015 Mr Treloar advised the applicant that his “hands were tied” and that he was unavailable to discuss the matter with the applicant in the following weeks;

● The respondent was aware of the extent of the applicant’s concerns, such that resignation of his employment was contemplated.

[26] Also relevant is whether the applicant has some other alternative to resignation. The respondent submits that the applicant could access the dispute settling provisions of the Retail Award. Had the employer complied with its obligations to consult in advance of the roster and the applicant remained aggrieved at the outcome then this may be a reasonable expectation. Moreover, the workforce consisted of the owner, Mr Treloar, two permanent employees including the applicant and several casual store assistants. The applicant complied with the procedure to the extent that he did all he could within the workplace by raising the matter with Mr Treloar and advising the Store Manger of his position. The applicant’s concern was not about a trivial or unimportant matter. He had already suffered prejudice in relation to his access visits as a result of the respondent’s conduct, including the extended period of the roster.

[27] On the evidence before the Commission the roster was capable of modification that would enable the applicant to spend at least some time with his children on weekends and have Mr Rymell rostered on Saturdays. In my view the actions and inactions of the respondent represent a course of conduct that left the applicant with no real choice but to resign. As such I find that the applicant has been dismissed within the meaning of s.386(1)(b) of the Act.

Has the applicant been unfairly dismissed?

[28] As set out in the initial decision, the applicant is a person protected from unfair dismissal and the respondent is a small business employer.

[29] In order to find that a person has been unfairly dismissed, the Commission is required to be satisfied of four separate criteria (in this case), as set out in paragraphs (a) to (d) of s.385 of the Act:

“(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.”

[30] I have held that the applicant was dismissed and I am satisfied that his dismissal was not a case of genuine redundancy. The Small Business Fair Dismissal Code (the Code), deals with summary dismissals, other dismissals and procedural requirements. This is not a case of summary dismissal. Given the circumstances of this case there was no valid reason for dismissal, no prior warning and no opportunity to respond. I find that the dismissal was not consistent with the Code

[31] In determining whether a dismissal was harsh, unjust or unreasonable, the Commission must take into account the criteria set out in paragraphs (a) to (h) of s.387 of the Act, as follows:

“(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

[32] Again, given the circumstances of this matter, there was no valid reason and no procedural fairness afforded to the applicant. I am satisfied that the size of the respondent’s undertaking and the absence of Human Resource management specialists or expertise may have impacted on the manner in which the respondent approached the applicant’s concerns, but does not excuse the respondent’s failure to abide by the requirements of the Retail Award.

[33] There are no other matters that I consider are relevant to the dismissal.

[34] I find that the dismissal was harsh, unjust or unreasonable. It follows that the applicant has been unfairly dismissed.

Remedy

[35] The Act places primacy on the reinstatement of an employee who has been unfairly dismissed. If the Commission is satisfied that reinstatement is inappropriate and that an award of compensation is appropriate in all the circumstances of the case 13 then s.392 of the Act comes into operation. Section 392 provides that:

“392 Remedy—compensation

Compensation

(1) An order for the payment of compensation to a person must be an order that the person’s employer at the time of the dismissal pay compensation to the person in lieu of reinstatement.

Criteria for deciding amounts

(2) In determining an amount for the purposes of an order under subsection (1), the FWC must take into account all the circumstances of the case including:

(a) the effect of the order on the viability of the employer’s enterprise; and

(b) the length of the person’s service with the employer; and

(c) the remuneration that the person would have received, or would have been likely to receive, if the person had not been dismissed; and

(d) the efforts of the person (if any) to mitigate the loss suffered by the person because of the dismissal; and

(e) the amount of any remuneration earned by the person from employment or other work during the period between the dismissal and the making of the order for compensation; and

(f) the amount of any income reasonably likely to be so earned by the person during the period between the making of the order for compensation and the actual compensation; and

(g) any other matter that the FWC considers relevant.

Misconduct reduces amount

(3) If the FWC is satisfied that misconduct of a person contributed to the employer’s decision to dismiss the person, the FWC must reduce the amount it would otherwise order under subsection (1) by an appropriate amount on account of the misconduct.

Shock, distress etc. disregarded

(4) The amount ordered by the FWC to be paid to a person under subsection (1) must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person’s dismissal.

Compensation cap

(5) The amount ordered by the FWC to be paid to a person under subsection (1) must not exceed the lesser of:

(a) the amount worked out under subsection (6); and

(b) half the amount of the high income threshold immediately before the dismissal.

(6) The amount is the total of the following amounts:

(a) the total amount of remuneration:

(i) received by the person; or

(ii) to which the person was entitled;

(whichever is higher) for any period of employment with the employer during the 26 weeks immediately before the dismissal; and

(b) if the employee was on leave without pay or without full pay while so employed during any part of that period—the amount of remuneration taken to have been received by the employee for the period of leave in accordance with the regulations.”

[36] In this matter I am satisfied that reinstatement is not appropriate. Fortunately the applicant has obtained full time employment in his chosen industry and has moved on from his employment with the respondent. The relationships between the applicant and Mr Treloar and between the applicant and the Store Manager have significantly deteriorated as a result of the circumstances of the dismissal and certain conduct post-dismissal.

[37] The applicant had an employment interview with Cash Converters after his dismissal. A Store Check Reference from Cash Converters was admitted as evidence and shows that Mr Rymell was contacted and asked certain questions in relation to the applicant’s employment. It records that he gave a highly negative assessment of the applicant’s punctuality, attendance, honesty, integrity and professionalism. 14 This is despite the respondent’s view that the applicant was “a valued employee” and the absence of any evidence of performance or conduct concerns arising during the applicant’s employment.

[38] In the circumstances I consider that reinstatement is not appropriate and that an amount of compensation should be awarded.

Calculation of compensation

[39] The employer did not directly address the issue of remedy, despite that fact that this was a matter canvassed with the applicant at the hearing. As such I have no information as to the effect of any compensation order on the viability of the employer’s enterprise. I will return to this issue in due course.

[40] The evidence before the Commission is that the applicant was directed to leave the workplace after the conversation on 20 April 2015. He was subsequently paid for the two week notice period and his statutory entitlements.

[41] The applicant obtained casual roofing work for a period of five to six weeks for 15 to 20 hours per week. He received $28.50 per hour for this work. He subsequently obtained a full time position, commencing on 1 August 2015, at wages commensurate with that earned with the respondent.

[42] Taking an average of 5.5 weeks at 17.5 hours for the roofing work, the applicant earned $2,743.13. He was receiving $893.00 per week with the respondent, so the two weeks’ pay in lieu of notice equals an amount of $1,786.00 received on termination.

[43] The period of time between 20 April 2015 and 1 August 2015 is 15 weeks. Had the applicant not been dismissed I am satisfied that his employment would have continued until at least 1 August 2015. During this period he could expect to earn $13,395. Deducting the amount received from the casual roofing work and on termination from the respondent, the shortfall in wages is $8,865.87.

[44] The applicant would have accrued a week of annual leave during the 15 week period after he was dismissed and in accordance with clause 32.3 of the Retail Award the annual leave attracts a 17.5% loading. In total this equates to a further amount of $1,049.28.

[45] I am satisfied that the applicant took all reasonable efforts to obtain employment in the period post-dismissal. At the time of dismissal, he had over three years’ service with the respondent, including a two month period of casual employment on commencement. I consider that this period of service is not one which necessitates any modification of the amount of compensation otherwise determined.

[46] The applicant did not commit any misconduct that contributed to the employer’s decision to dismiss.

[47] I consider that a sum of $9,915.15 gross ($8,865.87 for lost wages plus $1,049.28 for annual leave and loading), is fair compensation for the applicant. This amount does not exceed the compensation cap.

[48] However, it is appropriate in the circumstances to give the respondent an opportunity to provide submissions on the effect of such an order on the viability of the business and to make any submissions in relation to payment by instalments. This latter issue is dealt with in s.393 of the Act, as follows:

“393 Monetary orders may be in instalments

To avoid doubt, an order by the FWC under subsection 391(3) or 392(1) may permit the employer concerned to pay the amount required in instalments specified in the order.”

[49] The respondent should file any submissions and/or documentary evidence concerning ss.392(2)(a) or 393 of the Act within 10 days of the date of this decision.

DEPUTY PRESIDENT

Written submissions:

Respondent’s submissions, 7 October 2015

Applicant’s submissions, 14 October 2015

Respondent’s submissions in reply, 23 October 2015

Applicant’s submissions in reply, 30 October 2015

 1   [2015] FWC 6519, 24 September 2015.

 2   Ibid, at [31].

 3   Ibid, at [34], [35].

 4   Respondent’s written submissions 7 October 2015.

 5   Mohazeb v Dick Smith Electronics Pty Ltd (No 2), (1995) 62 IR 200 at 206.

 6   Applicant’s submissions, filed 14 October 2015.

 7   Respondent’s submissions 23 October 2015, Applicant’s submissions 30 October 2015.

 8   [2014] FWCFB 613, 19 February 2014.

 9   Unreported AIRC (FB), Print N6999, Munro J, Duncan DP, Merriman C, 9 December 1996.

 10 Unreported, AIRC (FB), Print S5904, 12 May 2000 at [13].

 11   See for example Radman v Flight Centre Ltd, [2007] AIRC 937; Hurley v Rosemary Gallagher and Associates Pty Ltd, [2007] AIRC 184.

 12   Bruce v Fingal Glen Pty Ltd, [2013] FWCFB 5279 at [23].

 13   Section 390 of the Act.

 14   Part of Ex A1.

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