[2015] FWC 6519

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, 24 SEPTEMBER 2015

Termination of employment – jurisdictional issue - whether applicant resigned or was dismissed.

[1] Jaymon (Jay) Hocking (the applicant) contends that he was dismissed by Tackle World Adelaide Metro (the employer or the respondent) on 20 April 2015. The employer contends that the applicant resigned on this date.

[2] The Fair Work Act 2009 (the Act) establishes the eligibility of a person to make an unfair dismissal application and the requirements that must be met in order for the application to succeed. These requirements are discussed below.

[3] The Act provides that a person has been unfairly dismissed if the following four requirements are met:

The person was dismissed;

The dismissal was harsh, unjust or unreasonable;

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

The dismissal was not a case of genuine redundancy. 1

[4] The meaning of “dismissed” is relevantly set out in s.386(1) of the Act, which states 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.”

[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.

[6] The applicant is a person who is protected from unfair dismissal, having completed the minimum employment period 2 and being covered by a modern award, being the General Retail Industry Award 2010 (MA000004) (“the Retail award”). The minimum employment period in this case is 12 months as the employer is a small business, having less than 15 employees as at the date the applicant’s employment ceased.

[7] The matter proceeded by way of a determinative conference. 3 The applicant was self-represented and the respondent was represented by a lay advocate, Mr Geoff Hill. The applicant gave evidence. The respondent called the following witnesses:

Tom Treloar, Owner

James (Jamie) Rymell, Store Manager

Nathan Peckham, Sales Assistant

Joshua Shepherdson, Sales Assistant

Andrew Treloar, Sales Manager

[8] The oral and documentary evidence is referred to in the narrative that follows.

[9] The applicant commenced his employment with the respondent as a casual sales assistant in February 2012. He became a full time permanent sales assistant on 27 May 2013. During the course of his employment he was entrusted with additional responsibilities – he opened and closed the business, was given the keys to the safe and had seniority over the casual sales assistants. The applicant enjoyed his work, enjoyed working with the other sales assistants and got on well with the owner and the Store Manager. The evidence indicates that the working relationships were relaxed and cordial. The applicant stated that from time to time he had differences with Mr Treloar but that the applicant took this in his stride and that things returned to normal soon enough 4 which apparently included socialising outside working hours.

[10] The applicant is divorced, and has access to his three children every second weekend.

The rosters to March 2015

[11] It is agreed that Mr Treloar prepared the rosters. He said that he drafted the rosters then consulted with the applicant and Mr Rymell before releasing the roster to the casual sales assistants. It was his evidence that the applicant’s shifts varied between roster periods but this is not supported by the evidence of the applicant or Mr Rymell and no rosters were provided in support of Mr Treloar’s position. 5

[12] I find that, in the period leading up to 9 March 2015 the applicant worked a set roster of Wednesday to Saturday inclusive. I understand that the applicant’s ex-wife took care of the children while the applicant was working on the Saturday of his access weekend.

[13] Mr Rymell said he would have some input into the roster by way of discussion with Mr Treloar about the number of casuals required for particular shifts. The applicant stated that he was not consulted about his roster because his shifts were constant. I accept this evidence.

The new roster

[14] In late February 2015, Mr Rymell showed the applicant a draft roster for the period 2 March to 3 May 2015 (“the new roster”). The first week of the roster (2 March 2015 to 8 March 2015) reflected the applicant’s standard Wednesday to Saturday shifts. In the next eight weeks of the roster the applicant was rostered to work six Sundays. 6

[15] The change in roster was to enable Mr Rymell to work Saturdays where more staff were on duty, because he was more senior to the applicant and the business was not as productive as it could be on Saturdays.

[16] The applicant had an SMS exchange with Mr Treloar on 25 February 2015 which included the following:

“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 before work if you like ..

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

[17] That evening the applicant had an SMS exchange with Mr Rymell in which he stated that he had spoken to Mr Treloar and asked to discuss the rosters over a coffee before work and that “I just need to see my kids … they come first”.

[18] At some stage in the week before Easter, 7 there was a conversation between Mr Treloar and the applicant in the car park of the business. The rosters were raised but nothing was finalised. In the course of the conversation Mr Treloar again reassured the applicant telling him that he was “a very valuable employee”.8

[19] The applicant stated that he spoke to Mr Treloar about the rosters on other occasions but there is no evidence as to the dates and content of these discussions. It is agreed however that the applicant commenced working on the new roster and that his efforts to discuss the roster with Mr Treloar continued after the Easter weekend. On Tuesday 7 April 2015 the following SMS exchange took place:

“The applicant: Hey Thomas ... just wondering if it’s possible to come in this arvo and have a chat about the roster…

Mr Treloar: 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.”

The conversation on 20 April and surrounding circumstances

[20] Mr Treloar was away on business for the remainder of that week and the following week. He returned to work on Monday 20 April 2015. The applicant stated that he approached Mr Treloar in his office at approximately 9.15 am and that the following conversation took place: 9

“Applicant: Can I discuss the roster with you, I have been trying to do this for some time now?

Mr Treloar: It is not open for discussion.

Applicant: That is not fair, all I want is 2 Sundays off a month.

Mr Treloar: I need you on the Sundays.

Applicant: If it was good enough for Nathan and Keith to watch the shop on a Sunday while you were away on a charter they should be good enough to do this only twice a month so I can see my kids.

Mr Treloar: My hands are tied.

Applicant: Shit, Tom, my boy Rhys is in the process of being diagnosed with a form of Autism and I really need to spend a little time with him and my 2 Daughters, this isn’t fair on them.

Mr Treloar: Jay I could give you an odd Saturday off.

Applicant: No please give me only 2 Sundays a month.

Mr Treloar: No.

…

Applicant: Tom I don’t want to give you 2 weeks’ notice.

Mr Terloar:(sic) Oh you’re pulling a Cos on me. 10

Applicant: No my situation is different - I don’t want to give you 2 weeks’ notice.

Mr Treloar: Give me back the keys. I’m very disappointed in you.

Applicant: I’m disappointed in you and this is bullshit.

Mr Treloar: Go!”

[21] Mr Treloar’s version of the conversation is as follows: 11

“Jay: Tom, I have to change my current roster arrangements.

Tom: How so, Jay?

Jay: Due to my current personal situation, I have to change my roster regarding Sunday employment.

Tom: What do you propose?

Jay: I’m not prepared to work Sunday’s any more, and if I can’t have this changed I’m going to have to resign.

Tom: That’s not possible for me to do without consultation with other staff members and try to re arrange rosters.... You know that Jay.

Jay: Well, Tom I have the offer of two other jobs and if you won’t agree to this now I’m giving notice of my resignation now.... so take two weeks’ notice.

Tom: Jay, your ultimatum is not able to be met because I have to negotiate with the Team to see how I can accommodate your demand... I need time and their consideration to do this.

Jay: Well I need an answer now, otherwise here’s my two weeks’ notice! I have my other jobs ready to go.

Tom: You know the situation here with the Team, Jay, I’m not able to give you this assurance on the spot. If this is not acceptable to you - I have no choice but to accept your two weeks’ notice and resignation. And Jay, because of your unreasonable demand and the unhappy situation it has created, it is best that you left now and I will still give you your two weeks’ pay plus all your entitlements.

Tom: I must say Jay, I’m knocked over by this.... We’ve had such a good relationship and I have always paid you above award, and we have enjoyed working and fishing together. I’m very disappointed... Are you sure you don’t want to think more about this?

Jay: No.”

[22] The applicant was cross-examined on his version of the conversation and whether he raised the spectre of a resignation because that was his only option if Mr Treloar refused to give him the two Sundays per month off work. As I understand the applicant’s evidence, he raised resignation to underscore the seriousness with which he viewed the situation and his commitment to spending time with his children. However he stated that he had no intention of resigning because he was looking to obtain a loan to purchase a house and that if he was going to resign over the roster he would not have worked the Sundays prior to the conversation. He disputes that he told Mr Treloar that he had jobs to go to or that he had other employment opportunities.

[23] Before dealing further with the conversation on 20 April, it is convenient to refer to comments made by the applicant to his co-workers in the week or so leading up to this date as well as after the conversation with Mr Treloar.

[24] The evidence of Mr Rymell, Mr Peckham and Mr Shepherdson was that the applicant had discussed his grievances about the roster with them and said that he would resign if it could not be changed. According to these witnesses the applicant also stated that he had jobs lined up and that he referred to a position at Bunnings and/or at the Submarine Corporation. The applicant denied this and stated that he often joked with his colleagues about “turning sausages at Bunnings”.

[25] The evidence of Mr Rymell, who was not at work on 20 April, was that he rang the applicant later that day to ask what had happened at the meeting. The applicant relayed the conversation with Mr Treloar, saying that he had told him that if he didn’t change the roster immediately he would resign, and that his resignation had been accepted. Mr Shepherdson said that the applicant approached him after the meeting and said words to the effect that he had quit because he had to put his family first.

Did the applicant resign?

[26] In my view, Mr Treloar’s recollection of the final conversation is unreliable in some respects. I do not accept that he would have enquired, at the start of the conversation as to why the applicant wanted to change the rosters. He was well aware that the applicant had been trying to have a conversation with him about the rosters for some time and that he was concerned about spending time with his children.

[27] The evidence of the applicant and Mr Shepherdson is that the exchange on 20 April became heated and the reasoned dialogue that Mr Treloar attributes to himself, as set out in his version of the conversation, is unlikely. It is apparent that Mr Treloar was aware of the conversations that had been occurring in the workplace during his absence in the previous two weeks when he said that the applicant had created an “unhappy situation” and that he “didn’t want negativity around the workplace …”. 12 It is reasonable to conclude that this knowledge influenced Mr Treloar’s attitude to the applicant on 20 April.

[28] I also consider that aspects of the applicant’s evidence are unreliable. His evidence that conversations with his co-workers in the period leading up to 20 April were all in jest 13 is inconsistent with his level of concern about the roster as evidenced in his text messages, his evidence to the Commission and his version of the conversation with Mr Treloar.

[29] It was the applicant who raised the spectre of resigning and it was put as the only option available to him, albeit an unpalatable one, if Mr Treloar refused to change the roster. The applicant’s case is that he did not say the words “I resign”, but such clear language is not always necessary. All relevant circumstances need to be taken into account.

[30] I consider that on the applicant’s version of events, his statement that “I don’t want to give two weeks’ notice” amounted to a threat to resign in the event that Mr Treloar did not change the roster. Mr Treloar called his bluff.

[31] The applicant’s conduct and statements before, during and after the exchange on 20 April 2015 support a finding that he effectively tendered his resignation giving two weeks’ notice. He was not required to work out the notice period and was paid the value of two weeks’ wages for this period.

Was the resignation forced by the employer’s conduct?

[32] In some circumstances a resignation can be deemed to be a dismissal, as s.386(1)(b) of the Act, set out earlier, makes clear. An obvious example is where an employee tenders a resignation under the threat of dismissal if they don’t do so. Clearly this is a termination at the initiative of the employer because it is not a resignation freely given and it is the conduct of the employer that has resulted in the employment coming to an end. Cases are rarely this clear cut however. A useful discussion on this issue is contained in the decision of O’Meara v Stanley Works Pty Ltd 14 where a Full Bench of the Australian Industrial Relations Commission considered a number of cases on this point. The Bench then summarised the position as follows:

“[23] In our view the full statement of reasons in [decisions cited]… require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether ‘the act of the employer [resulted] directly or consequentially in the termination of the employment.’ … In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

The provisions of the Retail Award

[33] A matter relevant to a consideration of the employer’s conduct in this case is compliance with certain provisions in the Retail award including the following:

“8. Consultation

8.1 Consultation regarding major workplace change

….

8.2 Consultation about changes to rosters or hours of work

(a) Where an employer proposes to change an employee’s regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.

(b) The employer must:

(i) provide to the employee or employees affected and their representatives, if any, information about the proposed change (for example, information about the nature of the change to the employee’s regular roster or ordinary hours of work and when that change is proposed to commence);

(ii) invite the employee or employees affected and their representatives, if any, to give their views about the impact of the proposed change (including any impact in relation to their family or caring responsibilities); and

(iii) give consideration to any views about the impact of the proposed change that are given by the employee or employees concerned and/or their representatives.

(c) The requirement to consult under this clause does not apply where an employee has irregular, sporadic or unpredictable working hours.

(d) These provisions are to be read in conjunction with other award provisions concerning the scheduling of work and notice requirements.”

[34] Mr Treloar did not comply with the obligations under clause 8.2 of the Award. I do not regard his text exchanges and conversations with the applicant as sufficient to satisfy the requirement to give consideration to the applicant’s position. The impact of the roster change on the applicant’s ability to spend time with his children is precisely the sort of matter contemplated by sub-clause 8.2, and is exactly what is meant by “family and caring responsibilities”. Mr Treloar was in no doubt that this was the basis of the applicant’s concern.

[35] In addition, sub-clause 28.9 of the Retail award provides that the roster period cannot exceed 4 weeks. The employer did not comply with this requirement. The impact of this on the applicant was that the roster that created the difficulties for him extended beyond the period legally allowed under the Retail award and compounded his situation. Also relevant is Mr Treloar’s evidence that he could not change the roster ‘mid-stream’ but was willing to review the situation in the next roster.

[36] Compliance with the Retail award is not necessarily the only matter relevant to a consideration of the employer’s conduct in this matter, but is dealt with here because the parties were given an opportunity to put submissions on this issue. However, as the matter of a forced resignation was not addressed by the parties at the hearing, a further opportunity will be provided. Directions in relation to this matter are attached to this decision.

DEPUTY PRESIDENT

Appearances:

Mr J Hocking in person

Mr G Hill for the respondent with Mr T Treloar

Hearing details:

2015:

Adelaide,

7, 17 August.

1 Section 385 of the Act.

2 Sections 382 and 383 of the Act.

3 In accordance with s.398 of the Act.

4 At PN148.

5 Mr Rymell at PN660-1; Mr Peckham at PN689; Mr Treloar was invited to provide previous rosters at PN558.

6 22 March; 29 March; 5 April; 19 April; 26 April and 3 May 2015.

7 At PN580. Easter Friday was 3 April 2015.

8 At PN529.

9 Set out in the applicant’s Form F2 Unfair Dismissal Application.

10 I understand this to be a reference to a previous employee who resigned.

11 Ex R1 at para 13.

12 PN488.

13 PN129-148.

14 Print PR973462, 11 August 2006. This decision and others on this topic are linked into the Unfair Dismissals Benchbook available at the Commission website on by authority of the Commonwealth Government Printer

Jaymon Hocking v Tackle World Adelaide Metro