Jim Bril v Rex Australia Limited t/a K and K Glass

[2015] FWC 884

[2015] FWC 884

FAIR WORK COMMISSION

DECISION

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

Jim Bril
v
Rex Australia Limited t/a K & K Glass
(U2014/10520)

VICE PRESIDENT HATCHER SYDNEY, 16 FEBRUARY 2015

Application for relief from unfair dismissal.

Introduction

[1] Mr Jim Bril has applied under s.394 of the Fair Work Act 2009 (Act) for an unfair dismissal remedy in relation to his former employment with Rex Australia Limited trading as K & K Glass (K & K Glass). That employment ended on 11 June 2014. The circumstances in which it ended are in dispute. Mr Bril contends that he was dismissed. K & K Glass contends that Mr Bril resigned. The resolution of that dispute is necessary at the outset since, under s.394(1), only a “person who has been dismissed” may apply to the Commission for an unfair dismissal remedy.

[2] It was not otherwise in dispute and I find, for the purposes of s.396 of the Act, that:

(a) Mr Bril lodged his application within the period required by s.394(2) (assuming there was a dismissal);

(b) Mr Bril was a person protected from unfair dismissal;

(c) K & K Glass was not a “small business employer” as defined in s.23 of the Act, so that the Small Business Fair Dismissal Code was inapplicable; and

(d) the termination of Mr Bril’s employment was not a case of genuine redundancy.

Was Mr Bril dismissed?

[3] What constitutes a dismissal for the purposes of Part 3-2 of the Act is defined in s.386(1) 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.

[4] Section 386(1) is subject to a number of exceptions identified in s.386(2) which are not relevant to this case. The dispute here concerning whether Mr Bril was dismissed from his employment with K & K Glass on 11 June 2014 arises from a factual contest as to what occurred during discussions between Mr Bril and Mr Dean McParland, the General Manager of K & K Glass, and Mr Jesse Trimarchi, the Dispatch Manager of K & K Glass, on the morning of 11 June 2014. In summary, Mr Bril gave evidence that Mr McParland told him that he had to “Resign or get the sack”, and that he consequently signed a resignation letter which had been prepared by Mr Trimarchi. Mr McParland and Mr Trimarchi denied this, and gave evidence that Mr Bril voluntarily resigned in order to take up more remunerative employment with another employer, Tamar Australia Enterprises Pty Limited (Tamar).

[5] There was no serious dispute before me that, if Mr Bril’s version of events was accepted, then he was a person who had been dismissed under the definition in s.386(1). It was likewise not seriously in dispute that if the version of events of Mr McParland and Mr Trimarchi was accepted, there was no dismissal under s.386(1). It is not possible to reconcile the evidence given by Mr Bril with that of Mr McParland and Mr Trimarchi. To put it bluntly, somebody was lying. The identification of whose version of events is to be believed therefore effectively resolves the question of whether Mr Bril was dismissed.

The witnesses

[6] On the question of whether there was a dismissal, relevant evidence was adduced by Mr Bril at the determinative conference conducted in this matter on 5 November 2014 as follows:

• Mr Bril made a statement of evidence dated 16 September 2014 and a further statement of evidence in reply dated 3 October 2014, and was cross-examined on those statements.

• Mr Vladimir Rupchev, the Director of Tamar, made a statement of evidence dated 12 September 2014. He was not required by K & K Glass to attend the hearing for the purposes of cross-examination.

• Mr Terry Kesby, an Organiser with the Construction, Forestry, Mining and Energy Union (CFMEU), made a statement of evidence dated 12 September 2014. He was not required for cross-examination.

• Mr Paul McCulloch, gave evidence (by telephone) pursuant to an order made under s.590(2)(a) of the Act and rule 53 of the Fair Work Commission Rules 2013.

[7] In relation to Mr Bril’s evidence, it is necessary to observe at the outset that he is not fully literate, in that he can barely read and has difficulty in writing. His statements were prepared with the assistance of his union, the CFMEU, in a slow process which took several meetings. Before he signed the statements, the relevant CFMEU officer read them to him very slowly to ensure that he understood them.

[8] For K & K Glass, Mr McParland and Mr Trimarchi made statements of evidence (both dated 11 September 2014) and were cross-examined on those statements. K & K Glass also adduced evidence from Mr Bradley Shaw and Mr Stuart Wareing, who made short statements of evidence but were not required for cross-examination.

Factual background

[9] Some analysis of the background to the events of 11 June 2014 is necessary in order to resolve the factual contest.

[10] K & K Glass is a glass manufacturing business. Mr Bril was engaged by K & K Glass as a truck delivery driver from 17 March 2008. His working hours were from 5.00am to 2.30/3.30pm Monday to Friday. The usual practice was that he would commence work at K & K Glass’s “Factory 1” at Holbeche Road in Arndell Park and obtain his day’s run sheet from his allocated work tray in the dispatch office. The run sheet would identify the deliveries which he was required to make during the course of the day.

[11] Mr Bril was at all relevant times a member of the CFMEU, as were a number of other employees at K & K Glass. He had sought advice in the past about his employment rights from Mr Terry Kesby, his CFMEU Organiser, and was Mr Kesby’s main point of contact with the CFMEU’s members at K & K Glass.

[12] In the course of performing his duties as a delivery driver for K & K Glass, Mr Bril was frequently required to make deliveries of glass to Tamar. Tamar is a business which supplies and installs aluminium windows and doors. Over the course of time Mr Bril became friendly with Mr Rupchev, the Director of Tamar. At some stage, presumably in 2014, Mr Rupchev asked Mr Bril whether he knew any good employees looking for a job, since Tamar wanted to employ a driver. According to Mr Rupchev’s statement, Mr Bril replied that he did not, but that he would look around.

[13] Sometime afterwards, Mr Bril decided that he wanted to take a period of annual leave over the period Monday 2 June 2014 until Tuesday 10 June 2014 inclusive (noting that Monday 9 June 2014 was the Queen’s Birthday public holiday). His evidence was that he had a conversation with Mr McParland about this on or about 26 May 2014, in which he sought permission to take this leave. When Mr McParland complained that “Usually you need to give us 2 weeks’ notice”, Mr Bril said: “I need to take annual leave to register my car, because my son had been transferred from Clyde to Milperra and his hours are different and I need a car and the car is out of rego”. Mr Bril’s evidence was that Mr McParland then granted him permission to take the leave. Mr McParland’s version of this conversation was longer and more detailed. On his evidence, he checked with Mr Trimarchi that Mr Bril’s absence would not leave him “short a driver”, and only granted permission to Mr Bril to take the leave after Mr Trimarchi assured him that “we’ll be fine, there’s not much on at the moment”. As to the essential points however, there is no substantial difference between the versions of Mr Bril and Mr McParland. It is clear, and I find, that Mr Bril asked for permission to take annual leave for the purpose of registering his car, and Mr McParland gave that permission.

[14] It is equally clear that during the period of annual leave, Mr Bril ended up working as a truck driver for Tamar. The circumstances in which this occurred are slightly curious. Mr Bril’s evidence was that on 29 May 2014 (after he had received permission to take the annual leave), Mr Rupchev contacted him and offered him a full-time position as a truck driver, and that he refused his offer because the hours did not suit his family responsibilities. Mr Bril said that Mr Rupchev contacted him again on 1 June 2014, and said “I know you are on holidays, but are you able to drive for a couple of days to get me out of trouble?” Mr Bril accepted the offer, he said, because he was in financial hardship at the time, he did not have the money to pay his electricity bill, he had taken out a personal loan with Cash Converters, and he needed to pay the loan back.

[15] Mr Rupchev’s evidence was broadly consistent with that of Mr Bril. He said in his statement that (without identifying a date) he called Mr Bril to see whether he had any leads on a driver he might be able to employ. Mr Rupchev said that during their conversation Mr Bril volunteered that he was on leave for a week, in response to which he asked if could “freelance” as a driver for Tamar for a week.

[16] Mr McCulloch’s evidence was that after Mr Bril had obtained permission to take his annual leave, he had a conversation with Mr Bril in which Mr Bril told him that he was going to trial a job with Tamar to see if the conditions that he wanted were going to be granted to him, and that Mr Bril asked him to spread it around the factory so that he could try and get a pay rise out of K & K Glass. Mr Shaw’s evidence in his statement is corroborative of this, in that he said that Mr McCulloch had repeated to him a conversation of this nature with Mr Bril at about the time Mr Bril took annual leave. When this matter was raised with Mr Bril, he said at least that he agreed with a suggestion made by Mr McCulloch that he (Mr McCulloch) should spread a rumour that Mr Bril was leaving to work for Tamar Windows in order to induce K & K Glass to give the drivers a pay rise.

[17] I wholly accept the evidence of Mr McCulloch. Notwithstanding that he was called to give evidence by Mr Bril and that he remained in employment with K & K Glass in a position with some supervisory responsibilities, he gave evidence which in important respects was adverse to both sides in this matter. He gave his evidence viva voce and without equivocation. On this particular matter, his evidence was corroborated by that of Mr Shaw. On that basis, I find that although Mr Bril originally applied for annual leave for the purpose of registering his car, once he was offered work during his leave period with Tamar, he accepted it not just for reasons of financial necessity but also because, firstly, he wanted to trial working with Tamar, and secondly he wanted K & K Glass to find out about it indirectly in the hope that K & K Glass might pay him more to keep him.

[18] Mr Bril worked for Tamar on a casual basis from Monday 2 June 2014 until Thursday 5 June 2015 inclusive. Mr Bril says that on the afternoon of 2 June 2014, Mr McParland appeared at the Tamar workshop in Smithfield and saw him loading a truck there. Mr McParland approached him, and asked him what he was doing there. Mr Bril’s evidence was that a conversation to the following effect occurred:

“On the afternoon of 2 June 2014, while I was working for Tamar, Dean McParland suddenly appeared at Tamar’s workshop located at 2/10 Hume Street, Smithfield. We had a conversation in words to the following effect:

Dean McParland: “Jimmy, what are you doing?”

Jim Bril: “I’m just giving them a hand, they rang me up saying they need a Driver. I was sitting around at home doing nothing.”

Dean McParland: “I thought you were on holidays”

Jim Bril: “Yeah, I needed the extra cash. I have a $900 electricity bill. I don’t think it’s a problem.”

Dean McParland: “Somebody told me you’re working here to try it out.

Jim Bril: “No, I was offered a job on Thursday and I turned it down. I don’t see anything wrong with it. I’m trying to get them out of trouble for a couple of deals. Look boss, I’m not going anywhere and I’ll see you back on Wednesday. I’m sorry if this looks bad but I’m on holidays and helping someone out.”

[19] Mr McParland confirmed that he had attended Tamar’s premises in the course of performing his duties, and had seen Mr Bril working there, although he thought this occurred on Wednesday 4 June 2014. In evidence which I consider to be revealing, he said in his witness statement in reply to Mr Bril’s statement that after seeing Mr Bril loading a truck for Tamar, “I sat in my car for a few minutes watching as I couldn’t believe that the applicant applied for leave to register his car yet was working for a customer”. Mr McParland said that he then approached Mr Bril and had a conversation with him. His version of that conversation is set out in his statement. It is again somewhat longer and more detailed than Mr Bril’s version, but with one exception it is the same as to essential matters as Mr Bril’s version. The exception is that Mr McParland’s version did not contain any reference to him having previously been told that Mr Bril was working at Tamar to try it out. Mr McParland did say however that upon making inquiries about it when he returned to K & K Glass, it turned out that “everybody else seems to have known about it except for me”. I do not consider it necessary to determine whether the “rumour” which Mr Bril had authorised Mr McCulloch to spread reached Mr McParland’s ears before or after he saw Mr Bril working at Tamar.

[20] Mr McParland said in his statement in reply to Mr Bril’s statement that after he finished his conversation with Mr Bril, he got in his car and “left without going to see the customer as my mind was now elsewhere”. This, together with the way Mr McParland himself described his initial reaction upon seeing Mr Bril working at Tamar, demonstrates that Mr McParland was significantly disturbed upon seeing Mr Bril working at Tamar. This was raised with Mr McParland in cross-examination, and the following exchanges occurred:

“Was he honest with you?---I don’t believe he was honest with me about applying for the annual leave to register his car.

Okay. You were angry then because he wasn’t honest with you?---No, no. I wasn’t angry with Jimbo at all. I’ve never been angry with Jimbo.

You were disappointed with him?---I was disappointed that he told me he was going to, he needed the week off to register his car and then I saw him working at a customer, yes. I was disappointed, I wasn’t angry.

THE VICE PRESIDENT: Why were you disappointed?---I thought Jimbo, you know, would have come to see me about it. I mean, he’s stated he only did it because he needed extra money. Now, the company, and they have done in the past, have helped employees with extra money to do things they needed to do. It has been done previously. I’m not sure whether it’s been done for Jim but it has been done for others and it continues to be done.

Why would it disappoint you that he decided, in effect, to source the money himself by doing other work? Why does that disappointing to you?---Because I believe that Jim and I had a fairly good relationship. We talked about most things. I was disappointed that I went there and saw him working for a customer and I come back to work and everybody else seems to have known about it except for me and that’s what disappointed me is I thought Jimbo would have come and spoke to me about it. I didn’t have any concerns and it wouldn’t have been a concern for me to go and work, for Jimbo to take a week’s leave to go and work at Tamar Windows if that’s what he needed to do.” 1

[21] In his statement of evidence in reply to Mr Bril’s statement, Mr McParland said he opposed the reinstatement of Mr Bril (although Mr Bril did not seek this) because “I do not believe the applicant could return to K & K Glass as he has shown dishonesty towards the company who once had respect for this employee”. This allegation of dishonesty was raised with Mr McParland in cross-examination, and he gave evidence as follows:

“MS RAJU: Thank you. “I agree. I do not believe the applicant could return to K & K Glass as he has shown dishonesty towards the company who once had respect for this employee”. Would you agree you’ve used quite harsh words there?---Yes, I do.

Dishonesty and not having respect for the employee. Why would you use the word dishonesty there?---Because in my eyes Mr Bril was dishonest. He told me he was taking leave to register his car not to go and work for a customer. For me, that’s being dishonest.

THE VICE PRESIDENT: And you’ve lost trust in him as a result?---Yes, I have. A certain level of trust. I wouldn’t say total trust because prior to this I have had no issues whatsoever with Mr Bril. There is a certain level of trust that I’ve lost because he tells me one thing and does something else. It was only through chance that I discovered he was working somewhere else.” 2

[22] I consider that it is quite apparent from Mr McParland’s evidence that not only was he “disappointed” at seeing Mr Bril working for Tamar, but he regarded it as a personal betrayal. The logical basis for this is somewhat unclear. Mr McParland’s evidence was that his concern was not about the fact that he saw Mr Bril working for Tamar, a customer of K & K Glass, but that he considered that Mr Bril had lied to him in stating his reason for taking annual leave. Whether this is true or not, Mr McParland clearly had a strong personal reaction to the discovery that Mr Bril was working for Tamar.

[23] Mr Bril gave evidence that on Tuesday 10 June 2014 - his last day of annual leave - he had rung Mr McCulloch and left a telephone message asking for confirmation that he was still starting at 5.00am the following morning. He said that he never received a return call from Mr McCulloch, but that Mr Trimarchi sent him a text message telling him to come in at 6.00am. However, when Mr McCulloch was asked about whether Mr Bril had contacted him prior to returning from annual leave, Mr McCulloch said that Mr Bril had rung him to say that he had no intention of leaving K & K Glass and that he was staying at K & K Glass. I do not regard the evidence of Mr Bril and Mr McCulloch as contradictory, but rather as referring to two separate events. I accept Mr McCulloch’s evidence, which strongly indicates that Mr Bril had no intention of resigning from his employment at K & K Glass. I also accept Mr Bril’s evidence that he sought confirmation about his starting time.

[24] Mr Trimarchi said that he thought he had told Mr Bril on Tuesday 10 June 2014 to come into work at 6.00am by telephone. However he said he did this because “I didn’t have anything for him to do in the morning so yes, I did tell him to come at six”. He said that no-one instructed him to do this, but he did it of his own initiative. He specifically denied that Mr McParland had instructed him to say this, and further denied that Mr McParland had told him that he wanted to speak to Mr Bril when he came in the following morning. Mr McParland however told a different story. He said that he directed Mr Trimarchi not to allocate any run to Mr Bril when he came into work the next day because he wanted to have a discussion with Mr Bril about why he had been working at Tamar.

[25] Mr McCulloch said that he thought it was himself who had rung up Mr Bril and told him not to start until 6.00am, and that he did so on Mr Trimarchi’s direction. Mr McCulloch had asked Mr Trimarchi at the time why there was no run set out for Mr Bril, and he said Mr Trimarchi’s reply was that “he had something organised for him or he had something else for him”.

[26] On this issue, I do not accept Mr Trimarchi’s evidence. Although there is doubt as to whether Mr Bril was informed to start at 6.00am the following morning directly by Mr Trimarchi or indirectly by Mr McCulloch on Mr Trimarchi’s instruction, I consider that it is clear in the light of subsequent events dealt with later that the reason for this was that Mr McParland wanted to speak to Mr Bril about the Tamar incident, and for that purpose had directed Mr Trimarchi not to allocate Mr Bril any work.

[27] Mr Bril attended for work at 6.00am on 11 June 2014 in accordance with Mr Trimarchi’s direction. He was surprised upon arrival to find that, contrary to normal practice, there were no run sheets in his tray. Mr Bril said in his statement that he was told by Mr McCulloch that there was no run for him today, and that his truck had been allocated to another driver. Mr McCulloch observed to him that “It’s strange that you don’t have a run”, and suggested he call Mr Trimarchi to “see if the boys need a hand”. Mr Bril said that he then rang Mr Trimarchi (who was not yet at work) on his mobile phone a number of times to find out why he had not been allocated any work, but his calls were not answered and he left a message. Mr Bril’s evidence was that at approximately 7.30am he received a telephone call from Mr Trimarchi, who directed him to attend a meeting with himself and Mr McParland. Mr Bril attended the meeting, and said that Mr McParland immediately challenged him about working for Tamar. On Mr Bril’s account, a conversation to the following effect occurred:

“McParland: Well, the directors have found out about your thing with Tamar.

Bril: What about it?

McParland: The directors are not happy. It's a conflict of interest.

Bril: What conflict of interest?

McParland: Well, you are working for a customer.

Bril: How is that a conflict of interest?

McParland: You have two choices.

Bril: What's that?

McParland: Resign or get the sack.

Bril: Is that with all my entitlements?

McParland: Yes, whatever is owing to you.

Bril: The company still owes me 3 days that I have worked. You still haven't fixed me up.

McParland: You think about it.

Bril: Hang on; it doesn 't have to go to that extreme. I was expecting a written warning if anything. I was just trying to help a customer out.

McParland: You think about what you want to do, be sacked or resign.

Bril: Let me have a cigarette and think about it. If I resign, I'll have to work for Tamar as I need money.”

[28] Mr Bril’s evidence was that he then went outside to have a cigarette, and as he did so he was then approached by Mr Trimarchi, who said to him that “It’s gotten around that you wanted to work at Tamar and you went to try them out and were then going to resign”. Mr Bril said that after explaining to Mr Trimarchi that he did not accept the job which Tamar had offered him, he told him:

“I don’t want to get the sack as it doesn’t look good. I might have to work for Tamar as I need money. I have no choice but to resign”.

[29] Mr Bril then said he went back in together with Mr Trimarchi to Mr McParland’s office and said “You have left me with no choice but to resign”, to which Mr McParland said “Well it’s your choice”. Mr McParland indicated that Mr Bril would receive all his entitlements and a written reference. Mr Bril said he subsequently observed Mr Trimarchi walk over to his computer, print out a document, go to the printing room and collect it. Having done so, Mr Trimarchi read out the document to Mr Bril and told him to sign it. Mr Bril said “This didn’t have to go this way, I just expected if anything a written warning. I need to find a job”. He then signed the document. It was a resignation letter which read:

“ATT: Jesse 11/6/2014

I’m writing to let you know that I have decided to resign from K & K Glass to pursue other career goals. This was a tough decision to make as I have really enjoyed working here.

Thanks for all you have done for me, I appreciate your support.”

[30] Mr Bril said that he was in a state of shock when he signed the letter and worried about his future. He also said that he was not given the opportunity to call Mr Kesby and seek his advice. He returned the mobile phone which K & K Glass had issued him with, collected his belongings, said goodbye to some of his work colleagues, and left the site.

[31] A number of matters support Mr Bril’s version of events that he did not voluntarily resign. The first is that he had no alternative employment to go to. Mr Rupchev said in his statement that in the week after Mr Bril had worked for Tamar (that is, the same week that Mr Bril was dismissed), Tamar had in fact employed a driver in the position it had been looking to fill for some time. This driver was engaged for about a week but turned out to be unreliable and was dismissed. It was only then that Mr Rupchev rang Mr Bril to inquire if he was available to fill the position. Mr Bril, who had been suffering financial hardship because of unemployment, and had only found one day’s alternative work, accepted the offer and commenced employment with Tamar on 23 June 2014 (as demonstrated by Tamar’s pay records). The notion therefore that he voluntarily resigned “to pursue other career goals” is nonsense.

[32] Secondly, Mr McCulloch gave evidence about the events of 11 June 2014 which corroborated Mr Bril’s account. He said that he first saw Mr Bril at about 6.10am, when Mr Bril approached him to ask why he had not been allocated any work. Mr McCulloch said he rang Mr Trimarchi about this, and that Mr Trimarchi told him to tell Mr Bril to help the other drivers, and that Mr Trimarchi would speak to him when he got in. Mr McCulloch also said that Mr Bril was “still adamant that he didn’t want to go anywhere”. Mr McCulloch said that at about 7.00am he went over to the “tarp fitting plant” for about an hour, and that when he returned he saw Mr Bril walking out of the office. They then had a short conversation in which Mr Bril said he was leaving and that “he was forced into a corner and he had to sign a resignation letter”. No reason is apparent as to why Mr Bril would have said this to Mr McCulloch if he had in fact voluntarily resigned, and none was suggested. The veracity of Mr McCulloch’s evidence was not challenged, and I accept it.

[33] Thirdly, Mr Kesby’s evidence was that Mr Bril had rung him on 12 June 2014 (the following day) and complained about what had occurred, saying:

“McParland said because I was working for another company when I was on annual leave, it was a conflict of interest. The directors wanted me to resign or they were going to sack me for a conflict of interest. I was forced to sign a resignation letter. I didn’t have a choice.”

[34] No logical explanation as to why Mr Bril would make a complaint of that nature to Mr Kesby if he had voluntarily resigned the day before is apparent, and none was suggested.

[35] Mr McParland version of events in his statement of evidence in reply to Mr Bril’s statement was that at about 7.30am Mr Bril came to his office together with Mr Trimarchi and asked to have a discussion. He said that Mr Bril said to him “I’m sorry boss but I’ve decided to resign”, and handed him a resignation letter. When Mr McParland asked him whether he was resigning because he had been seen working for Tamar, Mr Bril said “No boss, I was offered more money to work for them”. Mr McParland’s evidence was that he unsuccessfully tried to dissuade Mr Bril from leaving, and that then Mr Bril asked him for a reference. Mr McParland said in reply: “Sure Jimbo, but why would you need one if you’ve already got a job?” to which Mr Bril replied: “Just in case boss, you never know”. He was not aware of Mr Bril going outside to have a cigarette or having a separate conversation with Mr Trimarchi.

[36] It must immediately be observed that, if Mr McParland’s account is to be accepted, Mr Bril was giving an explanation for his purported resignation which was simply not true. He had not accepted the offer of a job with Tamar. Even when he eventually went to work for Tamar as earlier described, he was not paid at a higher rate of pay. I can think of no reason why Mr Bril would have said this, and none was suggested by K & K Glass.

[37] Mr McParland’s account of events in his oral evidence contained some additional details not in his statement. He said that his conversation with Mr Bril had begun with him asking why he had asked for annual leave to register his car when in actual fact he was going to work for a customer, to which Mr Bril said it was a trial and that Tamar had been short of drivers. He said it was only at that point that Mr Bril handed over his resignation letter. He denied that he had had any prior discussion with the directors of the business (who are Chinese) about the fact that he had seen Mr Bril working for Tamar, but that he did tell one of them subsequently about this and Mr Bril’s (purported) resignation. Interestingly, he described the director’s response in the following way:

“She said why would he go and work for a customer. That’s not being honest with us. That’s just how the Chinese are ...”.

[38] Mr Trimarchi gave a brief account of the events of 11 June 2014 in his statement of evidence as follows:

“On 11th June 2014 Jim came into my office around 7.30am and informed me that he was resigning from his job as a truck driver with K & K Glass. I asked Jim why he wanted to resign and he told me that Tamar had offered him full time employment and a better pay rate.

I told Jim that I would need his resignation in writing. Jim then asked me to type the letter of resignation on my computer as he was not able to do it at home.

I typed the letter word for word while Jim was sitting next to me telling me what to write. I then printed the letter. Jim signed it and then we both went to see Dean McParland in his office.”

[39] It may again be noted that on this version of events, Mr Bril for no logical reason gave Mr Trimarchi a reason for his resignation that simply was not true, namely that Tamar had offered him a job on a better pay rate.

[40] During the course of cross-examination, Mr Trimarchi’s version of events underwent some radical changes. He confirmed that Mr Bril had rung him while he was driving to work “maybe once or twice”, but that he did not take the calls because he had no “hands free” device in his car. He also confirmed that he had subsequently had a conversation with Mr McCulloch about why Mr Bril had not been allocated any work, and said he told Mr McCulloch that he did not have any work for him, and that Mr Bril should help the other drivers until he came in and could sort something out. This evidence was of course inconsistent with Mr McParland’s evidence that he directed Mr Trimarchi not to allocate work to Mr Bril in order that they could have a conversation about him being seen working for Tamar. Mr Trimarchi said he had no knowledge of any such intention on Mr McParland’s part prior to coming into work.

[41] Mr Trimarchi said that he arrived at work at about 7.15am and went to his desk. He said that Mr McParland came into work at about 8.00am and told him that he wanted to have a conversation with Mr Bril, but did not explain why. He said he then approached Mr Bril and told him that Mr McParland wanted to speak to him. However, when this was tested, he said Mr Bril had already told him by this point that he was resigning. It may immediately be noted that this evidence is significantly inconsistent with Mr Trimarchi’s statement of evidence.

[42] Mr Trimarchi then gave evidence that when he told Mr Bril that Mr McParland wanted to see him, Mr Bril went to Mr McParland’s office. He said that he did not join them in Mr McParland’s office until a later stage. When he was pressed on this in cross-examination however, he reverted to the version that was in his statement, namely that Mr Bril had come into Mr Trimarchi’s office, told him he was resigning, at which time they typed up the resignation letter and then went to see Mr McParland in his office. At this point the following exchange occurred between myself and Mr Trimarchi:

“What I might do is I might take an early luncheon adjournment and resume at 1.30 and we will resume your evidence then. While you’re having lunch, Mr Trimarchi, you’re not to speak to anyone about your evidence but can I also invite you over the luncheon break to think very carefully about your evidence?

---Yes, I will, yes.” 3

[43] When the proceedings resumed after lunch, Mr Trimarchi (while still in cross-examination) agreed that he had thought over his evidence at lunch, and then attempted again to describe the events of 11 June 2014. He said that shortly after his arrival at work at 7.15am, Mr Bril had come to see him and told him that he wanted to resign for the reason that he had “found work somewhere else with better pay”. Mr Trimarchi initially said that Mr Bril did not tell him where he had found work, but when it was pointed out to him that he had said in his statement that Mr Bril hadtold him that Tamar had offered him employment, he then said that Mr Bril did say that the employment was at Tamar. Mr Trimarchi insisted that in typing the resignation letter, he had only written what Mr Bril had dictated to him.

[44] Mr Trimarchi then said that he told Mr Bril to go and see Mr McParland while he printed the resignation letter. He said Mr Bril went into Mr McParland’s office, he printed the letter, and then he joined them in Mr McParland’s office. Mr Trimarchi said that the resignation letter was not signed at this point, and Mr Bril signed it while in Mr McParland’s office. It may be noted at this point that Mr Trimarchi’s evidence contradicted his witness statement, in which he said that the resignation letter had been printed and signed before he and Mr Bril went together to Mr McParland’s office. When he was pressed on this, Mr Trimarchi changed his evidence. He said it was not correct that the letter was unsigned when he brought it into Mr McParland’s office, and attributed his incorrect evidence in this respect to him being nervous and unable to think properly. He then said that after typing the letter, he had given it to Mr Bril to sign, Mr Bril had signed it, he had taken it back, Mr Bril had gone into see Mr McParland, and he had come in a little later with the letter.

[45] Mr Trimarchi then confirmed that he had told Mr Bril that Mr McParland wanted to speak to him about him being seen working for Tamar, and said he thought that this occurred while he was typing up the resignation letter. He said that when he joined Mr McParland and Mr Bril in Mr McParland’s office, he heard Mr McParland saying how disappointed he was with Mr Bril in relation to him working for Tamar. He said that he then gave the resignation letter to Mr Bril, who gave it to Mr McParland.

[46] It should be obvious by this point that Mr Trimarchi’s oral evidence was marred by significant inconsistencies with his statement of evidence, internal inconsistencies, and inconsistencies with the evidence of Mr McParland. He gave every indication both in the content of his evidence and the manner in which he gave it of being an untruthful witness.

[47] One feature of the evidence of Mr McParland and Mr Trimarchi that was consistent was that the letter of resignation was typed out, printed, and handed to Mr McParland at about 7.30am. After they had given their evidence on 5 November 2014, I issued an order on 6 November 2014 requiring K & K Glass to produce to the Commission, among other things, all documents and records evidencing or referring to the time and date the letter of resignation dated 11 June 2014 and signed by Mr Bril was created. In response thereto, K & K Glass on 10 November 2014 produced a printed copy of a record from its computer system which showed that the resignation letter had been created at 9.05am on 11 June 2014. I gave the parties an opportunity, ultimately until 5 December 2014, to file further submissions concerning this additional material. Mr Bril filed an additional submission, but K & K Glass did not.

[48] The creation of the resignation letter at 9.05am is completely inconsistent with Mr McParland’s and Mr Trimarchi’s evidence. Because their evidence was that the letter was created before Mr Bril purportedly told Mr McParland that he was resigning at around 7.30am, that evidence cannot be correct. The time of 9.05am is broadly consistent and reconcilable with Mr Bril’s evidence, in that Mr Bril says he was telephoned at 7.30am by Mr Trimarchi to see Mr McParland and Mr Trimarchi, he then subsequently had a meeting with them which has earlier been described, he then had a cigarette break, then a further conversation with Mr McParland, and it was only after all these events that the letter was produced. That could conceivably take the timeline up until 9.05am. Mr Bril did not give evidence that he saw the letter being typed after these events, only that it was printed, but that must represent either a failure of recollection or something that for whatever reason he did not observe.

[49] It may further be added that I do not accept that the resignation letter was something that Mr Bril dictated. As earlier stated, Mr Bril has significant problems with literacy. He can barely read and has difficulties in writing. Mr Kesby, who has had dealings with Mr Bril over some years, said in relation to the resignation letter:

“I have seen the alleged letter of resignation signed by Jim Bril. There is no way that Jim Bril wrote that letter or dictated it to somebody. The words used in the letter do not reflect the way Jim Bril talks and some of the language used in the letter is beyond Jim Bril’s vocabulary.”

[50] With knowledge of Mr Bril’s lack of literacy, and having heard and seen him give evidence, I consider that Mr Kesby’s conclusion is correct. Mr Trimarchi’s evidence that he typed out what Mr Bril told him is rejected.

[51] I consider that the evidence given by Mr McParland and Mr Trimarchi to the effect that Mr Bril voluntarily resigned on 11 June 2014 was false. Mr Bril’s evidence that he was forced to resign is supported by the evidence of Mr Rupchev, Mr McCulloch and Mr Kesby. Mr Bril’s account is also consistent with two facts that are incontrovertible on the evidence: firstly, that Mr McParland was deeply troubled by seeing Mr Bril working for Tamar during his annual leave, and secondly that Mr Bril, who was in financial difficulty, had no alternative job to go to when he purportedly resigned. Mr McParland and Mr Trimarchi were unable to give a consistent account between themselves as to what happened, and their accounts did not accord with the independently ascertainable facts and were inherently improbable. I find that they fabricated their evidence that Mr Bril voluntarily resigned in order to take up a job with Tamar.

[52] In summary, I conclude that the relevant facts were as follows:

(1) Mr McParland observed Mr Bril working for Tamar, and was significantly troubled by it.

(2) A decision was made to terminate Mr Bril’s employment. Whether this decision was made by Mr McParland alone or in consultation with the directors of K & K Glass is not clear. I lean towards the latter scenario, but it is not necessary to reach any final conclusion about this.

(3) Mr McParland determined to meet with Mr Bril when he returned to work on 11 June 2014 for the purpose of terminating his employment. He directed Mr Trimarchi on 10 June 2014 not to allocate Mr Bril any work the next day and to direct him to attend for work at 6.00am and then see Mr McParland when he came in for this purpose.

(4) When Mr Bril met with Mr McParland and Mr Trimarchi on 11 June 2014, a conversation to the effect of that described by Mr Bril in his evidence occurred. In short, by reason of the fact that he had been seen working for Tamar, Mr Bril was given the choice of resigning or being dismissed.

(5) Mr Bril, understandably, felt in those circumstances that he had no choice but to resign.

(6) Mr Trimarchi subsequently prepared the resignation letter on his computer. The words are Mr Trimarchi’s. Mr Bril then signed it.

[53] On the basis of those findings, I conclude that Mr Bril was dismissed within the meaning of s.386(1). I consider that both limbs of the definition in s.386(1) are satisfied: the termination occurred at the initiative of the employer, and the resignation was one that was forced by the employer’s conduct.

Whether Mr Bril’s dismissal was unfair

[54] Having found that Mr Bril was dismissed, it remains necessary to determine whether that dismissal was harsh, unjust or unreasonable. However, this is one of those cases where the determination of the preliminary question as to whether there was a dismissal makes almost inevitable a finding that the dismissal was unfair. K & K Glass’s case did not run beyond the denial that Mr Bril had been dismissed; it had no substantial defence to the proposition that if there was a dismissal, it was an unfair one.

[55] In determining whether Mr Bril’s dismissal was harsh, unjust or unreasonable, it is necessary for me to consider the matters specified in paragraphs (a) to (h) of s.387 of the Act. I will deal with each of these matters in turn below.

Paragraph 387(a)

[56] K & K Glass did not attempt to submit that there was any valid reason for Mr Bril’s dismissal relating to his capacity or conduct. At the termination meeting on 11 June 2014, Mr McParland said that Mr Bril’s casual work for Tamar, which was a customer of K & K Glass, constituted a conflict of interest. However at the determinative conference Mr McParland, who both appeared for K & K Glass and gave evidence, denied that there was any conflict of interest. There was no evidence that the work Mr Bril did for Tamar was work that might otherwise have been done by K & K Glass. Undertaking secondary employment which does not encroach on the primary employer’s field of business does not contravene the implied contractual term of fidelity and good faith. 4 Nor does the implied term impose any duty upon the employee to disclose secondary employment of this nature.5 Mr Bril, in applying to access his statutory accrued annual leave entitlements, was under no requirement to disclose the reason, or the true reason, why he was taking annual leave or the activities he intended to undertake while on annual leave.

[57] I find that was there was no valid reason for Mr Bril’s dismissal based on his capacity or conduct.

Paragraphs 387(b) and (c)

[58] There being no valid reason (or alleged valid reason) for the dismissal relating to Mr Bril’s capacity or conduct, the issues of notification of the reason and the provision of an opportunity to respond are not relevant.

Paragraph 387(d)

[59] Insofar as there were discussions relating to the dismissal on 11 June 2014, Mr Bril was not provided with any opportunity to have a support person present. This was significant in this case, in that there was no independent person there to act as a witness to the attempt by Mr McParland and Mr Trimarchi to fabricate a voluntary resignation on the part of Mr Bril.

Paragraph 387(e)

[60] The dismissal did not relate to any unsatisfactory performance by Mr Bril. K & K Glass acknowledged that Mr Bril was a good employee.

Paragraphs 387(f) and (g)

[61] The “procedures” adopted in dismissing Mr Bril were entirely illegitimate. It is no doubt the case that if K & K Glass was a larger business with dedicated human resource management specialists and expertise, appropriate advice would have been given against a dismissal being effected in the fashion that it was or at all.

Paragraph 387(h)

[62] The true reason for Mr Bril’s dismissal remains obscure because of K & K Glass’s dishonest denial that there was a dismissal. As best as can be discerned, it appears that the real reason was that because Mr Bril was observed working for Tamar while on annual leave, his earlier request for annual leave on the basis that he needed to register his car was dishonest. However, even if Mr Bril had a duty of honesty in this respect (which I doubt), he was not dishonest because the offer and acceptance of casual work at Tamar occurred after he had already obtained approval to take his annual leave. No reasonable basis for his dismissal is therefore identifiable. Moreover, because the real reason for the dismissal was never disclosed to Mr Bril prior to the dismissal being effected and Mr Bril was never given the opportunity to respond, he was denied procedural fairness.

[63] Mr Bril was otherwise acknowledged to be a good and loyal employee. He had worked for K & K Glass for over six years. His employment record was unblemished. The dismissal was without any notice. The dismissal caused him financial loss. These I consider to be relevant matters which support the conclusion that Mr Bril’s dismissal was unfair.

Conclusion

[64] I find that Mr Bril’s dismissal was harsh, unjust and unreasonable. There was no valid reason or legitimate basis for the dismissal. Mr Bril was denied procedural fairness. The basis upon which the dismissal was effected was a fabrication. He was a good, long-serving employee who was dismissed without notice and suffered financial loss as a result.

Remedy

Reinstatement

[65] Mr Bril did not seek the remedy of reinstatement because he was “treated unfairly and poorly and feels that he cannot return to work with the respondent”. He now has full-time employment with Tamar. K & K Glass agreed that the remedy of reinstatement should not be granted. I am satisfied for the purpose of s.390(3)(a) that an order for reinstatement would be inappropriate. Given the manner in which the dismissal was carried out and K & K Glass’s dishonesty about that dismissal in these proceedings, I do not consider that Mr Bril’s trust and confidence in K & K Glass could be sufficiently restored to permit the re-establishment of a practicable working relationship.

Compensation

[66] I consider, given that Mr Bril has suffered financial loss as a result of his unfair dismissal, that it is appropriate in all the circumstances of his case that he be awarded compensation. It is necessary therefore for me to assess the amount of compensation that should be ordered to be paid to Mr Bril. In assessing compensation, I am required by s.392(2) of the Act to take into account all the circumstances of the case including the specific matters identified in paragraphs (a)-(g) of the subsection. In undertaking this task, I shall use the long-established methodology for assessing compensation in unfair dismissal cases which was most recently elaborated upon in the context of the current Act in Bowden v Ottrey Homes Cobram and District Retirement Villages 6.

[67] K & K Glass made no submission concerning the assessment of compensation at the determinative conference even when invited to do so beyond saying: “The company will, whatever the commission or you decide your honour, obviously we would have to pay that”. After the completion of the determinative conference on 5 November 2014, I issued orders for the production by K & K Glass and Tamar of Mr Bril’s pay records in order to aid the proper assessment of compensation. I then allowed the parties until 5 December 2014 to file any further written submissions they wished to make in relation to this additional material. Mr Bril filed a written submission which included a detailed analysis as to the assessment of compensation. K & K Glass made no further submissions. On 5 February 2015 I allowed K & K Glass a final opportunity to file submissions on the issue of assessment of compensation. On 9 February 2015 K & K Glass submitted that if it were to lose the case compensation “should be no more than 4 weeks as Mr Bril did work for Tamar immediately after he left”.

Remuneration that would have been received (s.392(2)(c))

[68] I estimate that had Mr Bril not been dismissed he would have continued to work for K & K Glass for at least a year. Based on the pay records produced by K & K Glass, at the time of his dismissal Mr Bril’s average earnings with K & K Glass were $1,004 per week (rounding to the nearest dollar and excluding annual leave). There is no reason to suggest that Mr Bril’s earnings would have been any less if he had continued to work at K & K Glass. Therefore the remuneration that Mr Bril would have earned if he had not been dismissed is $52,208 (52 x $1,004).

Remuneration earned (s.392(2)(e)) and income reasonably likely to be earned (s.392(2)(f))

[69] After his dismissal but before being employed by Tamar, Mr Bril worked for one day at Brevelite Glass and earned $176. Mr Bril’s earnings records which were produced by Tamar show that Mr Bril has earned $15,360 from when he started there on 23 June 2014 until 6 November 2014. Therefore Mr Bril has earned $15,536 ($15,360 + $176) from his dismissal to 6 November 2014.

[70] Approximately 14 weeks will have elapsed between 6 November 2014 and the date of the order for compensation I intend to make, and under the intended order a further two weeks will elapse before the compensation is payable, making a total of 16 weeks. Mr Bril’s average weekly earnings with Tamar up until 6 November 2014 were $768. There is no reason to think that Mr Bril would not have continued to earn that amount over the subsequent 16 week period. Therefore I assess that he would have earned $12,288 (16 x $768) over this period.

[71] Deducting these amounts from $52,208 leaves $24,384 ($52,208 - ($15,536 + $12,288)).

Other matters (s.392(2)(g))

[72] There is no reason to think that Mr Bril will not continue to be employed by Tamar for the rest of the 12 month period that I have assessed he would have remained at K & K Glass but for his dismissal. That involves, approximately, a further 15 weeks from the date compensation will be payable under the order I intend to make to the anniversary of the dismissal on 11 June 2015. Assuming the same average weekly earnings, Mr Bril will earn $11,520 (15 x $768). Deducting that amount leaves $12,864 ($24,384 - 11,520).

[73] I do not consider that there should be any further deductions for “contingencies” in circumstances where I have assumed continuing employment with Tamar into the future. I have considered the impact of taxation, but I prefer to determine compensation as a gross amount and leave taxation for determination.

[74] I have considered the question of long service leave. Section 4(2)(a)(iii) of the Long Service Leave Act 1955 (NSW) provides that employees with at least five years’ service but less than ten years’ service may be entitled to long service leave as follows:

(2) (a) Subject to paragraph (a2) and subsection (13) the amount of long service leave to which a worker shall be so entitled shall:

...

(iii) in the case of a worker who has completed with an employer at least five years service, and whose services are terminated by the employer for any reason other than the worker’s serious and wilful misconduct, or by the worker on account of illness, incapacity or domestic or other pressing necessity, or by reason of the death of the worker, be a proportionate amount on the basis of 2 months for 10 years service.

[75] Mr Bril was not paid his accrued long service leave by K & K Glass on the basis that he resigned. However, I am of the opinion, based on my earlier findings, that Mr Bril’s services were terminated by K & K Glass for reasons other than his serious and wilful misconduct, and that accordingly K & K Glass is liable to pay him accrued long service leave based on over six years’ service. I considered whether the non-payment of Mr Bril’s long service leave was a loss arising from his unfair dismissal capable of being taken into account in the assessment of compensation under s.392(2)(g). However, I have concluded that this should not be done because that would amount to the Commission doing indirectly what it cannot do directly, namely enforcing statutory employment entitlements. For that reason I have not taken long service leave into account in my assessment of compensation. It will therefore be necessary for Mr Bril to take separate court action to enforce his long service leave entitlement unless K & K Glass takes the sensible step of paying that entitlement to Mr Bril voluntarily in the light of the finding I have made that it dismissed Mr Bril from his employment.

Viabilility (s.392(2)(a))

[76] There was no evidence or submission that any particular amount of compensation would affect the viability of K & K Glass. No adjustment will be made on this account.

Length of service (s.392(2)(b))

[77] I consider that Mr Bril’s length of service (over six years) does not justify any increase or reduction to the amount of compensation otherwise payable.

Mitigation efforts (s.392(2)(d))

[78] I am satisfied that Mr Bril has made appropriate efforts to mitigate the loss he suffered because of the dismissal. No reduction on this score is therefore required.

Misconduct (s.392(3))

[79] Mr Bril did not commit any misconduct, so this has no relevance to the assessment of compensation.

Compensation cap (s.392(5))

[80] I calculate the compensation cap in this case to be $26,104 ($52,208/2). The amount of $12,864 is below the compensation cap.

Instalments (s.393)

[81] There was no submission that any compensation amount should be payable by instalments, and I do not consider that payments by instalments is warranted.

Assessment of compensation amount

[82] I assess the appropriate amount of compensation to be $12,864.00

Conclusion

[83] I will order that K & K Glass pay Mr Bril the amount of $12,864.00, less any taxation amounts required to be deducted by law, as compensation for his harsh, unjust and unreasonable dismissal. The amount shall be payable within 14 days of the date of this decision. A separate order to this effect will be issued at the same time as this decision.

VICE PRESIDENT

Appearances:

R. Raju with T. Kesby for the applicant.

D. McParland for the respondent.

Hearing details:

2014.

Sydney:

5 November.

 1   Transcript, 5 November 2014, PN475-479

 2   Transcript, 5 November 2014, PN546-548

 3   Transcript, 5 November 2014, PN743

 4   See Neil and Chin, The Modern Contract of Employment, at [6.130] pp.128-131

 5   Ibid

 6   [2013] FWCFB 431

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