John Tisocco v Fortunato Group T/A Merri Constructions

[2011] FWA 6466

[2011] FWA 6466

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

John Tisocco
v
Fortunato Group T/A Merri Constructions
(U2011/5787)

COMMISSIONER BISSETT MELBOURNE, 21 SEPTEMBER 2011

Application for unfair dismissal remedy.

[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) by Mr John Tisocco (the Applicant) for relief from unfair dismissal.

[2] Mr Tisocco was employed by Fortunato Group t/as Merri Construction (the Respondent) on 16 November 2009. His employment ended on 3 March 2011.

[3] The Applicant says that he was dismissed from his employment, the Respondent says the Applicant resigned.

Legislation

[4] The Act states:

385 What is an unfair dismissal

A person has been unfairly dismissed if FWA is satisfied that:

(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.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

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] Given that there is a dispute as to whether the Applicant resigned or his employment was terminated the issue of whether he was dismissed must be determined first, before any consideration about whether the dismissal was unfair can take place.

[6] This is not a case where it is alleged that the Respondent took some actions that left the Applicant with little or no choice but to resign. Rather, the Applicant says that on 3 March 2011 at 3.00 p.m. he received a phone call from Mr Frank Falcone of the Respondent saying that his employment had been terminated.

The evidence and submissions

[7] Mr Tisocco gave evidence in this matter on his own behalf. Mr Nick D’Angelo and Mr Falcone gave evidence for the Respondent.

The Applicant

[8] Mr Tisocco says that he arrived at work at 6.30 or 6.40 a.m. on 3 March 2011 and sat in his ute reading the paper and having a coffee. 1 He also says he ‘attended’ for work at 6.50 a.m. The distinction between arriving and attending for work was not explored. As he walked in the gate he says he received a text message from Jason, another worker, asking if he could let the boss know he was held up in traffic and would be late. He says he approached Mr D’Angelo who asked if he was ready to start work to which he replied ‘yeah, by the way Jason’s going to be late’2 to which Mr D’Angelo said ‘I don’t give a fuck. He is your mate.’3

[9] Mr Tisocco says he felt belittled and upset by the comment and became angry. He threw his hat to the ground and said ‘I’ve had enough of this, I’m out of here’, left the site and went home. 4

[10] Later in the morning he says he rang Mr D’Angelo and said he was coming back. Mr D’Angelo told him to come at 2.30 or 2.45 p.m. When he arrived Mr Tisocco says he said to Mr D’Angelo ‘what are you doing shooting the messenger’ 5 to which Mr D’Angelo said he was sorry. It was agreed, according to Mr Tisocco, that he would take a ‘sickie’ for that day and would return to work the next morning.6

[11] In his written evidence, however, Mr Tisocco says that the day following the incident he attended for work. He tried unsuccessfully to contact the Production Manager (Andy). Later that day he says he contacted Mr D’Angelo and said he wanted to resolve the issue. He says that Mr D’Angelo asked him to come to work early the next day as he had some concerns but said ‘I will look after you and you look after me. I will fix you up for the sick day.’ 7 He says he attended work at 6.30 a.m. the next morning for a 6.50 a.m. start.

[12] Whether it was the day after or two days after he first left work because he felt belittled, Mr Tisocco says he went to work the next morning and was pulled aside by Mr Falcone who said the company wanted to let him go and that he should not have left the site. Mr Falcone told the Applicant he would ‘go and bat’ for him. 8

[13] Mr Tisocco responded that if he was sacked he would let WorkCover know of a trench collapse that had occurred a week earlier and that Mr Falcone would hear from Fair Work Australia. Mr Tisocco then took photos of a rock on site. 9 Mr Falcone rang him later in the day at about 3.00 p.m. and told him his employment had been terminated.

[14] Mr Tisocco disputes the evidence that he was yelling and ranting or was angry. 10

The Respondent

[15] Mr D’Angelo’s evidence is that on the morning of 3 March 2011 he told the Applicant off for being late for work. He does not remember swearing at the Applicant but did say to Mr Tisocco that he did not care about the text message. He said to the Applicant ‘let’s go straight to work’ 11 at which point the Applicant lost his temper12 and said he had had enough and was going home.13

[16] Mr D’Angelo’s evidence is that at about 11.00 a.m. that morning he rang Mr Falcone to advise that Mr Tisocco had left the site and not returned.

[17] Mr D’Angelo says the Applicant was defensive and still angry when he came back later in the day. Mr D’Angelo suggested to the Applicant he come back the next day and talk to Mr Falcone. 14 Mr D’Angelo again rang Mr Falcone to say Mr Tisocco would meet Mr Facone the next morning.

[18] Mr Falcone’s evidence is that Mr D’Angelo rang him mid-morning on 3 March 2011 and said that the Applicant had ‘lost it, started yelling and ranting and swearing’ when his start times were raised with him, swore and said ‘I’m out of here’. 15 Mr D’Angelo rang later (after he had seen the Applicant later in the day) and said the Applicant was still aggressive and he had suggested the Applicant see Mr Falcone the next day.16

[19] The next day Mr Falcone says he approached the Applicant who was sitting in his car at about 7.15 a.m. He says the Applicant was not dressed for work. 17

[20] He spoke to the Applicant for about 40 minutes. He told the Applicant he would look into everything that had happened and would ‘take it from there once [he had] spoken to everyone about it.’ 18 He did say to the Applicant that it was unacceptable to walk off the job, at which point Mr Tisocco started yelling at him, and said he would report the trench collapse and sexual harassment.19 Mr Falcone left but then immediately returned to see Mr Tisocco taking photographs of the work site.20

[21] Mr Falcone rang the Applicant later that day (he says at 5.00 p.m.) and said that the Fortunato Group was sorry that the Applicant had decided to go in these circumstances. 21 He says that when he said to the Applicant ‘we will let you go’ that was because the Applicant had made the decision to leave and that was accepted by the Respondent.

[22] Mr Falcone said it was not uncommon for labourers to walk off the job. 22

[23] The Respondent believes that Mr Tisocco resigned when he said ‘I’ve had enough, I’m out of here’ and voluntarily left the site. It submits that there is conflicting evidence as to whether the Applicant arrived ready to work the next day or not and I should accept the evidence of Mr Falcone in this respect.

[24] The Respondent further submits that there was no dismissal but if this is not accepted and I find that there was, there is no evidence that the dismissal was unfair.

Consideration

[25] I must either find that the Applicant, by his actions, resigned his employment and that this resignation was accepted by the Respondent or alternatively that the Applicant’s employment was terminated by Mr Falcone. On this matter I should say that the dates provided of the incident and the date Mr Tisocco says his employment was terminated appear to be confused. For the purpose of clarity in this decision I have taken that the date of the incident was 3 March 2011. This means that Mr Tisocco’s employment was terminated, if this is what occurred, on 4 March and not 3 March as claimed in his initial application.

[26] I find it very unusual, in the hurly burly of a construction site, where colourful language I suspect is not unusual, that the Applicant would feel belittled by Mr D’Angelo saying ‘I don’t give a fuck’. This is not to condone the language. There is, however, no evidence that this was put in an aggressive or threatening manner. It appears to be the most minor of a matter that has resulted in the Applicant no longer being employed by the Respondent.

[27] The Applicant’s evidence on a number of matters is inconsistent, not least of all is the conflict in his evidence as to whether he worked a day in between the initial event and the day his employment (he says) was terminated. Further inconsistency is found in his evidence as to the time he arrived for work on the day of the incident. The Applicant adopted his witness statement as true and correct but gave a different version of events in the witness box. This raises legitimate questions as to the reliability of his evidence. I found both Mr D’Angelo and Mr Falcone to be clear in their evidence and consistent with their written statements. They both responded to questioning clearly and without hesitation.

[28] Where there is a conflict in the evidence I prefer the evidence of Mr Falcone and Mr D’Angelo to that of Mr Tisocco.

[29] This decision on the evidence does not resolve the fundamental conflict in this matter: whether Mr Tisocco resigned, as contended by the Respondent, or whether his employment was terminated, as contended by the Applicant.

[30] In Ngo v Link Printing Pty Ltd 23 a Full Bench of the Australian Industrial Relations Commission considered whether or not an employee was entitled to withdraw a resignation:

The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission...The conclusion to be drawn from that case is, we think, clear — a unilateral withdrawal of a notice of termination of a contract of employment is not possible (at 110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union of Australia (1993) 49 IR 323 at 336, by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia (1993) 54 IR 134 at 138 and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd (1995) 60 IR 68 at 87-88.

In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately [sic] the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (at 110-111). 24

[31] I find that Mr Tisocco left the workplace exclaiming that he had had enough and that he was out of there. He went home. He says he patched things up with Mr D’Angelo later that day. Mr D’Angelo says that he told Mr Tisocco he would need to speak to Mr Falcone the next day. Mr Falcone says the Respondent accepted Mr Tisocco’s resignation. Mr Tisocco was paid out his outstanding entitlements but was not paid any notice.

[32] On the evidence I find that Mr Tisocco did resign. He said ‘I’ve had enough of this, I’m out of here’, threw his hat on the ground and went home. Mr D’Angelo told Mr Falcone that morning that Mr Tisocco had walked off the job after being pulled up for not being ready to start work at 7.00 a.m.

[33] I find that Mr Tisocco was angry and agitated when he left the worksite on 3 March 2011, that he was angry when he saw Mr D’Angelo later that day and that he was angry when he saw Mr Falcone the next morning. Whilst I accept that Mr Tisocco felt belittled by being spoken to as Mr D’Angelo did, I find that an extreme reaction to what actually occurred.

[34] I accept Mr Falcone’s evidence that he did say he would see what he could do for Mr Tisocco and that when he said ‘they want me to let you go’ this was an indication that the company did not accept a withdrawal of what it considered was the resignation it was understood Mr Tisocco had given the day before when he walked off the job.

[35] I accept that the comments made by Mr Tisocco to Mr Falcone that he would hear from Fair Work Australia and WorkSafe were made by Mr Tisocco after he realised that his actions had been accepted as a resignation and that he could not get his job back.

[36] In this matter it appears that Mr Tisocco’s resignation was given in the heat of the moment. It was not, however, retracted swiftly. Mr Tisocco sought to, in effect, withdraw his resignation later in the day but he had no unilateral right to do so. The Respondent had the right to accept the resignation and did so.

[37] Given my finding that the employment of the Applicant was not terminated by the Respondent but rather that he resigned, I find that Mr Tisocco has not been unfairly dismissed.

[38] The application is dismissed. An order to this effect will issue separately.

COMMISSIONER

Appearances:

J Tisocco appearing on behalf of himself.

A. Forsyth of counsel for the Respondent.

Hearing details:

2011.
Melbourne:
September 6.

 1   Transcript PN60.

 2   Transcript PN60.

 3   Transcript PN60.

 4   Transcript PN60.

 5   Transcript PN61.

 6   Transcript PN61.

 7   Exhibit A1, paragraphs 4-5.

 8   Transcript PN61; Exhibit A1, paragraph 6.

 9   Transcript PN94.

 10   Transcript PN97.

 11   Transcript PN308.

 12   Exhibit R3, paragraph 5.

 13   Transcript PN308, 340, 344.

 14   Exhibit R3, paragraph 8; Transcript PN300-1.

 15   Exhibit R1, paragraph 3.

 16   Exhibit R1, paragraph 5.

 17   Exhibit R1, paragraph 6.

 18   Transcript PN253.

 19   Exhibit R1, paragraph 7.

 20   Transcript PN256.

 21   Exhibit R1, paragraph 9.

 22   Exhibit R1, paragraph 4.

 23 94 IR 375.

 24 94 IR 375, [16]-[17].

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