Joseph Alderuccio v Sellers Muldoon Benton Pty Ltd T/A Sellers Muldoon Benton

[2014] FWC 162

[2014] FWC 162

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joseph Alderuccio
v
Sellers Muldoon Benton Pty Ltd T/A Sellers Muldoon Benton
(U2013/12132)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 8 JANUARY 2014

Application for relief from unfair dismissal - jurisdictional objection - resignation - application dismissed.

[1] Mr Joseph Alderuccio was employed by Sellers Muldoon Benton Pty Ltd. He resigned on 17 June 2013 and gave four weeks’ notice. On 11 July 2013 he was told that he was to finish work immediately and was escorted from the premises. He was paid his entitlements up to and including the 15 July 2013.

[2] In his application Mr Alderuccio said that he had been dismissed on 11 July 2013. At the conference Mr Alderuccio said that he had been forced to resign because of conduct by his supervisor.

[3] The issue to be determined in this matter is whether Sellers Muldoon Benton dismissed Mr Alderuccio on 11 July 2013. If he was not dismissed on 11 July 2013, it is necessary to determine if Mr Alderuccio was forced to resign.

[4] If Mr Aleruccio was dismissed I must determine if that termination was harsh, unjust or unreasonable.

[5] Sellers Muldoon Benton lodged an application that the claim be dismissed because it was frivolous or vexatious or the application for a remedy had no reasonable prospects of success. Sellers Muldoon Benton submitted that if the application was dismissed because Sellers Muldoon Benton did not dismiss Mr Alderuccio then they did not press this application. However in the event that I find that he was dismissed then the issue must be determined.

[6] By agreement of the parties the matter proceeded in a conference.

[7] Mr McNab of counsel was given permission to appear for Sellers Muldoon Benton. I did so because I considered that it would enable the matter to be dealt with more efficiently. The case does not simply involve a factual dispute between the parties. In the event that Mr Alderuccio’s version of events was accepted, it would be necessary to determine whether a decision by an employer to terminate an employee’s employment during the notice period where payment in lieu was paid is an unfair dismissal.

[8] Further Mr Alderuccio had initially been represented by solicitors which was a factor in Sellers Muldoon Benton’s decision to engage legal representation. Mr Alderuccio’s lawyer advised the Commission on 4 September 2013 that he no longer represented Mr Alderuccio but it does not appear that he notified Sellers Muldoon Benton until 26 September 2013 when a notice of representative ceasing to act form was filed and served. I accept that it would be unfair to deny Sellers Muldoon Benton legal representation in these circumstances because Mr Alderuccio decided to represent himself. Further I did not consider in all the circumstances that Mr Alderuccio would be disadvantaged in presenting his case.

Did Sellers Muldoon Benton dismiss Mr Alderuccio on 11 July 2013?

[9] It was uncontested that Mr Alderuccio was working out his notice period. On 11 July 2013, Mr Muldoon, a partner with the firm, told him that a member of staff had complained that Mr Alderuccio had made disparaging remarks to her about Mr Alderuccio’s supervisor and that she was too frightened to attend work. Mr Alderuccio denied making any such remarks. Mr Muldoon gave oral evidence that Mr Alderuccio had admitted making inappropriate comments to the member of staff. In the end I do not need to resolve this difference in the evidence. Mr Alderuccio’s employment contract provided that in circumstances where an employee has given notice to terminate the contract, “the employer may in its absolute discretion end the Employee’s employment without notice on payment of an amount equal to the Employee’s Salary for the notice period, or any remaining proportion of the notice period.” 1

[10] Mr Alderuccio said that Mr Muldoon told him that the decision had been made to “terminate [his] employment effective immediately due to the comments that [he] made,” He said he was marched out of the office in a very degrading manner in the presence of a number of staff in the office.

[11] Mr Muldoon said that Mr Alderuccio was told that he was not required to work the rest of his notice period. Mr Muldoon was questioned about why Mr Alderuccio was required to leave immediately and why he was escorted from the premises. It was his evidence that this had occurred when other employees were terminated and that given he had an employee who did not wish to attend work because of Mr Alderuccio’s comments it was appropriate that Mr Alderuccio be told to leave the premises. Mr Muldoon denied telling Mr Alderuccio that his employment was terminated immediately.

[12] Mr Alderuccio received two payslips for EFT payments dated 11 July 2013. One was for pay advice for the period 1 July 2013 to 11 July 2013 and the other was for annual leave accruals to 11 July 2013. A further pay slip for an EFT payment dated 12 July 2013 provided pay advice for the period 12 July 2013 to 15 July 2013. The pay advice showed additional accrued annual leave and wages. Mr Muldoon could not explain why the pay advice given on 11 July 2013 did not include all payments due up to 15 July 2013 which was the date on which Mr Alderuccio was due to finish work.

[13] I find on the evidence before me that Mr Muldoon did not terminate Mr Alderuccio’s employment on 11 July 2013. I prefer his evidence about what occurred on 11 July 2013. I accept his evidence that he determined that given the complaint and given Mr Alderuccio’s resignation that he would not require Mr Alderuccio to work out his notice period. I accept his clear denial that he did not terminate Mr Alderuccio’s employment with immediate effect. I do so because there was no reason for him to terminate Mr Alderuccio’s employment on 11 July 2013 in circumstances where Mr Alderuccio had already resigned. The easiest solution for Mr Muldoon was to pay out Mr Alderuccio’s notice which he did.

[14] I consider that Mr Alderuccio interpreted the decision to require him to immediately leave the premises as a decision to immediately terminate his employment. While Mr Alderuccio is aggrieved at the unfairness of being told to leave immediately and his being escorted from the premises, that does not change what occurred. Sellers Muldoon Benton was entitled not to require Mr Alderuccio to work out his notice or part of his notice period and the reasons for that decision and the manner in which the decision was implemented are not relevant to the question to be determined in this matter. I therefore conclude that Sellers Muldoon Benton did not terminate Mr Alderuccio’s employment on 11 July 2013.

Was Mr Alderuccio forced to resign?

[15] While Mr Alderuccio’s submissions did not make it clear that he had been forced to resign 2, at the conference Mr Alderuccio claimed that he was forced to resign and find another job because of bullying by his supervisor. It was submitted by Sellers Muldoon Benton that it would be unfair to consider this submission as it was raised for the first time at the conference.

[16] Mr Alderuccio gave evidence that he had to endure and deal with varying levels of bullying and discrimination by his supervisor whilst he was employed. He gave evidence that he had seen bullying of other employees by his supervisor. He said that the bullying he experienced included “being given an exceptionally high level of work with unreasonable expectations of completion of such work.” He also said he was told that he was too young to be promoted. Mr Alderuccio gave evidence that after he had resigned he told one of the partners that he was doing so because of treatment he had received. He then made allegations of subsequent conduct that he found intimidating and threatening.

[17] There was no evidence that Mr Alderuccio raised these complaints with Sellers Muldoon Benton prior to his resignation. His letter of resignation stated that he had enjoyed working at Sellers Muldoon Benton and he thanked them for the support given to him.

[18] Mr Alderuccio’s evidence lacked sufficient detail to enable a finding to be made that there was bullying and discrimination. Importantly there is no statement by him that the conduct forced him to resign. The highest his evidence gets is that the conduct was the reason he resigned. Even if there was bullying and discrimination the evidence showed that Mr Alderuccio remained in employment until he found alternative employment. Even if Mr Alderuccio had good reason to look for other work, and I make no finding in respect of this, his decision to resign his employment was because he had found another job. I therefore do not accept the submission of Mr Alderuccio that he was forced to resign.

Conclusion

[19] As I have found that Mr Alderuccio’s employment was not terminated at his employer’s initiative his application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr J Alderuccio for himself.

Mr A McNab of Counsel for the Respondent.

Hearing details:

2013.

Melbourne;

13 November.

 1   Exhibit A1 at attachment B1 at clause 15.3.

 2 See section 386(1)(b) of the Fair Work Act 2009.

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