Joshua Malpas v Alfhair Australia Pty Ltd T/A Alfaparf Milano

[2014] FWC 6023

[2014] FWC 6023

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Joshua Malpas
v
Alfhair Australia Pty Ltd T/A Alfaparf Milano
(U2014/6400)

SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 8 SEPTEMBER 2014

Application for relief from unfair dismissal - application dismissed.

[1] On 9 April 2014 Mr J Malpas (Mr Malpas) applied under s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the alleged termination of his employment by Alfhair Australia Pty Ltd T/A Alfaparf Milano (Alfhair) in March 2014.

[2] In order to obtain a remedy in respect of an unfair termination, an employee must be protected from unfair dismissal at the time of being dismissed and must have been unfairly dismissed (s.390(1) of the Act).

[3] Mr Malpas was protected from unfair dismissal at the time of being dismissed (s.382 of the Act). There is a contest as to whether he was unfairly dismissed and specifically whether Mr Malpas was dismissed by Alfhair, a requirement within s.385(a) of the Act for a finding that an employee has been unfairly dismissed.

[4] Section 386(1) of the Act relevantly provides, that 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] Mr Malpas concedes that he resigned from his employment by way of a letter dated 27 March 2014 but argues that he had no option but to resign on the basis of issues raised by his superior about his sales performance, related warnings and comments made to him by that superior. Mr Malpas contends that he was forced to resign because of this conduct, or a course of conduct, engaged in by his employer and was constructively dismissed by Alfhair.

[6] Alfhair contended that it did not dismiss Mr Malpas. Alfhair submitted that the employment ended as a result of the written resignation of Mr Malpas. Alfhair further submitted that it had no intention to terminate his employment and that Mr Malpas was not placed in a position where he was forced to resign.

[7] A forced resignation occurs when an “employee has no effective or real choice but to resign”. 1 The question for immediate determination is whether Mr Malpas was forced to resign due to the conduct of Alfhair. “The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign”2 (although it is not necessary to prove that the employer intended to force the employee to resign). “[S]ome 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” 3 is required.

[8] The conduct of Alfhair relied upon by Mr Malpas as being either intended to bring the employment to an end or having the probable result of bringing the employment relationship to an end in his evidence was a process of reviewing his sales performance and issuing warnings (verbally in January 2014 and a written warning foreshadowed in a meeting of 25 March 2014) and in that process:

● Sales targets which Mr Malpas regarded as unattainable;

● Reliance on incorrect data in assessing his performance; and

● Threatening comments by his immediate superior after the 25 March 2014 meeting.

[9] Even on Mr Malpas’ own evidence, which was not accepted in all respects by Alfhair, I am not satisfied that the process of performance reviews and warnings about the performance and the issues raised with Mr Malpas within that process constituted actions intended to bring the employment to an end or having that probable result. Mr Malpas accepted in his evidence that the sales results of his territory had been decreasing. An email to his superior after the meeting, whilst questioning the sales targets fixed, conceded problems with volume and disciplinary sales and new products sales. In such circumstances the review of his sales performance undertaken by Alfhair could not be reasonably considered to be directed to or having the probable effect of bringing his employment to an end. In the conclusion of the email Mr Malpas indicated that he knew that his superior and the other manager present “were above board” and “this needed to be done” and “I agree with most of what was said”.

[10] Mr Malpas’ decision to resign was, on his evidence, based on a loss of respect for his superior, a “gut feeling” that there was an ulterior motive to the performance management meetings and his perception that other sales persons had been asked to resign in the past. He perceived that he was being pushed and felt he would rather resign than be fired “in a fit of unprofessional anger”.

[11] Mr Malpas’ resignation letter of 27 March 2014 is not suggestive of a forced resignation. It is directed to perceptions of a lack of support and appreciation by Alfhair, in over looking him in the appointment of State Managers, a failure to support an application by him for residency and the failure to recognise some improved sales outcomes (albeit below budget) in the 25 March 2014 performance meeting, which Mr Malpas described as the last straw in the failure by Alfhair to return his “dedication and loyalty”.

[12] The fact that Mr Malpas had been interviewed for a position by an alternate employer prior to the 25 March 2014 performance meeting with Alfhair and had received an offer of employment on 27 March 2014 prior to writing his resignation letter further suggests that Mr Malpas resigned from his employment at Alfhair without being forced to do so as a result of action on the part of Alfhair directed to or having the probable effect of forcing his resignation.

[13] On the evidence, I am not satisfied that Mr Malpas was forced to resign or had no option but to resign. Mr Malpas resigned from his employment. He was not dismissed by Alfhair. He was not unfairly dismissed. His application for relief is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

J Malpas on his own behalf.

H Koetsier on behalf of the Respondent.

Hearing details:

2014.

Melbourne:

September 1.

 1   Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206.

 2   Australian Hearing v Peary (2009) 185 IR 359, 367 at para 30.

 3   O’Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at para 23.

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