Lane v Centeq Pty Ltd

[1996] IRCA 121

DECISION NO:  121/96

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4312 of 1995

B E T W E E N:

Joseph Andrew LANE
Applicant

A N D

CENTEQ PTY LTD
Respondent

REASONS FOR DECISION
(delivered ex tempore)

2 April 1996    PARKINSON JR
This is my decision in relation to an application made pursuant to s170EA of the Industrial Relations Act 1988. The applicant was employed as a storeman at the respondent’s pizza business. In opening, counsel for the respondent raised a jurisdiction issue. It was submitted that there had been no termination of employment by the respondent, but a resignation by the applicant.

At the conclusion of the applicant’s case an application was foreshadowed by counsel for the respondent that he be heard on a no case submission. I advised the parties that I had decided an appropriate course to follow would be to determine the jurisdiction question at that point in the proceedings.  This is my decision in relation to that matter.

The jurisdiction issue in this proceeding is whether the termination of employment occurred at the initiative of the employer or the employee. This court is competent to hear and determine claims that result from an alleged unlawful termination of employment where that termination of employment occurred at the initiative of the employer. Article 3 of Part 1 of Schedule 10 of the Convention Concerning Termination of Employment at the Initiative of the Employer together with s170CA and s170CB operate to define the nature of the termination contemplated by S170EA as being one which occurs at the initiative of the employer.

It is clear that the meaning of the term “at the initiative of the employer” can contemplate circumstances where  the termination is not strictly one properly described as constructive dismissal at common law. See: Mohazab v Dick Smith Electronics Pty Ltd, as yet unreported, Industrial Relations Court of Australia, 28 November 1995 and Gunnedah Shire Council v Grout (1996) 134 ALR 156.

The events which led to the termination of the employment involved the applicant in being questioned as to his role in the disappearance of money from the respondent’s premises, and his possession in the workplace of a quantity of cannabis. This interview with Mr Bevan O’Keeffe, a director of the company, took place on 25 July 1995.  At that interview the applicant denied any involvement in any theft of money from the premises, and initially denied possession or ownership of the cannabis produced but subsequently acknowledged it. The applicant’s evidence was that he was informed by Mr Bevan O’Keeffe that he would be speaking to Mr Vin O’Keeffe, the managing director of the respondent, who objected to drugs, and that the applicant was likely to get the sack. The applicant was also told that he ought attempt to contact Mr Vin O’Keeffe in the interim to explain his conduct. At the conclusion of the interview, the applicant returned to work and completed his evening shift.

On 26 July 1995 the applicant attempted to speak to Mr Vin O’Keeffe  by telephone. That was the applicant’s day off.  Mr Vin O’Keeffe informed the applicant that he did not wish to discuss the matter over the telephone, but would speak with him the next day at work. No suggestion was made by Mr Vin O’Keeffe that the applicant’s employment would be terminated.

On the following day, 27 July 1995, the applicant attended work as usual. His evidence was that he approached Mr Vin O’Keeffe and sought to discuss the matter. His evidence was also that he was angry at the discovery of the cannabis, and his belief was that his coat pockets had  been searched. This matter was one which was playing heavily on his mind. Mr Vin O’Keeffe indicated that they would discuss the issue after the applicant had completed the dough making. He subsequently indicated to the applicant that he was busy and that they would discuss matter later, when Mr Bevan O’Keeffe arrived.  The applicant’s evidence is that he felt he was being unfairly treated, and that he felt that the matter was being dragged out and that the respondent was “toying with him”.  His evidence is that he then decided that he was going to leave the respondent. He approached Mr Vin O’Keeffe and informed him “that he was leaving and that he would return his uniform when his pay went in.” 

There is no suggestion in any of the evidence of the applicant of harassment or pressure being placed upon him to resign his employment. The evidence suggests that the respondent, in arranging for discussions to occur, was acting in compliance with the provisions of this Act and in particular S170DC. In advising the applicant of the possible outcome of the interview with Mr Vin O’Keeffe, the respondent was doing no more than giving the applicant a full and complete opportunity to know what it was that would be discussed. The applicant is entitled by S170DC and S170DE(2) to know what it is which is alleged against him and what the possible consequences for his employment were. This was all that was done by the respondent.

In this case there was nothing oppressive about the conduct of the respondent directed to the applicant which would suggest that the applicant had “no real choice” but to resign.  Nor is it a case where the applicant has been told by the respondent “resign or be dismissed”.  The authorities are clear that in these circumstances a termination of employment is likely to be characterised as being at the initiative of the employer.  But this is not the case here.

I am not of the view that this is a case which falls within that class discussed in Mohazab v Dick Smith Electronics Pty Ltd, as yet unreported, Industrial Relations Court of Australia, 28 November 1995,  where the Full Court considered the meaning of termination at the initiative of the employer, and determined that it included a termination of employment where the action  of the employer ‘is the principal contributing factor leading to the termination of the employment relationship’.  I have stated previously that in my view such an approach does not contemplate action of an employer limited to investigating or inquiring into events, or giving an applicant an opportunity to be heard in compliance with provisions of the Act.

I find on the evidence before me that the applicant resigned his employment on 27 July 1995 and that the resignation was voluntarily. I am satisfied, on the applicant’s evidence alone in these proceedings, that there was no termination of the applicant’s employment at the initiative of the employer. The latter is the termination of employment which is contemplated by S170EA of the Industrial Relations Act 1988. For the reasons set out herein I am satisfied that this court does not have jurisdiction to consider the application and I dismiss the application.

The orders of the court will be that the application is dismissed.

I certify that this and the preceding four (4) pages
are a true copy for the reasons for decision of
Judicial Registrar Parkinson delivered ex tempore.

Associate:
Dated:  2 April 1996

APPEARANCES

Solicitors for the applicant:  Petersen Westbrook  Cameron
Solicitor appearing for the applicant:                  Mr B Cameron  

Solicitors for the respondent:  J A Middlemis
Solicitor appearing for  the respondent:              Mr J Middlemis                   

Date of hearing:  2 April 1996

IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 4312 of 1995

B E T W E E N:

Joseph Andrew LANE
Applicant

A N D

CENTEQ PTY LTD
Respondent

MINUTES OF ORDERS

2 April 1996  PARKINSON JR

THE COURT ORDERS THAT:

1. That the application be dismissed.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

CATCHWORDS

INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether termination at the intiative of the employer - whether RESIGNATION

Industrial Relations Act 1988, ss 170EA, 170CA, 170CB, 170DC, 170DE(2)

Mohazab v Dick Smith Electronics Pty Ltd, Lee, Moore and Marshall JJ, Industrial Relations Court of Australia, 28 November 1995
Gunnedah Shire Council v Grout (1996) 134 ALR 156

JOSEPH ANDREW LANE v CENTEQ PTY LTD
VI 4312 of 1995

Before:  PARKINSON JR
Place:  BENDIGO
Date:  2 APRIL 1996