Lindsay John French and Bells Dry Cleaners Pty Limited
[1995] IRCA 92
•08 February 1995
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
CANBERRA REGISTRY NO. AI 197 of 1994
Between: LINDSAY JOHN FRENCH
Applicant
And: BELLS DRY CLEANERS PTY LIMITED
Respondent
Before: Judicial Registrar TOMLINSON
Place: Canberra
Hearing Date: 8 February 1995
Judgement Date: 8 February 1995
This judgement is delivered by ex tempore on Wednesday 8 February 1995.
By application dated 13 October 1994, the applicant Lindsay John extending the time written which an application may be made to this Court.
For the purposes of the proceedings today it can be assumed that Order was granted.
The applicant further sought an order declaring the termination of the employment and have contravened Division 3 of Part VIA of the Industrial Relations Act 1988.
The applicant sought also compensation and such other orders that would put him in the same position as if the employment had not been terminated.
The Court heard evidence from:
the applicant Mr French;
Ms Josie Moufarrige, a manageress employed by the respondent;
Mr Howard Tuffy, a licensee of a dry cleaning agency and trusted friend who looked after the respondent’s business while the directors were overseas; and
Mr Nicholas Moufarrige, a director of the respondent.
It was common ground between the parties that the applicant had been employed on and off by the respondent for some ten years and had been most recently continuously employed since 1990 as shift manager. The respondent owned and operated a dry cleaning business and a photographic business. The applicant earned the sum of $412.30 gross.
The applicant represented himself, and told the Court that on the morning of the 15 September 1994 he woke with a sore neck. His shift for that day with the respondent was due to begin at 11.00am.
He stated he telephoned work and advised that he would not be in that day. The applicant stated that he telephoned Ms Josie Moufarrige, the daughter of the director, Mr Nick Moufarrige who was in charge while her father was overseas. The evidence of the applicant in this regard differs from given by Mr Moufarrige who stated under oath that the applicant telephoned his place of work and spoke to his co-workers. I do not however place much weight on this discrepancy.
The applicant stated that he drove to the home of his mother some short distance away where it was suggested that he visit his mother in-law, allegedly a person with some experience in and knowledge of massage. This the applicant did and apparently received a massage for a stiff neck.
The following day Friday 16 September 1994, the applicant reported for work. During the course of that day the applicant stated Ms Josie Moufarrige telephoned him and stated that he had been seen driving around. Whereupon the applicant explained the position concerning the neck massage. Ms Moufarrige allegedly replied:
“O.K.”
According to the applicant 19-20-21 September passed uneventfully at work.
On Thursday 22 September, the applicant stated Ms Moufarrige telephoned him at work and asked for a medical certificate concerning the sick day of Thursday 15 September 1994. The applicant replied that he did not have one, and he told the Court that Ms Moufarrige stated he would not be able to be paid sick pay without such a certificate.
The applicant stated that he replied to her that if she would not pay him his sick pay then she could:
“make up my pay.”
The evidence given to the Court by Ms Moufarrige accords with that of the applicant but Ms Moufarrige stated additionally the applicant said immediately thereafter:
“and I will go somewhere where I will be paid sick pay.”
At this point I find that the applicant signalled to his employer the respondent that he was thinking of resigning - nothing had been said by the employer to force this statement and I do not find the actions of Ms Moufarrige on the part of the respondent in requesting a medical certificate as amounting to constructive dismissal.
The court heard from all accounts that the telephone conversation continued. Allegedly Ms Moufarrige requested the applicant:
“not be hasty.”
There was no evidence of bad workmanship on the part of the applicant and I have to say I did appreciate the courtesy and respect the parties exhibited towards each other.
Ms Moufarrige appeared to make up the days pay with Picnic Day pay - but it seems the applicant refused this offer. I must say this concern shown to the applicant to see that he was not short of money to be most responsible. The conversation concluded with the applicant stating that he wished Ms Moufarrige to discuss the payment of one day’s sick pay with her father.
The director Mr Moufarrige at this time was overseas. The applicant knew it would be some time - even up to two to three days before the father and daughter could communicate. In the meantime the applicant simply waited. Presumably he would be at home waiting for time to pass so father and daughter could communicate. The Court heard no evidence as to whether the Applicant expected to be paid for those days waiting at home. I find the attitude of the applicant in this regard unrealistic and commercially non-viable. The dispute was over one day’s pay. In waiting for a “ruling” from the director it seems the applicant was prepared to put at risk a further two to three days’ pay. I find that in walking out and leaving his place of employment of work, following on from his previous stated intention to Ms Josie Moufarrige that the applicant resigned on Thursday 22 September 1994
Re-inforcing my decision was the evidence given by Mr Nick Moufarrige - he demonstrated it was a work practice of his not to overrule the decisions of his managers - the applicant himself had first hand knowledge of this work practice in his dealings with an employee at another depot on a previous occasion.
A discrepancy arose in the evidence in that the applicant said he said to Ms Josie Moufarrige on 22 September 1994:
“I am not resigning.”
Ms Josie Moufarrige could not recall these words. However both parties agreed the applicant stated, among other things:
“Make up my pay.”
And I find those words signalled the intention to resign and complied with what the applicant proposed to be an indeterminate absence form work, amounted to a voluntary resignation.
Much of the evidence before the Court was given over to correspondence - sent by certified mail - from the respondent to the applicant. The applicant relied on this correspondence to prove his termination was unlawful. The first letter was written by Ms Josie Moufarrige and stated:
“In regard to our phone conversation today, 21 September 1994. Could you please contact Howard Duffy on 018 624 220 within twenty four hours.
I would like to mention that you did not present a medical certificate as requested previously.”
The second letter was written by Ms Josie Moufarrige and stated:
“ We acknowledge the fact that you haven’t responded to the letter dated 21 September 1994 within the forty eight hours specified.
Therefore we acknowledge your termination of employment without notice.
You are required to return the key for the Drive In within 24 hours.”
This court does not find the correspondence referred to as germane to the alleged termination of the applicant - that having happened on 22 September 1994.
Further oral evidence was presented to he court covering the employment separation certificate. That certificate was not before the court but it was common ground between the parties that the applicant wished certain wording to be changed in order that he may receive Social Security payments 6 weeks earlier than would be the course followed by the Social Security Department. I can only assume the form stated that the applicant resigned and was not dismissed by the employer.
The court also heard evidence from Mr Howard Tuffy who indicated the advice he had given the applicant concerning the correct position as to the withholding of notice payments. There were discrepancies as to dates given by some of the respondents’ witnesses but I find these to be inconsequential and do not go to the substance of what happened.
Finally I wish to comment on the evidence of Mr Nick Moufarrige. The court heard the applicant had been previously counselled concerning his failure to produce satisfactory medical certificates. I find the actions of the applicant in withdrawing his labour in the manner in which he did until yet a further discussion had taken place to be unrealistic.
Upon his return from overseas Mr Moufarrige was visited by the applicant - and the job was re-offered with no loss of long service leave entitlements.
However, I am of the opinion that if more employers exhibited the generous and fair attitude as exhibited by Mr Moufarrige in offering the applicant back his job, or at least setting up a dialogue to re-gain his job, the work place would be a better place.
Accordingly, I dismiss the application for the reasons outlined above.
I certify that this and the proceeding four (4) pages are a true copy of the Reasons for Judgment of Judicial Registrar Tomlinson.
Associate: Jeynelle Moffat
____________
Date signed: 16 March 1995
Appearances
applicant: in person
Solicitors for the respondent: Messrs Crossin Barker Gosling, Solicitors
Date of Hearing : 8 February 1995
Date of Judgment : 8 February 1995
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