Manfred Schlesier and Transport Workers Union of Australia v Mobil Oil Australia Ltd
[1996] IRCA 63
•20 February 1996
DECISION NO: 63/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - RESIGNATION - whether voluntary - whether coerced by employer.
Industrial Relations Act 1988 s170EA
CASES:Mohazab v Dick Smith Electronics Pty Limited, (Full Court, Industrial Relations Court of Australia, Lee, Moore and Marshall JJ, 28 November 1995)
Gunnadeh Shire Council v Grout, (Full Court, Industrial Relations Court of Australia, Wilcox CJ and Spender and Beazley JJ, 19 December 1995)
MANFRED SCHLESIER and
TRANSPORT WORKERS UNION OF AUSTRALIA
-v- MOBIL OIL AUSTRALIA LTD
No. VI 3916 of 1995
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 20 February 1996
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 3916 of 1995
B E T W E E N :
MANFRED SCHLESIER and
TRANSPORT WORKERS UNION OF AUSTRALIA
Applicant
AND
MOBIL OIL AUSTRALIA LTD
Respondent
MINUTES OF ORDERS
Judicial Registrar Murphy 20 February 1996
THE COURT ORDERS:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 95/3916 of 1995
B E T W E E N :
MANFRED SCHLESIER and
TRANSPORT WORKERS UNION OF AUSTRALIA
Applicant
AND
MOBIL OIL AUSTRALIA LIMITED
Respondent
Before: Judicial Registrar Murphy
Place: Melbourne
Date: 20 February 1996
EX-TEMPORE REASONS FOR JUDGMENT
In these proceedings for a remedy under s170EA of the Industrial Relations Act 1988 (“the Act”) the central factual and legal issue was whether there had been a termination of employment at the initiative of the respondent employer.
Background.
The applicant is aged 55 and for 19 years prior to July 1995 had been employed by the respondent, primarily as a driver. In 1988 he suffered serious injuries when he was struck by a car in non-work related circumstances. He was off work for an extended period on sick leave and leave without pay. The applicant suffered a reaction to his injuries, and required treatment for depression.
The Victorian Despatch Manager of the respondent, Mr William Parker, became closely involved in attempts to have the applicant resume work. He had a number of conversations with the applicant directed to that eventuality. In July l989 a special position was created for the applicant at the instigation of Mr Parker. It was as a driver within the respondent's Yarraville terminal driving a “suck truck” cleaning sludge drains The agreement for the position was in evidence. It was to last a maximum of one year, but in fact went for over three years.
The applicant remained in that position until 1993, when he was transferred to a refuelling position at the respondent's depot at Tullamarine. Mr Parker gave evidence that one aim of this transfer was to progress the applicant to a full resumption of duties as a driver within the respondent. In 1994, after some eight months in the position at Tullamarine, the applicant was transferred back to the “suck truck” position he had previously held. He was in this position for about eight months until June 1995.
At this time the respondent decided to restructure its operations and reduce the staff of drivers at the Yarraville terminal from 75 to 45 employees. All employees were invited to apply for the new positions. Expressions of interest were also sought for redundancy packages. All the employees, including the applicant, were interviewed by the manager, Mr Parker. The applicant did not wish to cease work, and was successful in obtaining a position as a day shift tanker driver. His old position of “suck truck” driver was abolished.
There was some dispute on the evidence as to whether the applicant received any retraining to allow him to resume tanker driving duties. The applicant said in his evidence that he had sought and been denied training, while the respondent's witnesses said that assistance was provided. It is unnecessary to resolve the issue. It was common ground that the applicant had, however, been driving the tankers for a week prior to the restructuring changeover on about 8 June 1995.
The product mix up incident.
On 17 June the applicant was responsible for an incident at a service station whereby two different types of petrol were inadvertently mixed. This resulted in dislocation to the service station because the tanks had to be pumped out. The applicant said that the incident occurred because of his lack of familiarity with some changed product codes of the respondent.
On the applicant's version, on that day he had a conversation with his manager, Mr Parker. Mr Parker puts the conversation three days later, and I accept his evidence on that issue. The applicant said that he was unable to recall all that was said in the conversation. He said that he "knew he was guilty". He said he tried to throw himself at the mercy of Mr Parker by offering his resignation, hoping "he would not accept it". He said that Mr Parker told him to take some time off, which he did.
Mr Parker's version of the conversation was more detailed. Mr Parker said that the conversation took about three-quarters of an hour. He had asked the applicant how he was coping with the tanker driving, and the applicant had replied that he wished to resign. He said he had let down the team and felt he had no future driving tankers. The applicant had been agitated and concerned at Mr Parker's reaction, and appeared worried that he may be disciplined. Mr Parker had allayed these fears. Mr Parker had eventually talked the applicant out of resigning. He said that the applicant was taking a serious step, should discuss it with his wife, and generally think about it. The applicant had asked about other positions at the Yarraville terminal, and Mr Parker had indicated that he would ask the managers of the other two divisions but, given the recent restructuring, did not hold out much hope. In the discussion he had suggested some time off, and that the applicant should have some counselling as he had done a few years previously. The applicant denied that in the conversation with Mr Parker he discussed alternative duties. He could not recall saying to Mr Parker that he was not happy doing day shift tanker driving, and saying that he wanted to do something else.
The applicant resumes work.
The applicant took four weeks paid leave and saw a counsellor provided by the respondent. He resumed work on Monday 17 July. On that day he was directed to accompany, as a passenger, one of the Driver Supervisors, Mr Pritchard, in order to familiarise himself with company procedures. Mr Parker gave evidence that this was because of the product mix up incident, and was to re-familiarise the applicant with correct procedures as part of a quality assurance program.
During the day Mr Pritchard crashed the tanker into the rear of a stationary car. An ambulance was called to the scene, and although there were children in the back of the car there were no injuries. The applicant was shaken by this incident. He went home. Later that evening he was contacted by the Distribution Facilitator at Yarraville, Ms Pearce, and asked how he was. He told Ms Pearce that he was not too bad. That night the applicant was unable to sleep.
The next morning he said he felt horrible, and decided that he was unable to attend work that day. His Driver Co-ordinator rang him, and he agreed to ring Ms Pearce a little later. He rang her at 8.45 am, and told her how he was feeling. Her evidence was that the applicant said he had not slept, and was "feeling a bit shaky". Ms Pearce rang back and asked the applicant to come in to see the company nurse. When the applicant came in he saw the nurse, and was then directed to see Mr Parker. Ms Pearce's evidence was that in one of the phone calls she asked the applicant to see the company nurse and then Mr Parker.
This was because, with the applicant not attending work on that day, the truck accident became a "lost time accident" which had to be properly processed by the respondent. The reason why the applicant had to see Mr Parker was that Mr Parker had to assess whether it was proper for him to approve the applicant to return to driving after the accident.
The crucial conversation.
The applicant attended at the Yarraville depot, saw the company nurse and then saw Mr Parker at about 10 am. On the applicant's version Mr Parker commenced the meeting by asking him to sit down. He proceeded to stare at him, making him uneasy. Mr Parker had then asked, "What do you want me to do now?" The applicant had said that he “was looking for advice”. Mr Parker had then mentioned that if the accident had affected him to such an extent, then maybe he was not suited for tanker driving. He had mentioned that taking days off had caused extra work for other drivers and additional expense for the respondent. He said that in the applicant’s condition, he may be able to “hang around for a year”, but if he did so and “caused problems” he would get no reference. He said that if the applicant left now he would receive a good reference and superannuation pay out. The applicant at this point felt that he was "in the frying pan". He said he thought that Mr Parker may sack him for the product mix up and for taking the day off. He then told Mr Parker that he would resign. In his evidence he said that he knew "I might get the sack sooner or later", and that if that happened it would cost him a lot of money.
In cross-examination the applicant said that he was pressured into resigning as a result of "the accident and taking a day off". He said that he did not want to resign and never intended to tender his resignation that day. He said that at some stage he had said, "I will resign", but that this was near the end of the conversation when Mr Parker had mentioned his pay, referred to his superannuation, and to a reference.
On the applicant's version, Mr Parker had a letter of resignation typed up which the applicant had signed, and he had then left the premises. That night the applicant had been phoned by the company doctor who had asked if he needed counselling. A counsellor had later phoned, and he had met him the next day. He had told the counsellor that he felt he had been pressured into resigning. On the Thursday he had contacted an organiser of the applicant's union, Mr Fennell, and he had seen him on Friday 21 July.
Mr Parker's version of the crucial conversation was different. He first denied that prior to the meeting he had any intention of doing anything about the applicant's employment. He said that the product mix up incident was not a dismissible offence, and that in the first instance was usually dealt with by counselling. The accident on 17 July was not the fault of the applicant. Mr Parker's concern in seeing the applicant was to see why he had not reported for work, and to see if he needed any more counselling. Mr Parker was concerned to check that all the details of the accident were completed and it was okay for the applicant to resume his functions. Mr Parker made reference to a prior accident involving the respondent and the general duties to the public of a person in his position.
Mr Parker said that the conversation opened with him asking the applicant what the problem was, in that he had not come to work. The applicant had then said he did not feel he "could drive vehicles any more". He was letting the side down and wanted to resign. Mr Parker's evidence was that he then reminded the applicant of the conversation of a month previously where he had talked the applicant out of resignation. He told the applicant that he should give the matter a lot of thought. The applicant had said that he had thought about it over the previous weekend and was going to resign. The conversation moved to other jobs the applicant may have been able to do if he left the respondent, and in particular driving something with less responsibility than a load of petrol. The applicant had not indicated he did not want to resign, and Mr Parker said to him that he should have a period to think about the matter.
Mr Parker left the applicant in his office for 20 to 30 minutes. When he returned the applicant had confirmed his intention to resign. Mr Parker had then asked the applicant did he wish to get his resignation typed up then and there. The applicant had replied “yes”. Mr Parker had then had a letter of resignation typed up. The applicant had signed the letter, and had then asked Mr Parker for a reference. Mr Parker had indicated that he would give him a personal reference, and that he had given references to some of the other employees who had previously been made redundant.
Ms Pearce had been present at the later part of the conversation when details of final pay and superannuation were given, and keys were returned. Mr Parker denied doing anything to pressure the applicant to resign. He said he had no basis to do this because the applicant had not done anything to justify that. The applicant had not been responsible for the truck accident, and he could have taken action regarding the product mix up the previous month. Further, Mr Parker said that he had previously tried to get the applicant back to work, and he was only concerned to do that on this occasion. Mr Parker contrasted the applicant's demeanour at the meeting of 17 July with the previous meeting where the applicant had been upset and agitated. He said that the applicant appeared "relieved at having decided to resign", and went on that he was "as though he had a weight lifted from his shoulders". He was not agitated or upset, and seemed happy and comfortable. Ms Pearce said the applicant appeared quiet. Mr Parker specifically denied saying that the applicant was creating a lot of trouble for the respondent, or that if he caused problems he would not get a reference. Mr Parker denied any discussions about the differing effect on superannuation entitlements of a dismissal and a resignation. He had offered the applicant a counsellor, and was not sure if he had arranged for the respondent's doctor to contact the applicant.
The only other evidence going to the crucial conversation was from Ms Pearce. She confirmed that at one stage Mr Parker had left the meeting with the applicant, and that 15 or 20 minutes later Mr Parker had arranged for the resignation letter to be prepared. She corroborated Mr Parker's evidence that when signing the resignation letter the applicant had sought a reference.
The applicant called evidence from Mr Fennell, a union organiser of the applicant union. He said that he had a conversation with Mr Parker, and then with Mr Parker's successor, Mr Francis, on Friday 21 July, and told both of them that the applicant felt he had no option but to resign, and that he wanted the respondent to reconsider the matter. Mr Francis gave evidence that all Mr Fennell had said on that day was that the respondent would be receiving some written correspondence about the matter.
Findings on the disputed evidence.
In reaching my conclusion as to which of the competing versions of events is to be believed, there are no contemporaneous documents to assist. The Court is left to rely on the inherent likelihood of the versions, and to assess the presentation and demeanour of the respective witnesses.
The evidence showed that Mr Parker had a long involvement with the applicant. That involvement appears to have gone well beyond what might ordinarily be expected, and to have been genuinely designed to rehabilitate the applicant after a serious accident in l988. Mr Parker had an intimate involvement in selecting the applicant for a position with the respondent when it restructured its operations in June 1995. On 17 June 1995 I am satisfied that Mr Parker talked the applicant out of tendering his resignation after the product mix up incident. This was done on the basis of a continuing endeavour to assist the applicant with his full return to the driver workforce of the respondent. The conversation on 18 July must be considered in the light of both the conversation of 17 June and Mr Parker's own responsibilities as a manager. I accept his evidence that he had no disciplinary reason to see the applicant on that day. He had managerial reasons that did not point to any need to put pressure on the applicant. It was clear that the applicant bore no responsibility for the truck accident the previous day. Mr Parker was concerned to ascertain why the accident had become a "lost time accident" when no-one was injured. He was concerned to get the applicant back to his new duties in the restructured workforce after the four weeks leave he had granted the applicant the previous month.
It follows from this that unless Mr Parker had a radical and unexplained change of heart, there is a ring of truth to the version of events promulgated by the respondent, and in particular by Mr Parker. Further, his demeanour and presentation were impressive. In contrast, the applicant was vague and unconvincing in his version. He was unable to point to any real reason why Mr Parker should pressure him into resignation as alleged. The applicant's memory of details of the critical conversation left much to be desired, and contrasted with the convincing evidence of Mr Parker, corroborated in part by Ms Pearce.
One other matter should also be considered. This is whether or not the applicant's actions on that day were not done voluntarily, due to some medical or other condition. Here the Court heard no medical evidence as to the applicant's mental state. The only lay evidence was from Mr Parker who contrasted the applicant's demeanour of a month before. There was no evidence that on 18 July the applicant appeared distressed. He told Ms Pearce that he felt a bit shaky, but he was happy to drive his car to the terminal, as Ms Pearce gave evidence that he went to the car to retrieve a key after he signed his resignation. Mr Parker described him as seeming to have a load lifted from his shoulders as a result of the decision. I am satisfied that there was no suggestion that at the meeting of 18 July the applicant's condition was such that he was not capable of acting rationally, or that indeed he was acting irrationally.
It follows that I prefer the respondent's version of events. I reject the applicant's version that he was pressured into resignation by Mr Parker. I find that he decided, after having been talked out of resignation the previous month, to resign after the truck accident on 17 July. I am satisfied that he was given an adequate opportunity by Mr Parker on 18 July to consider whether he wished to pursue his resignation. I further find that there was no evidence that at any time he was in any mental state which could result in the decision taken being a product of confusion or otherwise involuntary.
Termination at the initiative of the employer.
The applicant carries the onus of proof that this was a termination at the initiative of the employer. Where there is a resignation it is necessary to apply the facts as found to the legal test as to whether there was a “termination at the initiative of the employer” for the purposes of the Act. This matter has been considered in two Full Court decisions. In Mohazab v Dick Smith Electronics Pty Limited, (Full Court, Industrial Relations Court of Australia, Lee, Moore and Marshall JJ, 28 November 1995), the Court said in relation to the meaning of the term “termination at the initiative of the employer”:
“Consistent with the ordinary meaning given to the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.
......
In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer, but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee.”
Here, on the respondent's version of events, which I accept, there was no action of the employer which was the “principal contributing factor” which led to the termination of employment. I am satisfied that there was no threat or undue pressure by Mr Parker. On the contrary, his actions followed his actions a month earlier, and sought to have the applicant carefully consider his position without any coercion by the respondent.
The crucial factor here is the inability of the applicant to point to any particular event which would justify the respondent in even calling for the applicant's resignation. The applicant had not done anything. He had been given a month off after the product mix up incident, but he bore no responsibility for the truck accident. On the authority of Mohazab (above), the applicant I find has not shown there was any action of the employer which led to his resignation.
The decision in Gunnedah Shire Council v Grout, (Full Court, Industrial Relations Court of Australia, Wilcox CJ, Spender and Beazley JJ, 19 December 1995), is also relevant to the second basis of the decision in Mohazab. This is that the employment must be left voluntarily. In Grout the Full Court held that there was no termination at the initiative of the employer because Mr Grout had voluntarily tendered his resignation. The employer, it was found, was entitled to accept the notice of resignation and act on it. The Court adopted the Mohazab analysis that the act of termination must be voluntary.
I have earlier made findings that the applicant was not suffering any condition which would indicate that he was not acting rationally. The signed letter of resignation, therefore, must be seen as a voluntary act and capable of being accepted by the respondent. The respondent has satisfied me that it was in the same position as the employer in Grout (above), and was thus entitled to deal with the applicant on the basis that he knew "what he was doing and wanted to resign". The applicant has not discharged his onus of proof that the act of the employer "result(ed) directly or consequentially in the termination of the employment and the employment relationship (was) not voluntarily left by the employee”: Mohazab (above). The application must be dismissed.
MINUTES OF ORDERS
THE COURT ORDERS:
The application is dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.
I certify that this and the preceding ten (10) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy.
Associate:
Dated: 20 February 1996
Representative for the Applicant: Transport Workers Union of Australia
Counsel for the Applicant: Mr W Friend
Solicitors for the Respondent: Corrs Chambers Westgarth
Counsel for the Respondent: Mr C Blanden
Date of hearing: 19 February 1996
Date of judgment: 20 February 1996
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