Mark Butler v The Butchers Nest Pty Ltd

[2013] FWC 853

[2013] FWC 853

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mark Butler
v
The Butchers Nest Pty Ltd
(U2012/13351)

COMMISSIONER MCKENNA SYDNEY, 7 MARCH 2013

Application for unfair dismissal remedy - resignation - application dismissed.

[1] Mark Butler (“the applicant”) has lodged an application pursuant to s.394 of the Fair Work Act (2009) seeking an unfair dismissal remedy. The applicant was formerly employed by The Butchers Nest Pty Ltd (“the respondent”) in its butcher’s shop as a butcher during the period 1 March 2011 to early-September 2012. The applicant contends the termination of employment was brought about through dismissal. The respondent contends the termination of employment was brought about by the applicant resigning and objects to the application on the basis there was no dismissal. That is, in his Form F2 application for an unfair dismissal remedy, the applicant contended he was notified of the dismissal on 9 September 2012 in circumstances where the dismissal took effect on 7 September 2012. The respondent in its Form F3 employer’s response contended the applicant resigned on 7 September 2012.

[2] The respondent declined to participate in the usual, initial telephone conciliation. As such, the Unfair Dismissal Case Management Team (“UDT”) issued standard directions for a Jurisdiction (Resignation) and Arbitration Conference/Hearing as to the respondent’s objection that the applicant had resigned. The file record shows there were various communications between the parties and the UDT about compliance with directions and other matters. Further to a decision on transcript on 6 December 2012, Jones C ordered on 18 December 2012 that the application be dismissed, but that order subsequently was set aside. In consequence, revised notices of listing were issued, first, as to the dates listed for the proceedings and, second, as to a reduction in the number of days.

[3] Following the allocation of the file to me, I granted an extension of time to the respondent for the lodgement of its materials. I otherwise declined to accede to respondent’s application that there be a further adjournment of the rescheduled hearing date.

[4] In the proceedings on 6 February 2013, the applicant appeared on his own behalf. The respondent was represented by its proprietor, Mr S Greening.

[5] The materials lodged by the applicant pursuant to the directions principally comprised the following:

• an email addressed to the UDT dated 12 December 2012 concerning compliance with directions, together with certain hand annotations by the applicant highlighted in pink highlighter pen;



• a copy of the transcript of the proceedings before Jones C on 6 December 2012 concerning the applicant’s non-compliance with the directions issued by the UDT (being proceedings where the applicant did not enter an appearance), which contained certain hand-annotated, highlighted observations and commentary about submissions that had been made by Mr Greening that day;



• a copy of an undated email, with the applicant’s hand annotations and highlighting, concerning an insurance policy matter;



• various pay advices, one of which was hand annotated by the applicant;



• a signed statement concerning the applicant’s attendance at Crow’s Nest police station, together with a hand annotation by the applicant; and



• a “To whom it may concern” letter dated 15 June 2012 from Mr Greening confirming the applicant’s full-time employment and annual salary with the respondent, together with hand annotations and highlighting by the applicant.

[6] The materials lodged by the respondent principally comprised the following:

• statements by an employee and owner of another company (apparently the respondent’s accountants) concerning certain incidents that occurred following the termination of employment;



• a statement by Mr Greening concerning matters relevantly related to events on 7 September 2012, together with attachments including: documents from the Tribunal concerning the proceedings; financial records; mobile telephone records; a statement prepared by Mr Greening for the Fair Work Ombudsman; a series of text messages between the applicant and Mr Greening; and a statutory declaration by Mr Greening’s mother concerning a loan to the applicant.

[7] In the proceedings on 6 February 2013, the respondent also relied on CCTV recordings concerning footage of certain events on 7 September 2012.

[8] I am bound to observe that, even allowing for the fact both parties were unrepresented, the materials lodged by the applicant pursuant to the directions were essentially bereft of content relevant to the determination of whether the termination of employment was brought about by a dismissal or a resignation. Some of respondent’s materials, including the CCTV footage, appeared to have some greater relevance to the matter under consideration.

[9] In the proceedings on 6 February 2013, the matters raised by the parties discursively traversed a range of matters, with only some matters relevantly being concerned with the issue that was before me for determination as to whether the termination of employment was effected by a resignation or a dismissal. For example, both parties’ submissions dealt with the matter of a loan which the respondent’s materials contend was extended to the applicant by Mr Greening’s mother as well as matters directly and indirectly related to alleged underpayments.

[10] Neither party objected to the tender of the materials that had been filed pursuant to the directions. Neither party sought to cross-examine the other. In support of their respective contentions as to the nature of the termination of employment, the applicant and Mr Greening elaborated in submissions their competing accounts of the circumstances of what had occurred on 7 September 2012.

[11] Mr Greening adduced into evidence CCTV footage recorded on 7 September 2012 at the shop’s premises. The CCTV footage does not contain a sound recording. The relevant segments run for only a short period of time. In the proceedings, the parties spoke to what they respectively contended was disclosed on the CCTV footage. The parties gave competing characterisations of what was recorded on the CCTV footage in support of those respective contentions.

[12] Having considered materials before the Commission and the parties’ submissions, I incline to the view that the termination of employment occurred on 7 September 2012 and that the termination of employment was the result of a resignation by the applicant. While I accept that what is recorded on the CCTV footage is open to different interpretations (and I note that the parties contended for competing and different interpretations), I think that, on balance, the position advanced by the respondent is to be preferred and accepted. While there are various matters which lead me to this conclusion, I consider the following matters, in particular, tend to support the respondent’s contention that the applicant resigned on 7 September 2012 as opposed to the applicant’s contention that he was dismissed by the respondent.

• The CCTV footage records the applicant gathering his collection of butchers’ knives and wrapping them in an apron prior to departing the premises on 7 September 2012. It is common ground that the applicant did not ordinarily remove his knives from the premises when he left work after a shift, and had never removed them prior to 7 September 2012. It is also common ground that the respondent periodically arranged for a knife sharpener to sharpen the knives at the butcher’s shop. I have considered the applicant’s submission that he removed the knives when he left the premises on 7 September 2012 because he was concerned Mr Greening would damage them by blunting them. It seems to me, however, that a more likely and plausible explanation was that the applicant removed the knives because he had resigned from his employment with the respondent and did not intend to return; and, naturally enough in those circumstances, wished to take with him his, as it were, tools of the trade.



• The CCTV footage records Mr Greening leaving the shop premises for a period of time and then returning. Mr Greening explained that he briefly left the premises to obtain cash to pay the applicant in circumstances where the applicant had requested cash payment for the hours he had worked. Mr Greening did not have enough money in the cash register to cover the amount the applicant had requested. It is common ground that Mr Greening gave the applicant a cash payment on 7 September 2012 after having left the premises for a short period of time. The payment of this money seems to me to be consistent with the applicant having resigned and, in conjunction with that resignation, seeking a payment on termination for the work he had performed that week to the time of his departure. (It may be noted the applicant has otherwise made a complaint to the Fair Work Ombudsman in relation to alleged underpayments with respect to the period more generally preceding 7 September 2012.)



• For reasons which are not clear, but as is recorded on the CCTV footage, the applicant also removed and placed in his pocket some form of document or booklet (which, Mr Greening submitted, concerned accounts of payments to his mother or accounts for a local restaurant customer, or both; but which the applicant submitted concerned some type of time and wage records). One way or the other, the applicant’s removal of this documentation in Mr Greening’s absence tends to suggest he wished to remove some form of records from the premises prior to his departure in circumstances where he did not otherwise intend to return given his resignation.

[13] I have noted and considered the applicant’s submissions including those that Mr Greening did not ask the applicant for the keys on 7 September 2012 and the applicant’s submission that he would not have resigned in circumstances where, the applicant alleges, the respondent owed him a substantial amount of money. Mr Greening submitted he did not ask the applicant to return the keys or work shirts at the time he resigned, because he did not want to “provoke” the applicant. Nonetheless, over the weekend following 7 September 2012, Mr Greening and the applicant subsequently exchanged text messages about, among other matters, returning the keys and work shirts, alleged underpayments and loan repayments - although it is clear from the tenor of those text that there was dispute about a termination of employment having occurred on 7 September 2012.

[14] On a consideration of the materials and submissions, I have not been satisfied the applicant was dismissed by the respondent on 7 September or otherwise notified of that dismissal on 9 September 2012. I accept the respondent’s contention that the applicant resigned of his own volition on 7 September 2012, albeit it appears he subsequently had misgivings. That is, the applicant contacted Mr Greening less than an hour after his departure on 7 September 2012 and, according to Mr Greening’s uncontested submission, “[the applicant] apologised for the way he spoke to me and acted on the Friday”.

[15] The condition-precedent of dismissal does not arise in relation to this application for an unfair dismissal remedy. As such, an order dismissing the application has been issued in conjunction with this decision.

COMMISSIONER

Appearances:

M. Butler in person.

S. Greening for The Butchers Nest Pty Ltd

Hearing details:

Sydney.

2013.

6 February.

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<Price code C, PR533865>