Matthew Dumpleton v Australian Warehouse Solutions Pty Ltd

[2015] FWC 5238

[2015] FWC 5238

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Matthew Dumpleton
v
Australian Warehouse Solutions Pty Ltd
(U2015/927)

DEPUTY PRESIDENT LAWRENCE SYDNEY, 6 AUGUST 2015

Application for relief from unfair dismissal.

Introduction

[1] On 4 March 2015 an application pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal was lodged by Matthew Dumpleton (the Applicant) against his former employer, Australia Warehouse Solutions Pty Ltd (the Respondent).

[2] The application was filed, on the Applicant’s behalf by Mr David Prior of Priority Business Lawyers.

[3] The Applicant commenced employment on 14 May 2007 with the Respondent. His dismissal was notified on 13 February 2015 and took effect on the same day.

[4] The Applicant claims that he was forced to resign on that day by a course of conduct of the Respondent.

[5] The Applicant seeks the maximum 26 weeks compensation.

[6] The matter was conciliated on 31 March 2015 but no settlement was reached.

[7] I conducted a telephone programming conference on 16 June 2015.

[8] The matter was heard in Newcastle on 23 June 2015.

[9] The Applicant was represented by Ms J. Walker, Solicitor and the Respondent by Mr M. Rodgers, of Livingstones, Australia. Both were granted permission to appear pursuant to s.596 of the Act.

[10] The Applicant relied on oral evidence and submissions and:

● The Applicant’s witness statement (Exhibit W1)

● Written submissions lodged on 19 May 2015

● Written submissions in reply lodged on 5 June 2015.

[11] The Respondent relied on oral evidence and submissions and:

● The witness statement of the Respondent’s Managing Director, Mr Richard Layton (Exhibit R2).

● The witness statement of the Respondent’s National Service Manager, Mr Costa Rokkas (Exhibit R3).

● Written submissions lodged on 18 May 2015.

● Written submission lodged in support of the jurisdictional objection lodged on 18 May 2015.

Background

[12] The Applicant was employed as a service technician in the Respondent’s business which was to supply and install packaging equipment. The equipment was also serviced, if necessary at the client’s site. The Respondent had a workshop at Kuringai in northern Sydney.

[13] The Applicant had commenced in the role of Junior Service Technician but at the time of the alleged dismissal, he worked primarily on servicing jobs at the client’s site. His business card described his role as “External Servicing”.

[14] In his F2 form the Applicant set out in some detail, the events leading to, what he submits was, his constructive dismissal. Whether the Applicant was dismissed is the question to be decided.

[15] The major points in the Applicant’s initial claim appear to be:

● The Applicant had a good work record and relationship with the Respondent’s managers until the end of 2014.

● He took extended sick leave from early November 2014. He says that this was due to his workload and that the Respondent did not exhibit sufficient concern or take his condition seriously.

● Following his return to work on 5 January 2015, the Applicant was required to work in the workshop.

● Mr Layton expressed concerns about the performance of the service team in mid-January to the Applicant and the two other service technicians.

● At a meeting on 30 January, the Applicant was advised that he would be allocated to workshop work and would perform external work only training and assisting the other service technicians. He was also advised that an additional technician would commence in early February to take over the Applicant’s former external role. The Applicant understood that this change was permanent and would impact on his remuneration. The Applicant took this to be a demotion, given that the level of external work had been related to seniority within the company.

● The Applicant complains of lack of consultation with respect to the change in his role in accordance with his award rights.

● The Applicant received $3,791.66 gross per month as base salary. He was concerned that his car allowance ($1,600 net per month), fuel card, E-tag and sales bonuses ($1,300 per month on average) would be imperilled by the change.

● The Applicant was concerned about some health and safety issues and the hostile behaviour of Mr Rokkas towards him.

[16] On 4 February Priority Business Lawyers, on behalf of the Applicant, wrote to the Respondent requesting his reinstatement to an external service technician role and confirmation that he would not incur any monetary loss. In the meantime the Applicant refused to attend work.

[17] Mr Layton responded on 6 February defending the Respondent’s decision.

[18] On 13 February the Applicant’s solicitor wrote to the Respondent tendering his resignation. It stated that the resignation had been forced on him by the Respondent’s conduct so that he had no alternative but to resign. It was untenable for him to return to work.

[19] The Applicant submits that this was a constructive dismissal because the Respondent took deliberate action to disadvantage the Applicant which had the result of bringing the employment to an end. That action effectively forced the Applicant to resign.

[20] The Respondent submits that the Applicant was not dismissed. Rather, he resigned his employment on 13 February 2015 by the letter from his solicitor.

[21] In its F3 form the Respondent further submits:

● There were two service technicians in New South Wales, including the applicant. This led to a practice of “covering for each other”.

● The Respondent and its staff took a caring approach to the Applicant during his illness.

● The decision to employ an additional service technician in December 2014, making eight employees nationally, was because of increased customer demand. The Respondent had no obligation to consult the Applicant about this change.

● The transfer of the Applicant to warehouse duties in early January 2015 was to cover the bereavement leave of an employee.

● At the meeting in mid-January, Mr Layton had foreshadowed changes in the service department.

● At the meeting on 30 January, the Applicant was advised of his training role of the new service technician for up to six months. He would continue his former duties. There was no suggestion of changes in bonus, allowances, hours of work or other conditions. The Applicant did not raise his concerns about possible reductions in conditions with the Respondent.

● The Applicant left the Respondent’s workshop early afternoon on 4 February because he had an “appointment” to go to. His solicitor’s first letter was sent later that day. The Applicant did not return to his job after that.

● Mr Layton made it clear in his email response of 6 February that the Applicant’s remuneration and hours of work “remain untouched”. He also raised a number of performance issues.

● The Respondent denies the Applicant was demoted or punished for his absence due to illness.

● The Respondent did not attempt to access the Dispute Settlement Procedure under the Manufacturing and Associated Industries and Occupations Award 2010 (the Manufacturing Award). In addition, the Applicant did not give notice of four weeks as required by the Award. Because of this and the fact that the Applicant was paid for the period after he left the job, the Respondent says that there has been an overpayment of over $6,000.

● The Applicant’s employment history was not unblemished. He had received a previous written warning and had been counselled on a number of occasions.

● The Applicant’s resignation letter is some six pages, drafted and signed by his solicitors, Priority Business Lawyers, It recites, in detail, the Applicant’s version of the facts and the legal arguments as to why this was an unfair dismissal. It was a deliberate strategy, not some action the Applicant was forced into “in the heat of the moment”.

Protection from Unfair Dismissal

[22] An order for reinstatement or compensation may only be issued where I am satisfied the applicant was protected from unfair dismissal at the time of the dismissal.

[23] Section 382 sets out the circumstances that must exist for the applicant to be protected from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i) a modern award covers the person;

(ii) an enterprise agreement applies to the person in relation to the employment;

(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”

[24] There is no dispute and I am satisfied that the Applicant had completed the minimum employment period, and is below the high income threshold. His salary was $45,500 plus additional payments as stated in [15] above. It was agreed that he was employed under the Manufacturing Award. I am therefore satisfied that the Applicant was protected from unfair dismissal.

Was the dismissal unfair?

[25] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Was the Applicant dismissed?

[26] A person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for purposes of Part 3–2 of the Act. Section 386 of the Act provides that:

“386 Meaning of dismissed

(1) 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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”

[27] There is no question that s.385 sub-sections (c) and (d) do not apply. The Respondent had 40 employees. However, the question of whether the Applicant was dismissed pursuant to s.386 is obviously in dispute. The Respondent says that the Applicant resigned and that it was not a constructive dismissal. The Respondent says that, in any event, their actions were not harsh, unjust, or unreasonable.

Harsh, Unjust or Unreasonable

[28] I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable. The criteria I must take into account when assessing whether the dismissal was harsh, unjust or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person-whether the person had been warned about that unsatisfactory performance before the dismissal; and

(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.”

Approach of the Commission

[29] The ambit of the conduct which may fall within the phrase ‘harsh, unjust or unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.”

[30] Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998) Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is relevant and hence I am to have regard to it determining whether the termination was harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be taken into account.”

The Parties’ Main Arguments

[31] In addition to the submissions attached to the application which have already been summarised, the Applicant submits the dismissal was harsh, unjust and unreasonable because:

● He was forced to resign by the Respondent’s course of conduct.

● The main action by the Respondent which, it was submitted, forced the resignation was the “effective demotion” of the Applicant to an internal role at the 30 January meeting.

● The Respondent did not answer the demands by the Applicant’s solicitor in its 4 February letter.

● The Applicant asserts that he was not told there would be a time limit on the charges or that his remuneration would be unchanged. In the circumstances, he was entitled to assume the change was permanent and his entitlements would be reduced.

● “Internal” technician work was a demotion because it was less complex and usually performed by more junior employees.

● The Applicant was discriminated against because he had taken extended sick leave.

● The Applicant was denied procedural fairness because he was not given notice or consulted in accordance with the Manufacturing Award. No advice in writing was provided about the changes. He was specifically told not to raise issues with Mr Layton.

● The Respondent had ample opportunity to advise the Applicant or his solicitors that there would be no financial or other disadvantage as a result of the change but failed to do so.

● In his witness statement (Exhibit W1) the Applicant alleges that there were a number of underpayments (paragraphs 20 – 25) during his employment but there is no suggestion these contributed to his resignation/dismissal.

● The Applicant seeks the maximum compensation.

[32] The Respondent submits that the Applicant was not dismissed. There was no need to consult the Applicant with respect to the employment of an additional employee or with respect to the Applicant’s role because it was not a significant change. There was no demotion and it was made clear that the change was a temporary one. Even if the Commission finds there was a constructive dismissal, any compensation awarded should be minimal.

[33] After analysing some of the relevant cases the Respondent submits:

● The temporary change in the Respondent’s work did not directly or consequently result in his termination.

● The Respondent’s actions were not intended to end the Applicant’s employment. In fact it wanted him to play an integral part into the future.

● The cessation of employment was not the probable result because there was no reduction in remuneration or hours. The Respondent continued to act as if the contract of employment was on foot.

[34] Mr Layton (Exhibit R2) says that the Applicant developed a preference for internal workshop-based work during 2014. He also says that he had a number of discussions with the Applicant during January 2015 and the Applicant did not raise any concerns with the changes of his role. He should have known that his remuneration would not be affected because the bonus was worked out on the totality of team effort. Finally, the matter could have been resolved if the Applicant had raised any concerns he had rather than sending a solicitor’s letter and absenting himself from work.

[35] Mr Rokkas gave evidence (Exhibit R3) that the Applicant, in 2014, spent 20% – 30% of his time in the workshop. He also says that at the 30 January meeting, he told the Applicant that the training/internal role would be his focus for about six months. The Applicant did not raise any concerns about the role at, or after, the meeting.

The Commission’s Approach to Determining whether a Dismissal has occurred

[36] Cases such as Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200 (Mohazab) and O’Meara v Stanley Works Pty Ltd[2006] AIRC 496 (O’Meara) deal with s.386(1)(a). A termination is at the employer’s initiative when its action “directly and consequentially” results in the termination of employment, and the employee would have still been employed but for that action. An analysis of all the circumstances is required. The Full Bench states in O’Meara:

“[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some 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. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”

[37] Where an Applicant claims they were forced to resign they must show they had no real choice, Mohazab. The onus is on the employee to prove that they did not resign voluntarily and that the employer forced them to do it, Australian Hearing v Peary (2009) 185 IR 359. An employer is generally able to treat a clear and unambiguous resignation as such, Ngo v Link Printing Pty Ltd (1999) 94 IR 375.

[38] Deputy President Wells in Dawes v Presbyterian Care [2014] FWC 4067 provides the following useful summaries of the approach to be taken:

“[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of now s.386(1) that:

“Clause 386 – Meaning of Dismissed

1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person’s employment with his or her employer was terminated on the employer’s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:

● where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

● where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.”

. . .

[59] In order for there to be access to a remedy to unfair dismissal, the employee must have been dismissed in accordance with s.386 of the Act. Accordingly, I am required to determine on the evidence whether Ms Dawes was dismissed at the initiative of PCT or whether she was forced to resign due to the conduct engaged in by PCT.

[60] In order to amount to a termination at the initiative of the employer the applicant must have been forced to resign by a course of conduct engaged in by PCT.”

[39] In a recent decision Osborne v B & P Prestige Vehicles Pty Ltd T/A Geelong Chrysler Jeep[2015] FWC 3088 Commissioner Wilson provides the following useful summary of the matters the Commission should take into account in determining whether there has been a constructive dismissal:

“[59] I take the following from my analysis of the relevant authorities;

• the employer’s conduct must be weighed objectively;



• forced resignation may result from some action on the part of the employer intended to bring the employment to an end or an action which would, on any reasonable view, probably have that effect;



• an employer may be found to have constructively dismissed an employee notwithstanding that it did not engage in the relevant conduct with the subjective intention of forcing the employee to resign;



• while an “important feature” of constructive dismissal, it is not sufficient that “the act of the employer results directly or consequentially in the termination of employment and the employment relationship is not voluntarily left by the employee”

[40] Finally, I note that the Applicant particularly relied on the Full Bench decision in Peary. The Full Bench upheld the decision at first instance that there had been a constructive dismissal because the employer had put the employee in a lesser role for an indeterminate period as a punishment for a legitimate action.

[41] The Full Bench said:

“The grounds of appeal

[29] The first ground of appeal is that the Commissioner did not give proper effect to s.642(4) of the Act. It was submitted that the use of the word “forced” indicates a legislative intention that in cases of resignation there will be no termination at the initiative of the employer unless the resignation was an intended consequence of conduct or a course of conduct engaged in by the employer. On that basis, the Commissioner’s finding that the resignation resulted from the employer’s conduct is not sufficient to attract the operation of the section. The element of intention is missing. It was further submitted that there was no evidence of such an intention in any event.

[30] We cannot accept this construction of the section. The section specifies the matters that an employee who has resigned must prove in order to displace the legal effect of the resignation. The employee must prove that the employer engaged in conduct or a course of conduct which forced the employee to resign. There is no warrant for requiring the employee to prove an additional matter, that the employer intended to force the employee to resign. The plain words of the section deny such a requirement. Furthermore, the section is not directed at the state of mind of the employer, but at the state of mind of the employee. It is particularly difficult for an employee to prove an employer’s intention. In that respect it is relevant to note that where the Act imposes a requirement related to the intention or motive of the employer a reverse onus is usually applied.
. . .
[39] We emphasise that the question of whether a termination is at the initiative of the employer is not the same question as whether the termination of employment is unfair. If the employer’s conduct forces an employee to resign it does not automatically follow that the termination was harsh, unjust or unreasonable. In deciding whether a forced termination is harsh, unjust or unreasonable all of the circumstances must be taken into account including the conduct of the employer, the conduct of the employee and the reasons for the conduct in each case”

Conclusion

[42] I have carefully considered all of the evidence, including the extensive cross-examination of the Applicant and the Respondent’s witnesses Mr Layton and Mr Rokkas. Based on the analysis of the Commission’s approach in these matters, summarised above, I am not satisfied that the Applicant’s resignation was a constructive dismissal.

[43] I found the Applicant and Mr Layton to be open and reliable witnesses. Mr Rokkas appeared to reconstruct his evidence to make the 30 January meeting to be rather more formal than it was. It is not surprising that the Applicant was left in some uncertainty following its conclusion.

[44] The Applicant made a number of assumptions as to what might happen and did not properly and fully follow up his concerns. The following exchange is illustrative of this point.

“[251] Yes.  Mr Rokkas never specifically told you that the new recruit was to perform your position, did he?---Yes, he told me he would be the external service technician.

But he didn't say, "He's going to perform your position"?---Not in those words.

No.  You would agree with me that there can be more than one service technician who is primarily on the road?---It hadn't been the case, but yes.

Yes, the aim was to get Mr Fenton on the road and you assisting with that?---He'd been coming out to work with me from time to time.

Yes?---Yes.

As part of this progression?---Only.  I suppose so, yes.

Yes.  Mr Dumpleton I put it to you that you assumed that the new job - that the new technician was to perform your position?---I'd been moved into another role, so yes.

You would also agree with me that Mr Rokkas never told you he was demoting you to a junior position?---No.

That was another assumption that you made?---As I'd been moved to another role, my original role.

Yes.  You would also agree that Mr Rokkas did not tell you that your remuneration would be reduced as a result of the change?---There was no specification either way.

But he never told you, did he, that you would be reduced?---No.

So that was another assumption that you made?---Yes.

Yes.  You agree that you never queried with Mr Rokkas during the meeting or in the one on one meeting that you had afterwards why you had been demoted?---He told me why.

He didn't use the word demoted?---He didn't use the word demoted, no.

No.  You never raised anything with him about your apparent demotion, did you?---No.

Why not?---Because normally I would go to the general manager with that.

[267] Okay, and why didn't you go to the general manager?---Because Costa had specifically told me not to - Mr Rokkas, sorry.”

[45] The Applicant’s last answer above provides his defence to the argument that he could have done more to raise his concerns, short of resignation. Mr Rokkas’ denial that he told the Applicant not to go to Mr Layton was not convincing. Although there is a conflict about the words used, I accept that it is likely Mr Rokkas was dismissive of the Applicant’s concerns.

[46] Mr Layton’s management of the employment relationship left something to be desired. It is apparent that the Respondent’s compliance with the Award in respect of his remuneration is doubtful. There was no formal advice in writing to the Applicant about the change to his role. He left the discussions with the Applicant to Mr Rokkas when he should have directly engaged himself.

[47] I accept that there was no demotion of the Applicant that involved a reduction in wages and conditions. The Applicant made assumptions regarding the likelihood of this, but they are not borne out by the evidence. The change of the nature of the Applicant’s role is more difficult. There was undoubtedly a proposed change in the focus of the role between external and internal work. There was an increased training role. The Respondent says that the temporary nature of this was made clear. The Applicant denies this. In any event, in my view, the Respondent did not adequately comply with its consultation obligations nor did it communicate with the applicant to the extent it could have done with respect to the change.

[48] On balance, I do not find that there was an effective demotion. Nor is there evidence that the change in the Applicant’s role was some form of punishment for his absence at the end of 2014. Indeed, the evidence was that Mr Layton, in particular, was quite solicitous to the Applicant.

[49] The evidence was that the classification and job description of the Applicant was quite vague. I have already commented on the administrative failings of the Respondent. However, some of this is explicable given the relatively small nature of the operation. The Applicant’s job was as a “service technician”. His role had developed to have a primary, but not sole, focus on external work. There is no doubt, in my view, that the change introduced by the Respondent came within the reasonable requirements of the Applicant’s job. Good management practice would have involved greater consultation and explanation but this does not mean that it was a demotion. I should add that there was no requirement to consult the Applicant about the employment of the additional service technician.

[50] I do not doubt that the Applicant had concerns about what was proposed by the Respondent. Mr Rokkas, at the very least, did not fully explain what was proposed or what the Applicant could do about it. Nevertheless, the Applicant could have raised the matter with Mr Layton and accessed the disputes procedure. The evidence was that he had not been afraid to raise issues in the past.

[51] The Applicant decided to get legal advice and send the letter of 4 February. Whether this was wise is debatable. It was clearly designed to set up a constructive dismissal. The crucial event was Mr Layton’s response of 6 February. It was not, apparently, drafted on the basis of legal advice and did not specifically address the Applicant’s demands. However, it did make clear that the change was “for a period of approximately six months” and “his hours of employment and remuneration remain untouched”. In my view, the appropriate response of the Applicant and his solicitor would have been to seek discussion, to confirm the Respondent’s intention and clarify any outstanding issues. If agreement had not then been reached an application could have been made to the Commission. Rather the letter of resignation was sent on 13 February.

[52] I do not accept that the Applicant was forced by the Respondent’s course of conduct to send the letter. This is particularly so given that he had legal advice.

[53] This is not a case of an Applicant resigning in the heat of the moment or because they feel pressured and have no available advice as to alternatives. Whatever the Applicant believed before Mr Layton’s 6 February response, it should have been clear, once the Applicant received it, that the Respondent was saying he had not been demoted and the change was temporary. The Applicant had choices other than to resign.

[54] The change in the Respondent’s work was temporary and not a demotion. Accordingly, it did not directly or consequently result in his termination. The cessation of employment was not the intended or probable result of the Respondent’s actions. The Applicant would have still been employed as a Service Technician except he chose to resign.

[55] This case is to be distinguished from Peary because the change in the employee’s duties was not a demotion, was not permanent and was not undertaken as a punishment.

Conclusion

[56] I therefore find that the Applicant was not dismissed in accordance with s.386. He therefore cannot be unfairly dismissed in accordance with s.385.

[57] The application for a remedy from unfair dismissal is therefore dismissed. An order [PR570520] in these terms will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

J. Walker, solicitor for the Applicant;

M. Rodgers, solicitor for the Respondent.

Hearing details:

2015

June 16 (Telephone conference).

Newcastle:

June 23.

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