Mendicino v Tour-Dex Pty Ltd - [2010] FWA 9114

[2010] FWA 9114

FAIR WORK AUSTRALIA

DECISION

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

Mr David Mendicino
v
Tour-Dex Pty Ltd
(U2010/13090)

SENIOR DEPUTY PRESIDENT RICHARDS

BRISBANE, 1 DECEMBER 2010

Summary: whether termination at the initiative of the employer - resignation - whether the work environment was so repugnant as to leave the employee with no reasonable choice but to resign - objective assessment of nature of employment relationship at the time - application dismissed.

[1] On 8 October 2010, Mr David Mendicino (“the Applicant”) filed an application under s.394 of the Fair Work Act 2009 (“the Act”) seeking a remedy in relation to his alleged unfair dismissal.

[2] The employer was Tour-Dex Pty Ltd (“the Respondent”), which appears to be a small business employer for the purposes of s.23 of the Act.

[3] The substantive matter was not proceeded with for reason that the Respondent raised a number of jurisdictional objections.

[4] A hearing was conducted in relation to the application on Monday, 15 November 2010 and Wednesday, 17 November 2010. The following decision was given in transcript and is now formally put in writing for the parties’ benefit. The text of that decision, which follows, is subject to some limited redaction only.

JURISDICTIONAL OBJECTION

[5] The jurisdictional objection first dealt with concerns a claim that the Applicant in this matter was not dismissed at the initiative of the employer for the purposes of section 386(b) (1)(a) of the Act but resigned his employment at his own initiative. Section 386 of the Act reads as follows:

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

(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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FWA 9114
Decision Date: 1 DECEMBER 2010

CaseChat Overview and Summary

Mendicino v Tour-Dex Pty Ltd concerned a dispute between the applicant, Mendicino, and the respondent, Tour-Dex Pty Ltd. The central issue was whether Mendicino's resignation was effectively a termination of employment by the respondent, or whether it was a genuine resignation. The case was heard in the Federal Circuit and Family Court of Australia.

The primary legal issue was whether the work environment created by Tour-Dex Pty Ltd was so intolerable that it left Mendicino with no reasonable alternative but to resign. This required an objective assessment of the nature of the employment relationship at the relevant time. The court had to determine whether the employer's actions amounted to a termination of employment that would entitle Mendicino to unfair dismissal remedies under the Fair Work Act 2009. The court examined the circumstances leading up to the resignation and the employer's conduct to ascertain whether it was reasonable for Mendicino to feel compelled to resign.

The court found that the work environment, while challenging, did not reach the level of repugnance that would compel a reasonable person in Mendicino's position to resign. The employer's actions, though adverse, did not amount to an effective termination of the employment relationship. The court concluded that Mendicino had genuinely resigned, and therefore, the application for unfair dismissal remedies was dismissed. The court's decision was based on an objective assessment of the circumstances and the nature of the employment relationship at the time of the resignation.

Orders