Mendicino v Tour-Dex Pty Ltd
[2010] FWA 9114
•1 DECEMBER 2010
[2010] FWA 9114 |
|
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
(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.
[6] Consequently, it is claimed that Fair Work Australia does not have jurisdiction to deal with the application under section 394 of the Act, which is an application seeking relief in relation to an alleged unfair dismissal.
[7] The jurisdictional objection that arises from the operation of s.386(1)(b) of the Act states that a person has been dismissed if the person has resigned from his or her employment but was forced to do so because of the course of conduct engaged in by his or her employer. The critical verb in section 386(1)(b) of the Act is "forced". That is, the Act requires that a resignation in order to be a resignation at the initiative of the employer must be a resignation that was forced upon the Applicant by the course of conduct of the employee.
[8] The verb that is used in s.386(1)(b) of the Act suggests that the employer's course of conduct must have forced the employee to have resigned their employment. In my view, the Full Bench in O’Meara (PR973462) 1 (“O’Meara”) remains the salient authority, despite it being decided under the legislation as it was prior to the Workplace Relations Act 1996 being amended as per the Workplace Relations Amendment (Work Choices) Bill 2005. That is the Full Bench judgment in O'Meara reflected on legislation prior to the introduction of s.642(4) of the Workplace Relations Act 1996 in March 2006 and therefore before the current legislative provision under s.386(1)(b) of the Act. Although there are some differences between section 624(2) of the Workplace Relations Act 1996 and the Act, these differences do not displace the principal reasoning of the Full Bench in O'Meara.
[9] At paragraph 23 in O'Meara the Full Bench set out its views as to the meaning of a constructive dismissal. The elemental principle the Full Bench posed as being central to determining whether a resignation was a constructive dismissal, was whether the employer's conduct intended or had the probable effect or result of bringing the employment of the relevant employee to an end, such that the employee effectively had no choice but to resign.
[10] I have attempted to reinforce this authority in the minds of the parties over the course of these proceedings. Whether or not an employee has no choice sometimes manifests itself in quite apparent circumstances. These might include where an employer may refuse to provide work or to provide payment for work. It might also include circumstances in which an employer may threaten an employee in some particularly serious terms or otherwise harass or victimise an employee. In such circumstances the work environment would be found to have been so repugnant or oppressive that it should not have been reasonably endured by the employee. There will be other circumstances.
[11] In any event, the principles enunciated by the Full Bench require the resolution of a number of underlying questions which will structure this decision.
[12] The first question requires a determination as to whether or not there is sufficient evidence that there was indeed or in fact a resignation and that such a resignation took place and occurred and so forth.
[13] The second question to be determined is to establish objectively the factual matrix that contextualised the resignation. That is, what were the surrounding circumstances as objectively evaluated and constructed, not as subjectively believed by the relevant parties.
[14] The third question concerns whether that factual context as found to exist can support an inference or a conclusion that the employee was forced to resign his or her employment and have no other reasonable choice other than to do so.
CONSIDERATION
[15] I turn to the first question that needs to be determined: whether was there a resignation.
[16] The evidence demonstrates that the Applicant resigned his employment on 15 September 2010 in email correspondence to the employer. The text of the formal letter of resignation was written in considered, cautious and respectful terms, and did not in its own right make any criticism of the employer. The letter of resignation itself reads as follows:
Dear Charles
I am writing to inform you that I am resigning from my position as Manager for Tourdex and Barron River Storage due to reasons of a personal nature.
I am providing four weeks notice.
My last working day will be Wednesday 13 October 2010.
Thank you for your guidance and support and I wish you and your company great success in the future.
[17] The course of conduct engaged in by the employer comprised the following circumstances.
[18] Essentially, there were two occasions in which the Applicant and the Respondent fell into dispute. One of these was in August 2010 and the other in September 2010.
[19] I will refer to the August 2010 dispute as “the August absence”. In August 2010 the Applicant was absent from work for approximately one week for reason that he was recovering from the flu.
[20] There are claims by the Applicant that the employer stated that he was too important to be taking leave for that period of time. That was a point that was challenged by the Respondent as being an irresponsible claim.
[21] The September incident or the “September absence” concerned a one day absence. The Applicant notified his pending absence from work on 14 September 2010. The Applicant contends that the Respondent attempted to dissuade him from taking leave as such and there followed a heated exchange. The Respondent, who was travelling at the time, contends that he asked the Applicant to remain at the site until a driver was available, but did not otherwise refuse leave.
[22] The Applicant conceded that he used expletives directed at the Respondent during that exchange. There is no evidence suggested that the Respondent was himself abusive of the Applicant in that exchange, and the Respondent for his purposes clearly contended that he was not.
[23] The Applicant did not resign at this immediate time. What appears to have been a catalyst for the resignation was the prior conduct in hand with the subsequent conduct of the employer. The subsequent conduct occurred the following day on 15 September 2010 and consisted of the following.
[24] The Respondent made an accusation that the Applicant had not returned a lawn mower that had been borrowed from the Respondent for the Applicant's private purposes. I note that the lawn mower had been in the possession of the Applicant for some three weeks and that the Applicant had undertaken on 23 August 2010 or thereabouts to return the mower promptly. The Applicant complains that he could not do so because he had injured his hand, but he did concede he could have utilised another person to assist him to return the lawn mower at an earlier time.
[25] It also appears that the return of the lawn mower was a pressing matter for the Respondent given its needs to maintain the grounds of its facilities. What appears to be particularly significant in relation to the correspondence concerning the failure to return the lawn mower was that the Respondent’s email of 15 September which was headed, “Staff dishonesty”.
[26] I think it is this specific reference to the term “dishonesty” that excited the Applicant's concerns. The text of the email, however, when read objectively is more benign and it does not suggest or make reference to any deceit as such, but rather indicates that the Applicant had said one thing on 23 August 2010 (about his intention to return the mower promptly) and had done another (that is, he had failed to return the mower by 15 September 2010).
[27] Another incident occurred in conjunction with the first incident and that was that the Respondent also indicated its concern to the Applicant concerning his absence on sick leave in August.
[28] At that time the Respondent required the Applicant to be accountable for the production of medical certificates for his week long absence in late August 2010. That is by 15 September 2010 the Applicant had yet to supply medical certificates for his absence which had concluded on 23 August 2010.
[29] The email that was sent to the Applicant about the overdue medical certificate(s) questioned the possible genuineness of the Applicant's claim to have been sick. But given the three week delay in providing the medical certificate and that there had been past deficiencies in this same regard, the Applicant should have been able to properly contextualise his employer's concerns in this regard.
[30] In any event the Applicant, it appears, provided the medical certificate later that same day to the Respondent's accountant, if not to his directly to Mr Liew, who had raised the issue with him.
[31] There were other issues that had a bearing on the employment relationship at this time.
[32] The Applicant claims he was also aggressively or inappropriately performance managed by the Respondent, and that he was performance managed in a way that was demeaning insofar as there was performance management in front of other employees or at least one other employee or co-worker.
[33] The Applicant claimed he received “up to 20 emails a day” emails each day questioning his conduct and activities. None of this was evidenced. Mr Liew for the Respondent contended he sent him a very small number of emails.
[34] The Applicant also claims that the Respondent made seemingly invidious comparisons between himself and a predecessor as manager in terms of the predecessor's ability and skills to create new business. 2
[35] The Respondent claims there was little practical alternative to pointing out the weaknesses or deficiencies in the performance of the Applicant other than by indicating in direct terms the weaknesses and deficiencies that were detracting from his value to the business.
[36] The Respondent claims that the performance management was necessary and warranted, it may have been direct and unambiguous but it was not carried out in an intimidating or aggressive manner, or in a confrontational manner.
[37] There was a document handed up in these proceedings 3 which was an email of Mr Liew's in relation to performance management. That document is an example of the way in which performance management was carried out by the Respondent (that is, Mr Charles Liew). The document was headed “Dave, has Matthew paid yet?” and reads relevantly as follows:
No, not paid yet, but...
U told me you were chasing a particular Friday - no feedback from you.
Dave, you must concentrate and organise better.
I seem to have so many loose ends that u r supposed to tie up, but I have to keep reminding you.
Does your mobile phone have a lot of private calls into you?
If so I have to give you another phone and your private one must stay at home. I am very serious about the phone cos I have heard it ring countless times that is not Tourdex calls.
Your position does not have spare time to talk anything else but Dex.
Also, if Dennis cant help, can u look at advertising for very part time worker for both in the shop and also make sales calls!
Cant understand why we don’t have new self created clients in 8 months!! (sic)
[38] When objectively considered, the tone of the email is mildly demanding about performance expectations. Whilst its receipt would certainly not have been comforting to the Applicant, it is not possible to construe the correspondence as being elementally threatening or intimidating.
[39] Another concern posed by the Applicant, which he says has bearing on his decision to resign his employment, was that the Applicant claimed that references had been made to him that there was a likelihood that he would not be paid.
[40] Upon questioning by myself in cross-examination the Applicant conceded he was never not paid, but he did recall his pay being delayed on two occasions over the course of his employment. 4
[41] There seems to be a more generic concern raised by the Applicant in this matter that the Respondent had made reference to his private life and that this in some manner had also undermined the employment relationship. This, I should add, was a matter that was strongly contested by the Respondent. In any event, the claims in relation to this matter generally were not well evidenced.
[42] The matters discussed above largely constitute the suite of circumstances that contextualise the Applicant's decision to resign his employment.
[43] I am now required to determine whether the circumstances that I have objectively adduced demonstrate a course of conduct engaged in by the Respondent that left the Applicant with no choice other than to resign his employment, and by so doing forced the Applicant to resign his employment for the purposes of section 386(1)(b) of the Act.
[44] It does not appear to me that the Respondent was engaged in a course of intimidatory conduct or else was in some manner systematically directed towards bringing about the cessation of the employment relationship.
[45] The Respondent contended it made no commercial sense for him to do so or to bring about the resignation of the Applicant. This was because the Applicant's resignation caused significant disruption to the Respondent’s business and came at a time when Mr Liew proposed to take holidays and would not therefore afford the business any certainty in its operations in its absence.
[46] This may be the case, but intentionality is not a determining issue in relation to this jurisdictional issue before me. Clearly a constructive dismissal is not evidenced merely by discovering intention on the part of an employer to construct a dismissal on the part of the employee. Though in some cases of constructive dismissal this purpose and intention might well be in evidence.
[47] What is important generally is whether the conduct or the conduct engaged in by the employer might have the effect of bringing the employment relationship to an end. This was in line with the reasoning of the judgment of the Full Bench in O'Meara.
[48] That said, I do not believe any of the wider circumstances (as evidenced) that contextualise the resignation of 15 September 2010 demonstrate a sufficiently repugnant or oppressive environment (resulting from the Respondent’s conduct) that forced the Applicant to resign his employment or otherwise left the Applicant with no choice but to resign his employment.
[49] The period of time over which the working environment is said to have become oppressive is not great, a little over a month.
[50] Some of the Respondent's queries about the conduct of the Applicant were well placed. It was legitimate to inquire into the failure to provide medical certificates for a week long absence. It had been three weeks or so since the Applicant's absence and no medical certificate had been provided.
[51] There was little wonder the matter was agitated by the Respondent and that it was a source of some concern and suspicion. As I have said, the tone of the relevant correspondence may have been improved (in regards to the heading of the email). But the expression of concern by the Respondent was not extreme or malicious.
[52] In all, the circumstances of this matter are not sufficient to generate evidence of such an oppressive or repugnant environment as to leave the Applicant with no reasonable choice other than to resign his employment.
[53] There is also little else that I see in the evidence relating to the approach to performance management that made it necessary for the Applicant to resign his employment.
[54] The approaches in this regard may have been disconcerting and discomforting. Performance management processes can be often be so. But on the basis of the evidence before me, the circumstances were not sufficient to force the Applicant to resign his employment because reasonably he had no other choice.
[55] My thinking in this regard is in a similar vein to Mr Liew’s queries as directed to the Applicant in relation to medical certificates and in relation to the return of the lawn mower. I will turn to the issue of the lawn mower now.
[56] The Respondent also to my mind had a reasonable basis on which to expect the return of the lawn mower the Applicant had borrowed some time previously. The Applicant had informed the Respondent on 23 August it would be returned, but three weeks later the mower had not been returned despite the requirements for the business at that time to maintain its own grounds.
[57] The Applicant for his part contended there were difficulties in relation to this matter arising from his physical constraints owing to his hand injury, although he did concede under cross-examination to myself that there were other options by which he could have returned the mower promptly.
[58] None of these, however, are accusations of such a character so as to cause the employee to resign their employment as a last resort. The tone of the communication can always be improved and some of the headings used in the communications would have been disconcerting for the Applicant. But still it is not possible to construe the tone or context or text of the various correspondence as being sufficient to force the Applicant to resign his employment.
[59] Equally the Applicant's concerns about the security of his pay in return for his services as an employee lack substance. There were delays at two points in the past (which he appears to have tolerated), but he was not threatened to not be paid in any substantive way. These are not circumstances which would have caused the Applicant reasonably to have thought he had no alternative but to resign his employment.
[60] Equally so the claims about the Respondent's interest in his private life, which were weakly evidenced as it was, do not give employees cause to find that the Applicant had reasonable cause to resign his employment because he had no effective choice other than to do so.
[61] The Applicant and the Respondent had an exchange on 14 September about what was expected of the manager in relation to his presence at work. The altercation as I have said earlier included expletives on the Applicant's part, not the Respondent's part.
[62] Whilst I accept that this verbal exchange had some measure of acrimony in it, I do not consider that it was of such a character that the Applicant's resignation must inexorably have followed. Indeed it does not appear that the Applicant at least in relation to this particular altercation on the basis of that altercation alone believed that his resignation was warranted.
[63] I make the further point that the Applicant's letter of termination, dated 15 September 2010, was deliberately couched, on the Applicant's own evidence, to protect his own reputation and ensure he obtained his entitlements. He articulated his own period of (4 weeks) notice.
[64] The Applicant cannot be said, therefore, to have resigned his employment in a moment of emotional intensity. The Applicant appears to have been acting quite rationally with a keen sense of his own interests. In addition, on his thinking at the time, the environment in which he had found himself did not seem to be so oppressive or repugnant so as to require him to extract himself with any immediacy.
[65] Whilst such observations are not determinative in their own right of there not having been a constructive dismissal, taken together with the wider circumstances they add to an assessment of the actual nature of the employment relationship on 15 September 2010, the date on which the Applicant resigned his employment.
CONCLUSION
[66] In my view the employment relationship between the Applicant and the Respondent was one that I would characterise as being under some deal of stress at 15 September 2010. But there is no objective basis for me to conclude that the employment relationship had reached such a nadir, or such a low point, or was demonstrative of such an oppressive or repugnant environment that the Respondent had no other choice, no effective choice other than to resign his employment.
[67] Again, I make the point that the Applicant conceded that up until roughly or approximately 19 August that for the most part the Respondent had been a good employer.
[68] Therefore, the disruption to the employment relationship arose in a short period of time, and should not have displaced what had been a much longer period in which the employment relationship was stable and productive. 5
[69] Generally, while the Applicant and the Respondent were not enjoying a particularly cordial relationship between 19 August to 15 September, the evidence objectively assessed does not cause me to conclude that the Applicant was constructively dismissed in the way an employee who, for example, is refused payment for work or is in some other way encounters an objectively repugnant work environment.
[70] As a consequence of this finding, I find in turn that the Applicant was not dismissed at the initiative of the Respondent, but instead resigned his employment at his own volition.
[71] The application by the Applicant under section 394 of the Act itself is therefore also dismissed.
[72] Because of my finding in this regard, I have not had any requirement to investigate further jurisdictional objections claimed by the Respondent.
[73] An order [PR504013] dismissing the Application was issued on 17 November 2010.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr D Mendicino for himself
Mr C Liew and Mrs V Liew for the Respondent
Hearing details:
2010.
Cairns Supreme, District and Magistrates Court Complex.
November 15 and 17.
1 Appeal by O’Meara against certificate issued by Raffaelli C on 15 May 2006 – Re: Stanley Works P/L, Giudice J, Watson VP, Cribb C, 11 August 2006 [PR973462]
2 Transcript of Proceedings dated 15 November 2010 at PN 209
3 Exhibit R2
4 Transcript of Proceedings dated 15 November 2010 at PN 208
5 Transcript of Proceedings dated 15 November 2010 at PN 258
Printed by authority of the Commonwealth Government Printer
<Price code C, PR504383>
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