Michael Ross v Fall & Associates Pty Ltd

[2012] FWA 8111

Note: An appeal pursuant to s.604 (C2013/5679) was lodged against this decision - refer to Full Bench decision dated 19 September 2013 [[2013] FWCFB 6958] for result of appeal.

[2012] FWA 8111

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Michael Ross
v
Fall & Associates Pty Ltd
(U2012/6257)

COMMISSIONER RYAN MELBOURNE, 19 SEPTEMBER 2012

Termination of employment - whether termination was at the initiative of employer - valid reason.

[1] The Applicant filed an application for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act) against the Respondent on 20 March 2012. The Applicant resigned from his employment with the Respondent on 5 March 2012. The Applicant contended that he was forced to resign because of the conduct of the Respondent.

[2] At the hearing of this matter the Applicant represented himself assisted by his wife. The Respondent was represented by Mr Cox of counsel. I note that the Applicant had at an earlier stage of the proceedings been legally represented.

Background

[3] The Applicant was employed by the Respondent as a real estate consultant. The Applicant’s wife is also employed and continues to be employed by the Respondent and both the Applicant and his wife commenced with the Respondent in May 2003 and were the local representatives for the Respondent in the Tasman Peninsula area of Tasmania where they conducted the Respondents business from their own home. The Applicant was paid a retainer by the Respondent and in addition was paid commission on sales that were settled. The retainer was paid irrespective of any sales being made or settled but once a sale was settled the amount of commission paid to the Applicant was the value of the agreed commission less the amount of retainer already paid.

[4] Evidence in this matter was given by both the Applicant and his wife and by Mr Duncan, Ms Gee and Ms Francis who gave evidence in support of the Applicant. Evidence on behalf of the Respondent was given by Mr Dennis Fall and Mr Greg Fall. During the proceedings it became apparent to the Tribunal that there was one other person who could assist the Tribunal by giving evidence in this matter. The Tribunal requested Ms Dunn to give evidence and she was treated as the Tribunal’s witness, thus enabling both the Applicant and the Respondent to cross examine her.

[5] The conduct of the case by both the Applicant and the Respondent was limited to two issues: Was the resignation voluntary or forced? and: If the resignation was forced was the dismissal unfair? The decision in this matter only deals with these two issues and the Tribunal advised the parties that if the Tribunal determined both, that the resignation was forced and the dismissal was unfair, then the issue of remedy would be subject to a separate hearing.

Was the Applicant Dismissed Within the Meaning of s.386?

The Relevant Case Law

[6] As a full Bench of Fair Work Australia noted in Barkla v G4S Custodial Services Pty Ltd:

“[24] ....There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd 3 a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of 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. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

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. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer’s conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[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.” (References omitted)  1

[7] Whilst it may often be the case that the action of the employer which is complained of is constituted by a single act this is not always the case and a course of conduct over a period of time may be intended or have the probable result of bringing the employment relationship to an end.

[8] The Applicant’s outline of submissions filed on 29 May 2012 sought to rely on the decision of a Full Bench in Australian Hearing v Peary 2 which upheld a decision of Thatcher C in [2009] AIRC 152. I note the approach of Thatcher C, at first instance, in dealing with a matter where there was not a single action by the employer which was said to have forced the resignation of the employee:

“[197] Because this is not a case of a forced resignation that involves a single incident, I will, firstly, identify only critical conduct [The approach adopted by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 as referred to in O’Meara, op cit, at paragraph 19] on the part of Australian Hearing that might contribute to a forced resignation (some more than others) and, secondly, assess whether the sum total and seriousness of such conduct is sufficient to satisfy s.642(4).”

[9] A similar approach is adopted in this matter. However before identifying the critical conduct of the employer it is necessary to identify from the evidence in this matter the whole picture of events. Then from this whole picture the critical conduct of the employer can be extracted.

Overview

[10] On 30 May 2011 the Respondent emailed the Applicant and his wife and directed them to take all annual leave due to them commencing on the 6 June 2011. The emailed identified the Respondents concern over the lack of sales activity by the Applicant and his wife over a period of time. The email finished with the following:

“Before you go on leave please address your situation and come back to us say by Wednesday 1st June 2011 with any ideas you may have to improve your situation.”

[11] The email was not read by the Applicant and his wife until several days after it was received.

[12] On 30 May the Respondent had through telephone contact with the Applicant and his wife arranged for a meeting to take place on 2 June 2011 to discuss sales activity.

[13] On 31 May 2011 the Respondent ceased running a banner advertisement on the front page of “The Gazette” a local paper circulating in the Tasman Peninsula area. The Applicant and his wife emailed the Respondent on the morning of the 31 May 2011 expressing their concern over this move by the Respondent. Mr Greg Fall responded around lunch time the same day explaining the decision to cut advertising in 2 newspapers was for cost saving reasons. Mr Greg Sorrell concluded his email with the following:

“Happy to have a round table discussion with yourself and Sue... to map out going forward.”

[14] A meeting between the Applicant and the Respondent took place on 2 June 2011. At that meeting the issue of the Applicant and his wife being required to take all accrued annual leave was not discussed. The meeting discussed the issue of sales activity only. At that meeting the Applicant was given a number of documents for him to consider and inadvertently included amongst those documents was a print out of an email sent on 30 May 2011 by Mr Dennis Fall to a Mr Rollins and which included the email sent by the Respondent to the Applicant and his wife on 30 May 2011. It appears that the Applicant was not intended to see a copy of the email from Mr Dennis Fall to Mr Rollins.

[15] The email from Mr Dennis Fall to Mr Rollins was in the following terms:

“Helo Richard’

Refer email below,

Michael and Sue look after Tasman for us, they are not profitable,

We would like to put them on commission only when they return from holidays.

Please advise procedures we should follow and problems we may encounter.”

[16] On 3 June 2011 the Respondent emailed the Applicant and his wife recapping both the meeting on 2 June 2011 and a telephone discussion with the Applicant on 3 June 2011. The email advised that the Respondent:

“will be happy to hear from you with any other ideas with regard to what you can do to increase your listings and sales. As indicated we are looking for a pro-active win win situation.

Greg and I will be happy to meet with you both some time next week, please call and make a suitable time.”

[17] On 6 June 2011 the Applicant and his wife emailed the Respondent advising the Respondent that the email of 30 May 2011 directing the Applicant and his wife to take their annual leave had only been read after the meeting on 2 June 2011 and objecting to the direction to take annual leave on the basis that it would “affect our work detrimentally in many ways”.

[18] The Respondent responded by email on the afternoon of 6 June 2011 and advised that:

“We should meet again before the end of the week... before you take leave.

Please advise a convenient time to meet.”

[19] The meeting took place on 10 June 2011 at the Respondent’s office and discussed the issue of the Respondent requiring the Applicant and his wife to take all accrued annual leave.

[20] The Applicant and his wife commenced their annual leave on 13 June 2011 but continued to perform some work during the period of enforced leave.

[21] A further meeting between the Respondent and the Applicant took place on 4 July 2011 after the Applicant and his wife had commenced their enforced leave. The Applicant was accompanied by his advocate and representative Ms Dunn. The Respondent conceded at this meeting that its direction to the Applicant and his wife on 30 May 2011 to take all of their accrued annual leave was inappropriate and agreed to re-credit the annual leave.

[22] The Applicant identified that by the end of the meeting on 4 July 2011 he “felt very stressed at the end of this meeting and was suffering from high blood pressure.” The Applicant was certified by his local doctor on 5 July 2011 as medically unfit to work for the period from 5 July 2011 to 15 July 2011. On 15 July the Applicant attended his local doctor and was certified as unfit for work for the period from 16 July to 5 August 2011. On 8 August 2011 the Applicant again attended his local doctor and was certified unfit for work for the period from 8 August 2011 to 28 August 2011.

[23] During the period of sick leave the Applicant received requests from the Respondent in relation to listings and inspections of properties which the Applicant complied with as best he could.

[24] On 23 August the Applicant received a phone call from Mr Duncan the owner of a property under rental management by the Respondent. Mr Duncan requested that the Applicant accompany Mr Duncan in conducting a property inspection on 26 August 2011 as part of a process to evict the current tenants. The Applicant contacted his local doctor to get an appointment to obtain a clean bill of health and was given an appointment on the afternoon of 25 August 2011. Mr Duncan advised the Applicant that attempts to give notice to the tenants of the proposed inspection had been unsuccessful. The Applicant agreed to attend the property on 25 August 2011 to advise the tenants of the inspection on 26 August 2011.

[25] The Applicant attended the property on 25 August 2011 and an incident occurred between the Applicant and one of the tenants. The Applicant then proceeded to his appointment with his local doctor where he was certified as fit for work as from 25 August 2011. During the 25 August 2011 the Police, who had become involved because of the incident, contacted Mr Dennis Fall to ascertain the Applicant’s relationship to the Respondent and in turn Mr Dennis Fall contacted Mr Duncan to advise that Mr Dennis Fall would accompany Mr Duncan on the property inspection on 26 August 2011. On the evening of 25 August 2011 the Applicant was arrested at his home by the Police on charges of assault and trespass and taken into overnight custody and released on bail on 26 August 2011.

[26] On 26 August Mr Duncan was picked up by Mr Dennis Fall at a prearranged pick up and drop off location and proceeded to the property where in the presence of a Police offer they conducted an inspection of the property. Mr Dennis Fall then returned Mr Duncan to the prearranged drop off location.

[27] Also on 26 August 2011 Mr Dennis Fall emailed the Applicant (cc’d to Ms Dunn, the Applicant’s advocate and representative) and advised him that he was stood down with pay whilst the Respondent investigated the incident. The email advised the Applicant that “based on the information we have been provided by the police and the tenants these allegations are extremely serious and if shown to be correct could result in termination of your employment.”

[28] The email also advised the Applicant that once the internal investigation had been completed all materials from the investigation would be given to the Applicant so that he could respond to any allegations made.

[29] As a result of an email from Ms Dunn, Mr Dennis Fall emailed Ms Dunn on 30 August 2011 and explained the nature of the process that the Respondent would apply to investigate the conduct of the Applicant. The email accepted that on the basis of information available to Mr Fall that the Respondent considered the Applicant to have been at work at the time of the incident on 25 August 2011. The email specifically drew a distinction between the investigation by the Respondent and any investigation by the Police. As Mr Fall stated:

“Our investigation is a workplace matter looking at whether or not the actions of an employee constitute serious misconduct that may result in termination of employment.” 3

[30] Communications and meetings occurred in September and October 2011 between Ms Dunn, as representative of the Applicant, and the Respondent.

[31] In September the Applicant filed with the Respondent an Incident Report in relation to the incident on 25 August 2011. By 25 October the Applicant had made a worker’s compensation claim in relation to the incident on 25 August 2011.

[32] On 25 October Mr Leigh Boscoe of James O’Neill and Associates, representing the Respondent, wrote to Ms Dunn advising that the Respondent’s internal investigation into the incident on 25 August 2011 had been completed and requested that the Applicant “attend a formal meeting in accordance with Fall and Associates disciplinary procedure.”

[33] No meeting took place as discussions were continuing between Ms Dunn, the Applicant’s representative, and the Respondent and the Respondent’s legal advisers.

[34] On 2 December 2011 Mr Dennis Fall wrote to the Police to advise them that “I retract my previous acceptance that Michael Ross was at work when the incident (25 August 2011) occurred”.

[35] On 23 January 2012 Ms Dunn, as representative for both the Applicant and his wife met with the Respondent’s legal representative “with the sole purpose of trying to find a way to sort this out once and for all, to find a pathway to resolve all of the issues so that...everyone could get on with their lives.” 4 The outcome of that discussion was that “what we both came away with was the idea of a round table”.5 Ms Dunn confirmed this by email to the Respondent’s legal representative on 30 January 2012.

[36] On 9 February 2012 the Tasmanian Magistrates Court dealt with the charges against the Applicant. One of two assault charges against the Applicant was not proceeded with by the Police and was formally dismissed. The second assault charge was dealt with on the basis that the Applicant’s legal representative sought a sentence indicator from the Magistrate who, after discussion with the Applicant’s legal representative, advised that the appropriate sentence would be that if the Applicant pleaded guilty then no conviction would be recorded but that an order would be made to restrain the Applicant from approaching the victim. The Applicant then through his legal representative pleaded guilty to the assault charge. The charge of trespass was not the subject of any substantial hearing. As soon as the Applicant’s legal representative had entered a plea of guilty on the assault charge the Prosecutor immediately said:

“Your Honour the trespass charge?”

to which the Magistrate replied:

“Charge 2 of 12792/2011, recording a conviction on both in global penalties that is the, I will deal with the matter under Section 7(f) in the Sentencing Act without recording conviction or adjourn proceedings to two years on condition that you are of good behaviour. Mr Chopping will explain the effect of that in greater detail. I also make the restraint order against you that you do not approach (name deleted) directly or indirectly. That is all I need to do.”

[37] On or about 19 February 2011 Mr Dennis Fall arranged for a large advertising sign which was on the Applicant’s property to be removed. The sign advertised the Respondent’s business and contained the contact details of the Applicant and his wife as representatives of the Respondent in the Tasman Peninsula area.

[38] Ms Dunn had further contact with the Respondent’s legal representative on 27 February and 2 March 2012. Ms Dunn emailed the Applicant and his wife on 2 March 2012 to advise them of the conversation Ms Dunn had with the Respondents legal representative and of the conclusions Ms Dunn had drawn from that conversation. Ms Dunn addressed this point in her evidence as follows:

“Then I have another subheading, “My conclusions”. “The letter is about” - so I had concluded - “terminating Mick’s employment re his guilty plea. I say this because she did not deny that that would be the context of the letter; her insistence that Mick and Sue be treated quite separately; that termination is possible re the guilty plea satisfies the requirements under IR law for a breach of the code of conduct” - and then I listed options, but you think of more. “Wait for the letter or both resign immediately so it’s on the table by Monday morning. Or Mick resign and Sue, wait to see if round table forthcoming. Or Mick resign and Sue gets clearance to return to work. Please ring if you wish to discuss. Otherwise, propose we talk Sunday evening. I will draft letters of resignation in the meantime so that they were ready.” That was that letter. Then there was the letter of resignation from Mick, which I sent to Jane Hanna on Sunday, 4 March.”  6

[39] The Applicant then resigned his employment on 5 March 2012 in the following terms:

“I hereby resign from the employment of Fall Real Estate.

My resignation now is made because I consider I have no other choice because of your treatment of me over the last several months and that the signing of any deed of release would preclude me from taking any further action in relation to this behaviour.”

Consideration

[40] The critical conduct of the Respondent in this matter is made up of several issues.

[41] The first critical issue concerns the email from the Respondent to Mr Rollins on 30 May 2012. It is clear from the conduct of the Respondent, including its cross examination of the Applicant, that this email was never meant to be in the possession of the Applicant. The action of the Respondent in seeking advice on how to get the Applicant onto a commission only payment system is irrelevant in considering whether the conduct of the Respondent forced the Applicant to resign. However what is relevant is the Respondent’s response to the fact that the Applicant had a copy of the email. It is clear that throughout the period that the Applicant had a copy of the email from Mr Fall to Mr Rollins that the Respondent considered that the Applicant had gained that copy through unauthorised or improper means. The Respondent has not at any time accepted the Applicant’s evidence that a copy of the email was provided to the Applicant amongst the set of papers given by the Respondent to the Applicant on 2 June 2011.

[42] The second critical issue is the conduct of Mr Dennis Fall in providing several statements to the police in relation to the Applicant entering the premises of Mr Duncan on 25 August 2011 to give notice to the tenants of an inspection which was to take place on 26 August 2011.

[43] The evidence in this matter establishes that even while the Applicant was on sick leave that he was asked to perform work by the Respondent and that he did do so. Mr Dennis Fall’s statement to the police on 2 December 2011 that “I retract my previous acceptance that Michael Ross was at work when the incident (25 August 2011) occurred” clearly ignored the practice that the Applicant would be asked to perform work whilst on sick leave. Furthermore the statement to the police shows that Mr Dennis Fall was taking an extremely strict view of the status of the Applicant which is not necessarily in accord with the normal practice. The Applicant’s evidence was that prior to the 25 August 2011 he felt well enough to resume work after a period of personal leave but that the earliest appointment that he could arrange with his treating physician was in the middle of the day on 25 August 2011. The approach adopted by Mr Dennis Fall in his statement to the police was that the Applicant was not engaged in work on 25 August 2011 at any time prior to the doctor issuing a certificate of capacity at the time the Applicant visited his doctor. In other words the approach adopted by Mr Dennis Fall was that the Applicant was not fit to work and was on sick leave up until the moment that the treating physician issued the certificate of capacity, and that as from the moment that the certificate of capacity was issued by the treating physician then and only then was the Applicant fit for work and considered to be on duty.

[44] It is also very clear from the evidence of both Mr Dennis Fall and Mr Duncan that Mr Dennis Fall knew at all times since the morning of 26 August 2011 that the Applicant had the authority of the owner to enter the property to give notice to the tenants. Yet this critical piece of information was not included in any of Mr Dennis Fall’s statements to the police.

[45] The picture painted by the statements of Mr Dennis Fall to the police was that the Applicant was not engaged in his employment when entering the property on 25 August 2011 and that the Applicant did so without permission from the Respondent. This picture was misleading in the extreme. The proper conclusion to be drawn from the conduct of Mr Dennis Fall in making his several statements to the police was that he was assisting the police to maintain and prove a charge of trespass against the Applicant when in fact the evidence in this matter discloses that no trespass occurred.

[46] The actions of Mr Dennis Fall would at the very least have given the police a reason not only to charge the Applicant with trespass but to prosecute that charge, as they did, on 9 February 2012. The actions of Mr Dennis Fall were highly prejudicial to the Applicant and were clearly not consistent with Mr Dennis Fall wanting to retain an ongoing relationship with the Applicant.

[47] The third critical issue is the fact that shortly after the prosecution of the Applicant in the Magistrates Court, Mr Dennis Fall arranged to have the large advertising sign removed from the Applicant’s property. The advertising sign both advertised the business of the Respondent as well as advertising that the Applicant and his wife were the Respondent’s representatives on the Tasman Peninsula. The Applicant had been stood down on 26 August 2011 and the combination of the stand down and subsequent incapacity to work meant that the Applicant had not performed work for the Respondent since 25 August 2011. Yet notwithstanding the nearly four months in which the Applicant had not performed any work for the Respondent Mr Dennis Fall only initiated action to remove the large advertising sign from the Applicant’s property after the proceedings in the Magistrates Court. Whilst the rhetoric of the Respondent in early 2012 was that it wanted to meet with the Applicant to complete its investigation into the incident on 25 August 2011, the action of Mr Dennis Fall in removing the sign from the Applicant’s property on or about 19 February 2012 is consistent with the contention from the Applicant that the Respondent intended to terminate the Applicant’s employment. It is relevant to note that at all times the Applicant’s wife was still employed by the Respondent even though she had been medically unfit for work from late 2011.

[48] The fourth critical issue is the decision in late February and early March 2012 of the Respondent to separate the Applicant and his wife for the purposes of continuing discussions over their respective issues with the Respondent. Ms Dunn, representative for both the Applicant and his wife, had sought to have a round table discussion over the issues involving their continued relationship with the Respondent. The Respondent was under no obligation to deal with the Applicant and his wife jointly. However the insistence by the Respondent in late February 2012 on dealing with the Applicant and his wife separately, when considered in the context of the overall conduct of the Respondent, including the action of Mr Dennis Fall in having the large advertising sign removed from the Applicant’s property, is a relevant and critical action.

[49] It is relevant when considering the actions of the Respondent in separating the Applicant from his wife for the purpose of ongoing discussions with the Applicant’s wife in late February 2012 to have regard to the views of Ms Dunn. Whilst Ms Dunn is clearly and unequivocally on the side of the Applicant and his wife I consider Ms Dunn’s assessment of the conduct of the Respondent in separating the Applicant from his wife to be an objective assessment of a professional with considerable experience in IR/ER matters.

[50] Having regard to each of the critical issues I have identified I have no hesitation in coming to the conclusion that the Respondent’s actions were intended to bring the employment relationship with the Applicant to an end.

[51] I determine that the Applicant resigned from his employment, but was forced to do so because of conduct or a course of conduct engaged in by his employer, the Respondent.

Was the Dismissal of the Applicant Harsh, Unjust or Unreasonable within the Meaning of s.387?

[52] Having determined that the Applicant was dismissed within the meaning of s.386 of the Act, I now turn to a consideration of the matters required to be considered under s.387 of the Act.

Was there a valid reason for the dismissal?

[53] The Applicant admits that he had a knife in his hand when he engaged in a verbal altercation with a tenant on 25 August 2011.

[54] At least part of the verbal altercation between the Applicant and the tenant on 25 August 2011 was recorded by the police when the tenant rang them whilst the Applicant and the tenant were exchanging words.

[55] The actual Police record of part of the conversation was not in evidence but Mr Dennis Fall included in his evidence a copy of the transcript of proceedings before the Magistrates Court. The transcript is as follows:

“Prosecutor: Mr and Ms (names deleted) had a current lease on the property through Falls Real Estate for which the Defendant worked and at the time they were washing their pet dog on the front, outside the front of the house. The Defendant has approached the property and the dog has been taken and locked inside the house. When the dog was locked inside the house Your Honour it was in the process of being washed and was playing with water and the dog was subsequently wet and was taken inside the house wet. The Defendant has alighted from his car and walked up to the female occupant and to (name deleted) who have returned from the house. The complainants’ describe him as agitated and was carrying a knife in his right hand. (Name deleted) was concerned about what happened and dialled 000 on his mobile phone. The conversation that subsequently occurred was recorded on the 000 line, it went as follows:

The Defendant Mr Ross said to the two complainants “and keep that fucking dog out of it”. Mr (name deleted) replied “No you keep your knives and shit off’ but was interrupted by the Defendant “I’m telling you if that dog attacks me I will kill it alright”. When told it didn’t go near him the Defendant replied “If that dog goes out and chases sheep it will be shot”. Mr (name deleted) said “has it ever’’. The Defendant started to reply however the female occupant Ms (name deleted) asked overthe top of him “Why come on to our property holding a knife like that threatening our dog?”. The Defendant has then held the knife above his shoulder, made stabbing motions with it. (name deleted) was about 2 feet from the complainant at the time and (name deleted) felt threatened by the Defendant and the Defendant saying hold your knife to my face to which the Defendant replied “If I was holding a knife to your face it would be coming out the back of your fucking head”.

At this time the complainants made their way back to the house entering the dwelling. The Defendant made his way to his car and exchanged more words before driving away.”

[56] The evidence of the Applicant paints a different picture but does not alter the words used, and the Applicant admits holding a knife (a box cutter) whilst arguing with the tenants.

[57] The Respondent treated the conduct of the Applicant as a serious issue. The Respondent conducted its own internal review of the incident and sought a response from the Applicant. The Applicant was clearly put on notice by the Respondent as early as 26 August 2011 as follows:

“based on the information we have been provided by the police and the tenants these allegations are extremely serious and if shown to be correct could result in termination of your employment.”

[58] For a reason for dismissal to be a valid reason it must be sound defensible and well founded and must not be capricious, fanciful, spiteful or prejudiced.

[59] Having considered the evidence of the Applicant and the evidence of Ms Gee it is apparent that the dog kept by the tenants who were involved in the incident on 25 August 2011 was fearsome. I have no doubt in accepting the evidence of the Applicant that he had genuine concerns about the dog on the rental property.

[60] Where the Applicant crossed the line was in carrying a knife (even a small knife such as a box cutter) when he entered the property on 25 August 2011 to advise the tenants of the planned inspection on 26 August 2011. Given the Applicant’s concern about the dog and the description of the dog given in evidence it would appear that holding a box cutter would not have ensured the Applicant’s safety if the dog did attack. Further given the Applicant’s concern about the dog on the property he could have and should have ensured that he went accompanied onto the property.

[61] A verbal altercation with the tenants but without the Applicant holding a knife would most likely not amount to a valid reason for dismissal. But holding a knife whilst speaking aggressively to tenants is very different. The Applicant on his own evidence was performing work for his employer when he entered the rental property on 25 August 2011. The conduct of the Applicant reflects on the Respondent and the real estate profession generally.

[62] Dismissal for the reason of threatening a tenant whilst holding a knife could not be considered to be a capricious, fanciful, spiteful or prejudiced reason.

[63] I find that there was a valid reason for the dismissal.

Was the Applicant notified of the reason for dismissal?

[64] Given that the Applicant resigned his employment but was forced to do so, this criteria is strictly speaking not relevant. However I do note that as early as 26 August that the Applicant was on notice that the Respondent considered that the actions of the Applicant on 25 August 2011 would if proven be sufficient to lead to termination of employment.

Was the Applicant given an opportunity to respond to any reason related to capacity or conduct of the Applicant?

[65] It is clearly established through the evidence in this matter that in relation to the issues which led to the dismissal of the Applicant the Respondent sought a response from the Applicant and that the Respondent provided the Applicant with an opportunity of attending a meeting with the Respondent to permit the Applicant to respond.

Was there any unreasonable refusal by the Respondent to allow the Applicant to be represented at any discussions relating to the dismissal?

[66] The Respondent recognised and dealt with the Applicant’s representative at all material times.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

The degree to which the absence of dedicated HRM specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

[67] Neither the size of the Respondent’s enterprise nor its lack of specialist HRM specialists or expertise adversely impacted on the procedures followed by the Respondent in dealing with the Applicant.

[68] The evidence is clear that the Respondent had access to and used professional advisors throughout its dealings with the Applicant.

Are there other matters that FWA considers relevant?

[69] The Applicant contended that the action of the Respondent in removing the banner advertisement from the local newspaper was a relevant factor. I do not consider it to be so. The evidence of the Respondent, which was not challenged by the Applicant, was that the banner advertisement was removed from 3 local newspapers only one of which was in the Tasman Peninsula area. 7

[70] Whilst there was a valid reason for the dismissal this does not mean that dismissal was the only proper response to the conduct of the Applicant. Other responses available to the Respondent could have appropriately dealt with the behaviour of the Applicant whilst continuing the Applicant’s employment.

[71] Some of the actions of Mr Dennis Fall lack any sense of honesty or integrity. Having said that the issue is whether the conduct of Mr Dennis Fall is such as to constitute a relevant matter for the purposes of s.387.

[72] Notwithstanding any criticism that can rightly be directed at Mr Dennis Fall and the Respondent for their treatment of the Applicant the inescapable fact is that the Applicant engaged in conduct which of itself formed the valid reason for the dismissal. I am of the considered view that whilst many of the actions of Mr Dennis Fall support a finding that the dismissal was unfair they are not sufficient to outweigh the factors supporting a finding that the dismissal was not unfair.

[73] The foregoing traverses only some of the evidence presented in this matter but I have taken into account all of the evidence in this matter. I have kept in mind the Applicant’s evidence as to his work history and his personal circumstances and his standing within the Tasman Peninsula community. I have also kept in mind the contentions of the Applicant as to the effect that the Respondent’s actions have had on him and his wife. The consideration of the relevant criteria under s.387 is made in the context of the holistic view created by considering all of the evidence and submissions in this matter.

Conclusion

[74] I have carefully considered each of the criteria in s.387 and on balance I find that the dismissal was not unfair. The application is dismissed.

Observation

[75] I make an observation which does not form part of the decision in this matter but which may assist the parties.

[76] The logic of finding that the Applicant was dismissed by the Respondent is that the Applicant was entitled to a period of notice or payment in lieu of notice if the dismissal was not a summary dismissal. I observe that the conduct of the Applicant does not appear to be conduct that was inconsistent with a continuation of the contract of employment and therefore may not justify a summary dismissal. The decision noted that the Respondent could have dealt with the Applicant other than by dismissing him.

[77] I observe that the Applicant may have an entitlement to payment in lieu of notice.

COMMISSIONER

Appearances:

M. Ross on his own behalf

T. Cox for the Respondent

Hearing details:

2012

Hobart

2, 3 and 4 July

 1   FWAFB 3769 at para [24]

 2   [2009] AIRCFB 680

 3   Exhibit R1

 4   Transcript at PN2063

 5   Ibid at PN2063

 6   Ibid at PN2066

 7   Ibid at PN1780

Printed by authority of the Commonwealth Government Printer

<Price code C, PR529359>