Mr Adam Leary v Rebel Sport Limited T/A Rebel Sports
[2011] FWA 8512
•6 DECEMBER 2011
[2011] FWA 8512 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Adam Leary
v
Rebel Sport Limited T/A Rebel Sports
(U2011/8408)
COMMISSIONER STANTON | NEWCASTLE, 6 DECEMBER 2011 |
Termination of employment - alleged unfair dismissal - jurisdictional objection - genuine resignation - no termination at the initiative of the employer - no jurisdiction - application dismissed
Background
[1] This decision relates to an application for an unfair dismissal remedy by Mr Adam Leary (the applicant) concerning the alleged termination of his employment by Rebel Sports Limited trading as ‘Rebel Sports’ (the respondent). The application is made under s394 of the Fair Work Act 2009 (the Act).
[2] This application was subject to hearing in Newcastle 20 and 21 September 2011. Mr P Santone of Counsel instructed by Mr S Gray appeared for the applicant. Ms S Bingham of Counsel appeared for the respondent instructed by Ms T Duff.
[3] The respondent contends the applicant resigned voluntarily.
Issue for determination
[4] The preliminary issue for determination is whether the applicant was dismissed by the respondent or whether he resigned from his employment. The applicant contends he was dismissed at the respondent’s initiative and did not resign. In the event there is no dismissal within the meaning of s. 386(1) of the Act, then Fair Work Australia has no jurisdiction to deal with the application.
Background
[5] The following background summary of events is confined to those relevant to the jurisdictional issue for determination.
[6] The respondent contends the applicant resigned his employment verbally and voluntarily to pursue studies at the New South Wales Police Force Academy (the Police Academy) in Goulburn, so as to fulfill a long held ambition to become a policeman. The respondent contends he sought a period of annual leave from 9 May to 11 June 2011 inclusive with his resignation being effective from 13 June 2011.The respondent asserts the applicant sought to maximise his annual and long service payments on termination to assist him during his proposed studies.
[7] The applicant was farewelled on 6 May 2011 to commence studies at the Police Academy on or about 8 May 2011. A few days later, he decided against pursuing a career in the police force. The applicant subsequently approached the respondent a week later on 19 May 2011 seeking his job back. The respondent subsequently wrote to the applicant on 20 May 2011 to formally accept his verbal resignation given in April and effective 13 June 2011.
[8] The applicant asserts that at no time did he inform the respondent or any of its representatives that he proposed to resign in order to pursue his long held ambition to become a policeman and attend the 34 week training program conducted by the Police Academy. Rather, his intention was to take annual leave and accrued long service leave so that in the event he unsuccessful in his pursuits, he could return to his position at the respondent’s Charlestown store. If he was successful with the course, he would subsequently resign his employment.
[9] The applicant contends his employment was terminated in correspondence dated 20 May 2011 following a verbal request he made on 19 May 2011 to cut short his period of approved annual leave to enable him ‘to return to work earlier than he had anticipated’. The applicant also informed the respondent that ‘he would no longer be resigning.’ 1(emphasis added)
[10] It was the applicant’s case that employees were required to submit a written resignation. He had not done so. Rather, he had sought approval to take annual leave and possibly long service leave to attend the Police Academy. The applicant also claimed that at the time of taking this period of leave, he ‘made it clear to his co-workers and direct supervisors that he had not resigned.’ 2
[11] The applicant alleged his dismissal was harsh, unjust or unreasonable. The primary remedy sought was reinstatement to his previous position and in the event the Tribunal determined reinstatement inappropriate, an order for monetary compensation.
Evidence
For the applicant:
Mr Daniel Marshall
Mr Adam Leary (applicant)
Mr Stuart McPhail
Mr John Leary
Mr Mitchell Baus
For the respondent:
Mr Todd Sweeney
Mr Craig Booth
Mr Warren Hugo
For the Applicant
Daniel Marshall
[12] Mr Marshall’s written evidence (Exhibit A1) was that he had resigned from the respondent effective 20 October 2010 following some eight years employment. Mr Sweeney, his floor manager at the time, asked him to put his resignation in writing:
It needs to be in writing. It’s company policy.
[13] It was Mr Marshall’s evidence that the requirement for a resignation to be in writing was set out in an Employee Handbook first given to him in 2003 on the commencement of his employment. Mr Marshall understood the Employee Handbook was still used by the respondent.
[14] In cross examination, Mr Marshall confirmed it was general practice that when an employee resigned, the resignation was confirmed in writing. 3 It was also generally accepted that when an employee resigned, staff would contribute to the purchase of a farewell card, gift and cake.4
Adam Leary
[15] It was the applicant’s written evidence (Exhibit A2) that he had organised with his direct Manager, Mr Mitchell Baus, to take annual leave whilst he attended the Police Academy in Goulburn. He also understood that Mr Craig Booth, the respondent’s Area Manager, was required to authorise all leave applications. In that regard, approximately two weeks prior to the commencement of his annual leave in May this year, he recalled speaking to Mr Booth who confirmed his leave application had been approved.
[16] The applicant contends he expected not to return to work at the respondent’s Charlestown store as he would become a NSW Police Officer. It was also the applicant’s evidence that he had informed his fellow workers on a number of occasions that he was not resigning his employment. In that regard he had stated words to the following effect on a number of occasions within the workplace:
I’m going to the Police Academy in Goulburn to try and be a cop. I’m going to take annual leave and long service leave if necessary whilst I’m there. If it works out I’ll be back to resign. If it doesn’t that’s cool, at least I have a job to come back to.
[17] The applicant contends Mr Booth was aware that he was taking leave to attend the Police Academy. However he could not recall with any precision when this conversation occurred.
[18] The applicant maintains an informal drinks function held at the Honeysuckle Hotel on 6 May 2011 organised by staff was not a ‘farewell party’ and in any event, the only manager to attend the function was Mr Michael Baus. During the course of this function a number of staff joked that ‘he probably won’t pass the academy and have to come back.’ 5
[19] The applicantdeposed it was his understanding that full time staff were required to resign in writing and in that regard referred to the recent resignation of Mr Daniel Marshall.
[20] Following the receipt of correspondence from the respondent dated 20 May 2011 accepting his resignation, he said ‘he became very angry’ and sought the support of a number of Charlestown store staff members to sign the following petition:
The names and signatures below are confirming at no point did I resign in writing or verbal. I got in2 Police Force but took annual leave to cover myself 4 it and to get my long service leave. If it worked out I was gonna come back and quit on May 28th which I had told all staff and management repeatedly. (signed by 9 staff members).
[21] In cross examination, the applicant agreed that Mr Booth was the decision maker and the only person who could approve his leave application. 6 While he denied telling Mr Sweeney that he proposed to leave the respondent’s employment, the applicant did agree he had told Mr Sweeney that he proposed to try and ‘cut a deal’ with Mr Booth as his proposed commencement date at the Police Academy left him a few days shy of his long service leave entitlement.7 He later retracted the statement concerning his discussion with Mr Sweeney regarding long service leave.8
[22] The applicant denied informing Mr Hugo and Mr Booth on or about 15 April 2011 that he was leaving to attend the Police Academy.
[23] The applicant confirmed that he was given a farewell card, gift and cake on 6 May 2011 and agreed that the card contained statements about him leaving the respondent’s employment. The applicant denied that he had no intention of returning to the respondent after commencing annual leave. In that regard, the applicant stated he did not raise his intention to return to work with Mr Booth because he was on leave at the time. However he did tell Mr Hugo at least three or four times that ‘I would be back on the 28th as long as everything’s going good with the Police to quit in writing.’ 9
[24] The applicant confirmed that when he was informed that he would commence at the Police Academy on 9 May 2011, he discussed with Mr Booth an intention to take some annual leave so as to ensure his final payout ‘when you finished up’ was not taxed at the higher rate. 10 In that regard, the applicant confirmed that he had told Mr Booth that he was ‘finishing up’ on 6 May 2011 to attend the Police Academy and agreed that he did not tell him that he was coming back.11 However, he denied that it was reasonable in the circumstances for Mr Booth to conclude that he was finishing up and had in fact resigned.12
[25] It was the applicant’s evidence that his annual leave was approved to commence from 8 or 9 May 2011 until 11 June 2011. He confirmed that he decided to leave the Police Academy after two days and it was not until 13 May 2011 that he contacted the respondent’s Charlestown store and spoke to Mr Hugo. He denied Mr Hugo told him ‘Mate, as far as I’m concerned, you resigned. We had cake and everything. I’ll have to speak to Boothy.’ 13
[26] The applicant denied asking Mr Booth for his job back during the course of a telephone conversation on 18 May 2011. The applicant subsequently confirmed that when he visited the store on 19 May, Mr Booth told him that his job no longer existed. The applicant confirmed he did not take any contemporaneous notes concerning his discussions with Mr Booth on 18 and 19 May 2011. He also confirmed he had not referred to those discussions in his witness statement.
Stuart McPhail
[27] Mr McPhail’s written evidence (Exhibit A3) was that the applicant did not resign prior to commencing at the Police Academy. However, he expected the applicant would become a NSW Police Officer and accordingly, would not return to work. He understood the applicant took annual leave to attend the Police Academy.
[28] Mr McPhail stated the applicant had informed him on a number of occasions concerning his intentions:
I’m going to the Police Academy in Goulburn to try and be a cop. I’m going to take annual leave and long service leave if necessary whilst I’m there. If it works out I’ll be back to resign. If it doesn’t that’s cool, at least I have a job to come back to.
[29] Mr McPhail confirmed it was his experience that staff were required to resign in writing.
[30] In cross examination, Mr McPhail stated the applicant had told him that he proposed ‘to finish if all went well.’ 14
[31] With respect to his witness statement, Mr McPhail confirmed that he had spoken to the applicant’s brother, Mr John Leary ‘about what to write as I was unsure of the words I was meant to use.’ 15 Despite his written statement being largely identical to the applicant’s, Mr McPhail was resolute it represented ‘my true recollection of events.’16 He subsequently confirmed the applicant had prepared his witness statement and he had simply signed it.17
[32] Despite strenuous questioning from Ms Bingham concerning his hand written statement that was set out under Annexure ‘A’ to his statement ‘were strangely similar’ to the Annexure ‘A’ of Mr John Leary’s statement, Mr McPhail contended the statement was his own. The Annexure relevantly stated the following:
I am 100% confirming Adam’s story that he never verbally quit and he took annual leave to cover himself for the cops and he was going to quit on May 28th as long as it worked out. He had been telling everyone at the store this for weeks before he left.
And as for his resignation as long as I’ve been there you have always had to put it in writing or it didn’t count. Three full time staff have left in the last 12 months and verbal quitting was never accepted, they all had to put it in writing.
[33] In response to questions concerning the respondent’s expectation that the applicant would not be returning to work, Mr McPhail resiled from his written statement and agreed that he did not know whether the applicant was expected back to work at the Charlestown store. 18 Mr McsPhail also confirmed he commenced performing some of the applicant duties from June this year.
John Leary
[34] Mr John Leary is the applicant’s brother. Mr Leary’s written statement (Exhibit A4) largely mirrors those filed by Mr McPhail and the applicant, including an identical Annexure ‘A’. He also contended the applicant had told him on a number of occasions that he was not resigning:
I’m going to the Police Academy in Goulburn to try and be a cop. I’m going to take annual leave and long service leave if necessary whilst I’m there. If it works out I’ll be back to resign. If it doesn’t that’s cool, at least I have a job to come back to.
[35] Mr Leary also deposed three unnamed full time staff who had resigned over the past year, were required to tender a written resignation as verbal resignations were not accepted by management.
[36] In cross examination, Mr Leary confirmed that Mr Booth was the decision maker within the store structure. He further confirmed that at no time was he present when his brother had discussions concerning his proposed entry into the Police Academy with Mr Booth, Mr Hugo, Mr Sweeney or Mr Baus.
[37] Mr Leary was unaware staff had purchased a card, gift and cake for the applicant prior to him commencing leave to attend the Police Academy. Mr Leary was also unaware the applicant had applied for four, rather than two weeks annual leave which expired 11 June 2011.
[38] It was Mr Leary’s evidence that the applicant had prepared Mr McPhail’s statement. 19 He further stated that the applicant had also prepared his statement filed in these proceedings.20
[39] Mr Leary agreed the handwritten statement set out in Attachment ‘A’ to his statement was prepared to by the applicant and himself. In that regard, Mr Leary was emphatic that he and his brother had not collaborated with respect to their evidence filed in these proceedings nor had they concocted a story for the purposes of him getting his job back. 21
[40] Mr Leary also denied speaking to Mr McPhail concerning the content of Attachment ‘A’ to his statement which was also identical to a handwritten statement attached to Mr McPhail’s statement. When confronted with Mr McPhail’s evidence that he had collaborated with the applicant and himself concerning his statement filed in these proceedings, Mr Leary was emphatic that there was no collaboration at all. 22
Mitchell Baus
[41] Mr Baus’s written statement (Exhibit A5) was largely identical to the statements filed by other witnesses for the applicant, particularly Mr McPhail and Mr John Leary. To repeat that evidence is unnecessary.
[42] Mr Baus was a former Floor Manager of the respondent’s Charlestown store and the applicant had previously reported to him. According to Mr Baus, the applicant had told him on a number of occasions leading up to April 2011 words to the effect:
I will be back on May 28 to resign if it all works out. 23
[43] It was also Mr Baus’s evidence that full time employees were required to give two weeks’ notice in writing if they sought to resign.
[44] In cross examination, Mr Baus was resolute that he had told Mr Sweeney, Mr Hugo and Mr Booth the applicant was going to ‘try out’ the NSW Police Force.
[45] In relation to his witness statement, it was Mr Baus’s evidence that he had prepared his own statement and in fact had typed it himself. In response to a line of questions that his statement was remarkably similar to the statement of Mr John Leary, 24 Mr Baus was adamant that the statement was his own work.
[46] In relation to the following paragraph set out in his statement and those filed in these proceedings by the applicant, Mr McPhail and Mr Leary:
I’m going to the Police Academy in Goulburn to try and be a cop. I’m going to take annual leave and long service leave if necessary whilst I’m there. If it works out I’ll be back to resign. If it doesn’t that’s cool, at least I have a job to come back to.
Mr Baus maintained these words set out in his statement were his own.
[47] Mr Baus agreed that it was Mr Booth’s responsibility to approve annual leave. He was not present when the applicant spoke to Mr Booth concerning annual leave matters relating to this application. He also confirmed he did not attend a meeting convened by the respondent on 15 April 2011 regarding replacing the applicant due to his pending resignation. He was unaware of any management discussions held concerning the replacement of Mr Leary. 25
[48] Mr Baus confirmed it was common practice for staff members to be given a card, gift and a cake when they left the respondent’s employment. Mr Baus also confirmed that at the time, it was his view that the applicant ‘was never coming back to work.’ 26 In re-examination, Mr Baus stated that if the applicant had told him he wished to resign he would have referred him straight to the Regional Manager.27
Adam Leary recalled
[49] Following the evidence of Mr Baus, the applicant was recalled to give further evidence. The applicant’s additional evidence simply confirmed his written evidence that when he accepted the offer to attend the Police Academy, he organised with his direct Manager, Mr Baus, to take annual leave to attend the course. He also confirmed that at the drinks function held at the Honeysuckle Hotel on 6 May 2011 he had made staff aware, by means of a number of jokes and jibes that ‘I might be back yet.’ 28 The applicant had also stated if the Police Academy worked out for him he would be back on the 28th of May 2011 ‘to quit.’29
[50] In further cross examination, the applicant conceded that Mr Baus had no authority to approve his annual leave request and subsequently confirmed Mr Baus had not approved his leave application. He had simply informed Mr Baus of his plans. 30 The applicant also agreed that at the time he discussed matters with Mr Baus at the Honeysuckle Hotel, Mr Baus was no longer an employee of the respondent.31
For the Respondent
Todd Sweeney
[51] Mr Sweeney’s written evidence is set out in an affidavit (Exhibit R1) tendered during proceedings on 20 September 2011. He was not called by the applicant. Mr Sweeney has been employed by the respondent for some ten years. Of relevance to these proceedings is the fact that he was a Floor Manager at the respondent’s Charlestown store between September 2008 and August 2011. He reports to Mr Booth, the Store Manager/Regional Manager.
[52] Mr Sweeney stated floor managers did not have authority to accept leave applications nor ‘hire or fire’ staff. 32 Such powers were vested with Mr Booth for the relevant approval. When an employee informs him of their intention to resign, he refers them to Mr Booth. It was his evidence that he understood Mr Hugo and Mr Baus had adopted a similar practice.
[53] Mr Sweeney deposed he became aware that the applicant had applied to join the NSW Police Force during 2010 and in April this year the applicant told him that he had been accepted to enter the Police Academy. Numerous discussions ensued concerning the applicant’s intention to join the NSW Police Force. In that regard, Mr Sweeney deposed the following:
During these discussions, Adam said to me that he was “finished” with Rebel and that he had “finally escaped.” Adam told me that he was “going to try and cut a deal with Boothy [Craig Booth]” as his start date at the Police Academy was a few days shy of his long service date and did not want to miss out on his long service leave. Adam said that he wanted to use some of the money to pay for the Police Academy. 33
[54] It was Mr Sweeney’s evidence that on or about 15 April 2011, he attended a meeting with Mr Booth, Mr Hugo and another to consider the effect of the applicant ‘leaving the business’ and whether he would be replaced or whether his duties would be reallocated amongst other staff.
[55] During the applicant’s last week of work, Mr Sweeney saw a notice board sign stating there would be drinks for the applicant at the Honeysuckle Hotel at 7.00pm on 6 May 2011. He understood the purpose of the function was to mark the fact that the applicant was leaving the respondent’s employment.
[56] Mr Sweeney stated he contributed to the applicant’s farewell gift because it was his understanding, from his discussions with the applicant that he had resigned. Had the applicant said ‘he was just going on holidays’, Mr Sweeney deposed he would not have made a contribution towards the gift nor would he have signed the farewell card.
[57] Mr Sweeney stated that at no time during his discussions with the applicant did he say, ‘he would be back or would be coming back to work for the respondent if the Police Academy did not work out.’ Had he become aware the applicant might return to work after his annual leave, he would have immediately passed that information to Mr Booth.
[58] On or about 10 May 2011, Mr Sweeney deposed that he began to hear rumours that the applicant had left the Police Academy and wanted to return to work. As he could not confirm such rumours with staff, he attempted to contact the applicant by mobile phone. However, the phone rang out and the applicant failed to return his call. Later, on 19 May 2011, he saw the applicant in the Charlestown store and asked him to see him before he left. The applicant subsequently stated words to the effect, ‘I want to get my job back.’ In response, Mr Sweeney told the applicant he needed to speak to Mr Booth.
[59] In relation to Mr Marshall’s evidence, 34 Mr Sweeney denied he said to Mr Marshall words to the effect that, ‘It (a resignation) needs to be in writing. It’s company policy.’ According to Mr Sweeney, he simply asked Mr Marshall to confirm his verbal resignation in writing.
Craig Booth
[60] Mr Booth deposed he was the Regional Manager of the respondent. 35 He was first employed by the respondent in July 2004. Prior to his current position he was the Store Manager/Regional Manager of the Charlestown store between October 2009 and August 2011.36 As Store Manager he was supported by a number of floor managers who reported directly to him. Those floor managers were Mr Todd Sweeney, Mr Warren Hugo and Mr Mitchell Baus.37 Sales assistants including the applicant reported to a floor manager.
[61] Mr Booth deposed he had known for some time that the applicant wished to attend the Police Academy. In or about early April 2011 he was informed by either Mr Sweeney or Mr Hugo that the applicant had resigned as he was pursuing a career in the NSW Police Force. At about the same time he recalled the applicant telling him that he had been accepted into the Police Academy and he would take annual leave prior to ‘finishing up at Rebel.’ 38
[62] The applicant also told Mr Booth that he wished to take annual leave prior to going to the Police Academy ‘so he didn’t get taxed as much on [his] final payout.’ Mr Booth informed the applicant that the annual leave should be approved. The applicant also informed him that he would be taking approximately a month of annual leave and his last work day at the Charlestown store would be the work day before the commencement of his annual leave on 9 May 2011. Mr Booth also recalled the period of annual leave was from 9 May to 11 June inclusive.
[63] Mr Booth further deposed that at the time of his discussion with the applicant concerning leave arrangements, he understood the applicant’s resignation had been accepted by the respondent through Mr Sweeney or Mr Hugo. It was Mr Booth’s evidence that the applicant also confirmed his resignation during the course of his conversation concerning leave arrangements.
[64] On or about 15 April 2011, Mr Booth convened a management meeting and discussed options for replacing the applicant, including whether to split the position into two components comprising a morning fill person and a hardgoods/footwear sales person. A copy of contemporaneous note made by Mr Booth concerning the meeting on 15 April 2011 was attached to his statement.
[65] Mr Booth deposed that in his experience as a manager the preferred course was to have all verbal resignations confirmed by the employee in writing. He further stated that whilst the applicant’s verbal resignation had been accepted by Mr Sweeney or Mr Hugo and himself, it was an oversight that he was not asked to confirm his intentions in writing. Further, Mr Booth maintained the applicant had made it clear to him that he had decided to pursue another career. In that regard he never applied for leave without pay or leave of absence from his employment with the respondent pending the Police Academy ‘working out for him.’ 39 Mr Booth stated he was on annual leave on 6 May 2011, the applicant’s last day at work. However he was aware that staff had arranged the customary gift, farewell card and function for the applicant consistent with past practice when employees leave the business.
[66] Upon his return from annual leave on or about 13 May 2011, Mr Booth received a phone call from Mr Sweeney who informed him that the applicant had visited the Charlestown store stating ‘he wanted his job back.’ 40 Later, on or about 18 May 2011, the applicant telephoned the Charlestown store and the call was put through to Mr Booth. During the course of that conversation the applicant sought to reduce his annual leave and get his job back. In response Mr Booth told the applicant he had resigned his employment and would talk to HR.
[67] Mr Booth subsequently telephoned the respondent’s HR Department and explained to the Group HR Advisor, Ms Fiona Halliday, 41 that the applicant had verbally resigned but now wanted his job back. Ms Halliday’s advice was to inform the applicant that he had verbally resigned and the resignation had been accepted by the respondent. Ms Halliday also said Mr Booth should inform the applicant that getting his job back was not a simple matter particularly in light of the fact that the respondent intended to replace him with another employee and on that basis, there was no vacancy for him to fill.
[68] On or about 19 May 2011, the applicant attended the Charlestown store to discuss the matter further with Mr Booth. Mr Booth told the applicant once more that he had resigned and could not come back because his role no longer existed as the respondent was in the process of replacing him and distributing his duties to another staff member.
[69] It was Mr Booth’s evidence that at no time had the applicant told him that he may be coming back to work at the Charlestown store following his period of annual leave.
[70] Mr Booth deposed he was aware the applicant had telephoned the respondent’s HR Department on or about 19 May 2011 seeking to return to work. He was also aware the respondent wrote to the applicant on 20 May 2011 confirming the acceptance of his verbal resignation.
[71] In further evidence in chief, Mr Booth stated he had accepted the verbal resignation of an employee and in such cases, HR was contacted to undertake the relevant paperwork and process the resignation through the system. He further confirmed that prior to the day of the hearing he was unaware of any policy or procedure adopted by the respondent with respect to resignations.
[72] In cross examination, Mr Booth stated staff would ordinarily approach Mr Sweeney or Mr Hugo concerning applications for annual leave. However, he conceded that while it was possible that employees might also talk to with Mr Baus about leave matters, Mr Baus had no authority to approve such leave. Mr Booth also confirmed that as senior floor managers both Mr Hugo and Mr Sweeney had the authority to accept resignations.
[73] Mr Booth confirmed the applicant had been granted leave up until 11 June 2011 and at that point some 189 hours of leave remained in credit. In that regard, the applicant had sought to take some annual leave in order to reduce the tax on his final termination payment.
[74] It was Mr Booth’s evidence that he thought a resignation letter had been received by Mr Hugo or Mr Sweeney. In that regard, Mr Booth stated that when he conferred with Mr Hugo and Mr Sweeney and another on 15 April 2011 to discuss hiring needs, the meeting proceeded on the basis that Mr Hugo, Mr Sweeney and himself ‘all knew Adam was leaving on the final day of his work prior to leave.’ 42
[75] Mr Booth stated that he was now aware of and had read the respondent’s Team Member Employment and Safety Handbook and it was his view that a written resignation was the respondent’s form of resignation. 43 Mr Booth conceded that when he spoke to Ms Halliday by telephone on 18 May 2011, he informed her that the applicant had resigned verbally.44 Mr Booth refuted the suggestion that the applicant had planned to come back to work in the event of some failing on his part to become a policeman.45 In his view, if that was the intention of the applicant, Mr Sweeney or Mr Hugo would have informed him immediately.46
[76] Mr Booth confirmed he told the applicant that the respondent had accepted his verbal resignation during the discussion on 19 May 2011 at the Charlestown store. At the time, he also told the applicant that his position no longer existed. Mr Booth was unaware why the respondent sent a letter on 20 May 2011 47 confirming the applicant’s resignation when it asserted the company accepted his verbal resignation sometime in April 2011. He denied the respondent unilaterally terminated the applicant’s employment.48 Regarding the evidence of Mr Baus, Mr Booth agreed that it was possible that the applicant had conveyed his intentions to Mr Baus but reiterated that Mr Baus was a junior floor manager and ‘didn’t make the calls on those sorts of things … and, as I said, it was never mentioned to myself.’49
Warren Hugo
[77] Mr Hugo’s written evidence was set out in a statement (Exhibit R3) tendered during proceedings on 20 September 2011. In his written evidence Mr Hugo deposed that he had been employed by the respondent since 4 May 2010, initially as a ‘manager in training’ and later as Floor Manager at the Charlestown store. He was appointed Kotara Store Manager in August this year.
[78] Mr Hugo deposed that as Floor Manager he reported directly to Mr Booth. 50 All applications for annual leave were required to be approved by Mr Booth and floor managers did not have a right to ‘hire or fire’.51 It was Mr Hugo’s experience that where an employee informed him of their intention to resign, he would refer them to Mr Booth.52
[79] Mr Hugo stated that he and the applicant occasionally discussed his ambition to join the Police Force. In early or mid April 2011, the applicant informed him that he had received official notification to join the Police Academy in about a month’s time. At that time the applicant also informed him ‘he was “finishing” with Rebel before then.’ 53
[80] Following a management meeting convened on 15 April 2011 to discuss the applicant leaving the business, Mr Hugo deposed that he subsequently approached the applicant to ascertain his last day of work. He further deposed that the applicant seemed somewhat annoyed that the question had been raised by him because he said, ‘he (had) already told Mr Booth that his last (working) day would be 6 May 2011.’ As far as Mr Hugo was concerned the applicant was finishing up with Rebel on 6 May 2011 to pursue a new career. No mention had been made to him by the applicant that he proposed to go on annual leave and subsequently return to work if the Police Academy did not work out for him. 54
[81] Whilst Mr Hugo did not attend the staff drinks at the Honeysuckle Hotel on 7 May 2011, he did ask two team members to arrange a card and gift for the applicant because he was leaving. In that regard, Mr Ashley Treseder and Ms Haley Eather told him that the applicant wanted a gift card because ‘we didn’t have the right Tigers jersey.’ 55 Mr Hugo also recalled that the applicant made no comments to him that he might return to work if the Police Academy ‘didn’t work out’ during his last day at work on 6 May 2011. When it came for the applicant to leave work on 6 May 2011, Mr Hugo recalled he shook the applicant’s hand and said ‘good luck mate, see you on the road.’
[82] Mr Hugo deposed that on or about 13 May 2011, the applicant telephoned the Charlestown store and spoke to him. He said the applicant wanted to speak to Mr Sweeney to ask if he could come back ‘as he was back from the cops.’ The applicant also told him that he wanted to cut his holiday short. In that regard Mr Hugo deposed he responded with words to the effect ‘mate as far as I’m concerned, you resigned, we had a cake and everything, you need to talk to Craig.’ 56
[83] In cross examination, Mr Hugo confirmed that requests for annual leave were referred to the Store Manager, Mr Booth for approval. However he conceded that it was common practice for his direct support staff to confer with him first before being referred to Mr Booth. Similarly, he confirmed that if a staff member informed him that he or she proposed to resign he would refer them to Mr Booth.
[84] Mr Hugo also confirmed that when he conferred with the applicant in or about mid April 2011 concerning his acceptance into the Police Academy, he understood the applicant’s statement that he would ‘be finished’ with the respondent to mean that he was resigning and leaving his employment. In that regard he contended that he did not refer the applicant to Mr Booth because ‘there was no reason for me to send him to Craig. As far as I knew, it had already been spoken about and finalised.’ 57 He rejected the hypothetical notion that it was possible the applicant was finishing for a short period and may come back to work for the respondent.58 In support of that proposition he stated ‘the build-up and the events … led to finishing and going to the Police Force.’59 During the management meeting convened on 15 April 2011, Mr Hugo did not mention the fact that the applicant was leaving the business. Rather it was his evidence that the matter was brought up as part of the general business of the meeting.60 In conclusion Mr Hugo was adamant that he had not mistaken the applicant’s intentions when he had used the word ‘finishing up.’61
Submissions
Respondent
[85] It was the respondent’s case that the applicant had resigned and that resignation was effected at the initiative of the employee. Accordingly, there is no jurisdiction for the Tribunal to consider the applicant’s claim. It was also clear from the evidence that the applicant had never informed Mr Booth that he proposed ‘try before you buy.’ 62 With reference to the extract of the respondent’s Employee Handbook tendered at the request of the Tribunal during proceedings, Ms Bingham submitted that the resignation and termination provision in the Handbook ‘isn’t conclusive.’63 Ms Bingham referred to the decision of Gray J in Birrell v Australian National Airlines Commission64 concerning unilateral withdrawal of resignation which she submitted was what occurred in this case.
[86] Referring to the evidence, Ms Bingham submitted that Mr Booth was firmly of the opinion that the applicant was finishing up on his last work day prior to commencing annual leave. It was also Mr McPhail’s evidence that he was actually performing the duties of the applicant from June this year.
[87] With reference to the respondent’s letter to the applicant dated 20 May 2011 accepting his verbal resignation, Ms Bingham submitted it was irrelevant as to when that letter was sent provided it was sent prior to the expiration of the applicant’s leave. The correspondence simply confirmed that his resignation had been accepted and its unilateral withdrawal would not be agreed to. The evidence of Mr Booth, Mr Hugo, Mr Todd and Mr Sweeney supported the proposition that the applicant was not going to return. The only manager who purported to have any knowledge of the applicant’s intention to return at the expiry of his leave on 28 May 2011 was Mr Baus, who had no authority to accept or reject resignations or approve annual leave. 65
[88] Ms Bingham submitted that despite Mr Baus maintaining that he prepared his witness statement himself, it was also prepared in the same font as those prepared by the applicant and his brother, Mr John Leary. Simply stated, the evidence of Mr Baus could not be believed. 66 With respect to the applicant’s last day on 6 May 2011, Ms Bingham submitted that all the actions of the applicant and the respondent’s staff concerning the purchase of a gift, farewell card and the provision of a morning tea were consistent with somebody leaving the respondent’s employment.67
[89] Ms Bingham further submitted the applicant’s telephone discussion with Mr Hugo on 13 May 2011, concerning the request that ‘he wanted his job back’, was inconsistent with a person who did not resign. Ms Bingham urged the Tribunal to place little weight on the statements of Mr John Leary and Mr McPhail on the grounds that their typewritten and attached handwritten statements were almost identical, particularly the direct quotes attributed to the applicant. 68 Referring to the authorities relied upon by the applicant in submissions filed in these proceedings, Ms Bingham contended that the bulk of those authorities concerned circumstances where the employee had been forced or was under duress to resign their employment. Ms Bingham distinguished those cases from the present matter on the grounds that the applicant had resigned his employment freely and when the Police Academy did not work out for him, he made attempts to get his job back.69
Applicant
[90] The applicant’s case was that his employment was terminated at the initiative of the respondent in correspondence dated 20 May 2011. In that regard, the applicant contends he did not verbally resign his position with the respondent in April 2011, but rather, he took annual leave to attend the Police Academy. The applicant contends he made it clear to his co-workers and direct supervisors that he had not resigned from his employment at the time of taking leave in May 2011. 70 Central to the applicant’s case was that he was on approved leave during May 2011 and when he decided that the Police Academy was not for him he contacted the employer:
On 19 May 2011, while on annual leave, the applicant contacted the employer to inform them that he wished to return to work earlier then he had anticipated. At that time the applicant informed the respondent that he would no longer be resigning. 71 (emphasis added)
[91] The applicant’s written submissions state he received no correspondence prior to 20 May 2011 acknowledging his alleged resignation. The applicant’s case was that an intention to resign does not, of itself, constitute a resignation. 72 He further contended his direct manager, Mr Baus was aware of the details concerning his intention to resign if the Police Academy did not work out. The applicant was emphatic that he did not discuss the details of his potential resignation with Mr Booth. There were no contemporaneous notes held by Mr Booth, Mr Sweeney or Mr Hugo to support the proposition of resignation.
[92] In addition, the applicant contended that a written resignation was required consistent with company policy as understood by him at the time. Shortly stated, it was the applicant’s case that as of 20 May 2011, he had not resigned his employment either verbally or in writing and in any event, a verbal resignation was contrary to company policy.
Employee Handbook
[93] Shortly after the commencement of proceedings the Tribunal made the observation that neither party had filed the relevant Employee Handbook. Counsel for the respondent subsequently informed the Tribunal:
There isn't a policy regarding written terminations. It's a practice in the workplace. 73
[94] During the course of Mr Marshall's evidence, the Tribunal was told that he was given an Employee Handbook in 2003. 74 Later in the day Ms Bingham advised there was a Handbook, 'but there is no formal policy regarding requirement of resignation of writing'75 and would seek further instructions.
[95] The applicant's evidence was that he was unaware an Employee Handbook existed.
[96] Following the luncheon adjournment, Ms Bingham tendered an extract from the Rebel Sport Team Member Employment and Safety Handbook. 76Of immediate relevance to these proceedings is Section 2.16:
2.16 Resignation/Termination
Please forward your written resignation to your Supervisor/Manager. The period of notice depends on employment length or your Contract of Employment. Team members who fail to give notice may forfeit relevant termination pay.
[97] The evidence of Mr Baus was that he was aware of the Handbook's existence but did not receive one when he commenced his employment with the respondent. 77His recollection of the Handbook's position on resignation was, 'you need something on a bit of paper with your signature.'78
[98] Counsel for the applicant did not address the relevance of the Handbook in final submissions other that to contend a verbal resignation was contrary to company policy. Counsel for the respondent contended the evidence shows:
theposition of the management was that there wasn't a formal policy but the best practice was to make sure everything was in writing ... the employee handbook isn't conclusive. 79
Consideration
Did the applicant resign his employment?
[99] Resignation may be effected by the communication of proper notice consistent with the relevant contract of employment or industrial instrument. Resignation is a unilateral act. There is no legal requirement that compels acceptance by the receiving party despite custom and practice. In State of New South Wales v Paige, 80 the NSW Court of Appeal stated at [277]:
Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed.
[100] A normal incident of an employment relationship is that it is unilaterally terminable by either party upon appropriate notice. Shortly stated, an employee has no unilateral right to withdraw his or her notice of resignation once it has been given to the employer, including circumstances such as those evident in this case where the specified period of notice has not expired. The giving of notice operates to determine the contract by effluxion of the notice period: Birrell v Australian National Airlines Commission at [109]:
Moreover, there is no general duty on an employer to ensure that an employee using apparently unambiguous words of resignation intended to resign. The applicant was under no duress at the time he took the decision to resign his employment.
[101] The applicant firmly denied that in or around early April 2011, he told any of the respondent’s representatives he proposed to resign in order to pursue a long held ambition to become a policeman and enrol in the New South Wales Police Force Academy at Goulburn. The respondent contends the applicant was granted four week’s leave from 9 May 2011 and his resignation took affect from the close of business on 11 June 2011.
[102] The applicant stated his intention was to take annual leave and accrued long service leave so that in the event he was unsuccessful in his pursuits, he could return to his position at the respondent’s Charlestown store, notwithstanding the length of the course being approximately 34 weeks. In the alternative, it was his evidence that if he was successful, he would “be back to resign”. 81 There is certainly no evidence that the applicant put this proposal to the respondent in any written form for approval prior to commencing his annual leave. I do not believe an employee can simply assume his or her job will kept open for an extended period of time without that written approval.
[103] The written evidence tendered in proceedings by Mr Baus, Mr John Leary, Mr McPhail and the applicant was selective and makes no reference to the fact that a cake, gift and farewell card were organised for the applicant on his “last” working day. The applicant acknowledged in cross examination the farewell card contained statements concerning his departure from the respondent’s employment. 82 The applicant also denied the drinks function at the Honeysuckle Hotel was a farewell party.
[104] Mr Baus was adamant the contents of his statement were his own work. He contended employees were required to give two weeks notice in writing and in the event the applicant had told him he wished to resign, Mr Baus said he would have referred the applicant to Mr Booth. He was resolute he had told Mr Booth, Mr Sweeney and Mr Hugo that the applicant was going to “try out” the Police Force. Mr Baus subsequently acknowledged he was not present during the applicant’s discussions with Mr Booth, Mr Sweeney or Mr Hugo.
[105] Mr McPhail’s evidence was that he understood staff were required to provide written notice of resignation. The applicant did not resign, but rather took annual leave to attend the Police Academy. He expected the applicant would graduate and not return to work. Mr McPhail later acknowledged he was unaware whether the applicant would return.
[106] After claiming that the contents of his statement were his own words, Mr McPhail subsequently admitted the applicant had prepared his statement in concert with Mr John Leary. He simply signed it as if it was his own.
[107] The evidence of Mr John Leary in cross examination was that the applicant had prepared his statement and also Mr McPhail’s statement. Notwithstanding that admission, he denied he had collaborated with his brother concerning their evidence filed in these proceedings or, that together, they had concocted a story to enable the applicant to get his job back. Mr Leary refuted the evidence of Mr McPhail that he and the applicant had collaborated concerning his statement filed in these proceedings.
[108] Mr Leary also contended three unnamed staff who had resigned in the past year were required to provide written notice of resignation in accordance with the respondent’s policy of not accepting verbal resignations.
[109] Shortly stated, the evidence of Mr Baus, Mr John Leary, Mr McPhail and the applicant lacks credit.
[110] InNgo v Link Printing Pty Ltd, 83 a Full Bench of the then Australian Industrial Relations Commission reviewed the authorities relating to resignation of employment and adopted the following statement of the legal position determined by the English Court of Appeal in Sovereign House Security Services Ltd v Savage,84 that an objective test should be adopted when interpreting words which are on face value unambiguous. May LJ stated at [7]:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what might appear to be at first sight.
[111] A resignation by an employee is a repudiation of the contract of employment, that is, a fundamental breach. Accordingly, an employer is entitled to accept the repudiation immediately on face value, unless of course exceptional circumstances, such as a ‘heat of the moment decision’ exist. On the evidence in this matter, no such exceptional circumstance exists.
[112] On the material before the Tribunal, the applicant’s resignation, on the balance of probabilities, was accepted when given in early April 2011. The management meeting convened on 15 April 2011 to review manning issues, amongst other matters, supports that proposition.
[113] It is important to look at the context in which the resignation was given. The applicant was poised to embark on the first stage of achieving his ambition to become a policeman. The evidence of Mr Booth, Mr Hugo and Mr Sweeney was that they were aware the applicant had been accepted by the Police Academy in or around early April 2011. His strong desire to become a policeman was well known in the workplace.
[114] Prior to commencing four week’s leave from 9 May 2011, the applicant had made a number of statements to the effect that ‘he was finished with Rebel’, proposed to take annual leave before ‘finishing up with Rebel’ and ‘he was finishing with Rebel’ before commencing at the Police Academy. Those statements are not idle words, or words spoken under duress which the respondent knew or ought to have known were not meant to be taken seriously. They expressed an intention to resign to pursue a new career and were so understood and accepted as such by the respondent.
[115] Moreover, the evidence of Mr Booth and Mr Sweeney that the applicant wanted to ensure his entitlement to pro rata long service leave crystallised before his resignation took effect and, be taxed effectively upon termination, supports the proposition that the applicant gave the respondent verbal notice of resignation in or around April this year, effective from the completion of his annual leave in June.
[116] No submissions were put on behalf of the applicant as to the relevance of the material set out in Mr Sweeney’s affidavit.
[117] In my view, the evidence of the respondent concerning discussions the applicant had with Mr Booth, Mr Hugo and Mr Sweeney is to be preferred over the evidence of the applicant. The respondent’s version of events is more consistent with the prevailing circumstances at the time, which were that the applicant was poised to embark upon a lengthy training course to become a policeman.
[118] I am persuaded by the evidence of the respondent’s witnesses that the applicant had in fact resigned to pursue his studies at the Police Academy.
[119] Moreover, the manner in which a cake, gift, farewell card were afforded to the applicant and finally, the drinks arranged at the Honeysuckle Hotel on 6 May 2011 is no mere coincidence. Such gestures are normally synonymous with resignation. In any event, the applicant’s written submissions filed by Mr Gray set out in Exhibit A6 85 contradict the case pressed in these proceedings:
On 19 May 2011, whilst on annual leave, the Applicant contacted his employer to inform them that he wished to return to work earlier than he had anticipated. At that time, the applicant informed the Respondent that he would no longer be resigning. (emphasis added)
[120] That submission supports the uncontested evidence of Mr Sweeney that the applicant told him on 19 May 2011 words to the effect, ‘I want to get my job back’. Viewed collectively, the apparent conduct of the applicant, as described by Mr Booth and Mr Sweeney, evinces sufficient clarity to entitle the respondent to render that conduct unambiguous in the overall context of a genuine resignation.
[121] Given the applicant left the Police Academy after just a few days, it was not until 18 and 19 May 2011 that he sought his job back. He did not make swift contact with the respondent shortly after leaving the Police Academy or immediately seek to either formally cut short his annual leave or withdraw his ‘resignation’. In that regard, the legal principles concerning the withdrawal of notice of termination were also considered by Gray J in Birrell at [110]:
It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment to employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties.
Conclusion
[122] Having considered all the evidence and materials before me, I am unable to conclude the applicant’s employment was terminated at the initiative of the respondent.
[123] In this matter, the evidence of the respondent is preferred over the applicant. It therefore follows that the respondent did not terminate the applicant’s employment but rather, the applicant terminated his own employment by resignation.
[124] The applicant’s resignation cannot be characterised as anything other than a genuine resignation. As there was no termination at the initiative of the employer there is no jurisdiction to deal with this matter. Accordingly, the application is dismissed.
COMMISSIONER
Appearances:
For the applicant, Mr P Santone, of counsel.
For the respondent, Ms S Bingham, of counsel for Rebel Sport Limited T/A Rebel Sports.
Hearing details:
2011
Newcastle
September 20 and 21
1 Submissions Outline para 22 of Exhibit A6
2 Para 19 of Exhibit A6
3 Transcript at para PN145
4 Transcript at para PN155-159
5 Para 18 of Exhibit A2
6 Transcript at para PN298-300
7 Transcript at para PN310
8 Transcript at para PN313
9 Transcript at para PN328
10 Transcript at para PN364
11 Transcript at para PN366 & 368
12 Transcript at para PN370
13 Transcript at para PN410
14 Transcript at para PN597
15 Para 14 of Exhibit A3
16 Para 15 of Exhibit A3
17 Transcript at para PN610
18 Transcript at para PN646
19 Transcript at para PN729
20 Transcript at para PN731-732
21 Transcript at para PN741-742
22 Transcript at para PN746-749
23 Para 11 of Exhibit A5
24 Transcript at para PN1260
25 Transcript at para PN1287
26 Transcript at para PN1314
27 Transcript at para PN1316
28 Transcript at para PN1337
29 Transcript at para PN1341
30 Transcript at para PN1343-1345
31 Transcript at para PN1361
32 Para 4 of Exhibit R1
33 Para 7 of Exhibit R1
34 Para 3 of Exhibit A1
35 Transcript at para PN799
36 Transcript at para PN819
37 Transcript at para PN854-855
38 Para 6 of Exhibit R2
39 Para 8 of Exhibit R2
40 Para 10 of Exhibit R2
41 Transcript at para PN971
42 Transcript at para PN903
43 Transcript at para PN937
44 Transcript at para PN971 & 974
45 Transcript at para PN975
46 Transcript at para PN977
47 Transcript at para PN1043
48 Transcript at para PN1044
49 Transcript at para PN1061
50 Transcript at para PN1145
51 Paragraph 4 of Exhibit R3
52 Transcript at para PN1155
53 Paragraph 8 of Exhibit R3
54 Paragraph 9 of Exhibit R3
55 Paragraph 11 of Exhibit R3
56 Paragraph 14 of Exhibit R3
57 Transcript at para PN1167
58 Transcript at para PN1172
59 Transcript at para PN1173
60 Transcript at para PN1182
61 Transcript at para PN1195
62 Transcript at para PN1378
63 Transcript at para PN1379
64 (1984) 5 FCR 447
65 Transcript at para PN1385
66 Transcript at para PN1385
67 Transcript at para PN1386
68 Transcript at para PN1388
69 Transcript at para PN1389
70 Exhibit A6 para 18-19
71 Exhibit A6 para 21
72 Exhibit A6 para 31: P O’Meara v Stanley Works Pty Ltd (U2006/2874) (see Exhibit A6 para 11)
73 Transcript at para PN16
74 Transcript at para PN105
75 Transcript at para PN113
76 Exhibit R2
77 Transcript at para PN1232
78 Transcript at para PN1234
79 Transcript at para PN1378-79
80 [2002] NSWCA 235
81 Exhibit A2 para 12
82 Transcript at para PN325
83 PR7005
84 [1989] IRLR 115
85 Exhibit A6 para 21
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