Mr Adrian Payne v Nova International Education Pty Ltd T/A Nova Institute of Technology

[2015] FWC 4009

[2015] FWC 4009

FAIR WORK COMMISSION

DECISION

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

Mr Adrian Payne
v
Nova International Education Pty Ltd T/A Nova Institute of Technology
(U2015/3579)

COMMISSIONER ROE MELBOURNE, 15 JUNE 2015

Application for relief from unfair dismissal.

[1] The following is a slightly edited version of the decision which was given on transcript at the conclusion of the proceedings on 15 June 2015.

[2] Mr Payne was employed by Nova International Education Pty Ltd (Nova) as the Program Manager (Business Management) from July 2012 until either 16 December 2014 or 20 February 2015. It is accepted by the parties, and I agree, that Mr Payne is protected from unfair dismissal and that the ending of his employment was not for reasons of performance, conduct or redundancy and that Nova International Education Pty Ltd is not a small business.

[3] The issues to be determined are:

● Did Mr Payne resign his employment or was he dismissed at the initiative of the employer?
● If Mr Payne was dismissed was that dismissal unfair?

[4] The parties agree that in early November 2014 there was a discussion between Mr Payne and the Principal Executive Officer, Mr Randhawa, during which Mr Payne asked about the financial position of the company and the audit by the State Government. Mr Randhawa explained that the company was in some financial difficulty and that there was some doubt about the future of the company and that the company was trying to sell some assets. Also in that conversation Mr Payne raised with Mr Randhawa a recent unfavourable performance review of him by Ms Papastathopoulos and her proposed performance improvement plan which Mr Payne disputed. Mr Randhawa told Mr Payne not to worry about that as there were bigger concerns for the company at that time.

[5] The parties also agree that Mr Payne attended a farewell party for himself and another employee on 16 December 2014. Mr Payne was paid approximately two weeks of outstanding annual leave. The school resumed classes on 12 January 2015 and if it was business as usual Mr Payne would have been in attendance for those Business classes. Mr Payne had a number of conversations with Mr Madaan, General Manager and Director, during January and February. Those conversations were mainly about superannuation but Mr Payne also asked Mr Madaan about how the business was going. In a conversation on 13 February 2015 Mr Payne was told by Mr Madaan that the business was going fine and that its scope of registration had been expanded. On 19 February 2015 Mr Payne accused Mr Madaan of misleading him about the state of the business and Mr Madaan told him to speak to Mr Randhawa which he did on 20 February 2015. Mr Payne told Mr Randhawa on 20 February 2015 that he had been unfairly dismissed as he had been misled about the state of the business. Mr Payne asked for his job back and Mr Randhawa said that was not possible as he had accepted the verbal resignation of Mr Payne to Mr Madaan and had employed another person to perform Mr Payne’s duties. It was the uncontradicted evidence of Mr Randhawa that the person was receiving the same salary as previously paid to Mr Payne.

[6] Mr Payne gave evidence that the farewell party was about the end of the year and that people understood that he was going on annual leave. Mr Payne said that he was told not to tell other workers about the cloud over the future of the company and to say he was going on annual leave. Mr Payne said that in the November 2014 meeting Mr Randhawa suggested that he consider looking for other work given the uncertainty over the future of the company. Mr Payne does not suggest that Mr Randhawa ever said that the company was going to close but he believed that it was reasonable to infer that this was a likely outcome of the difficulties. Mr Payne says that he was concerned about not receiving his annual leave entitlements and was also concerned that he might return to work in the New Year and end up working without being paid. Mr Payne says that this is the reason why he accepted the annual leave payment and did not return to work after training began again on 12 January 2015. Mr Payne says that the performance issue raised in November also led him to be concerned that he might be targeted if the opportunity arose due to the company being in difficulties.

[7] Mr Randhawa gave evidence that the other workers were aware of the financial and regulatory difficulties of the company. He gave evidence that the other workers returned to work as normal after the 12 January 2015. Mr Randhawa denies that he told Mr Payne to consider looking for other work. Mr Madaan gave evidence that Mr Payne told him that his last day of employment was going to be the 19 December 2014 but later changed this to be 16 December 2014. He gave evidence that Mr Payne attended the farewell party for Mr Payne and another worker Amy on 16 December 2014 and that Mr Payne gave a farewell speech. Mr Madaan confirmed the following in an email to other managers dated 11 December 2014

“I’ve spoken to Adrian and he is going to mark all the assessments today. He’ll be coming in for next week Monday and Tuesday and for the last class for Certificate IV in Business and he wants to finish his job on Tuesday next week. We’ll get together on Tuesday for the farewell party for Amy and Adrian in the boardroom Level 5 at 4pm on Tuesday.” 1

[8] There were a number of emails about the farewell arrangements in evidence. One of those emails is dated 11 December 2014 and it is from Mr Payne to a number of employees.

“Re farewell gifts to Amy and Adrian

Hello All

I’ll be finishing up on Tuesday 16th December. No tears or presents please!!” 2

[9] Another email of the same date from Bo Chao to a number of employees said that “our loving colleagues and friends Amy and Adrian have decided to move on with their new adventures in life. Both will be leaving soon. I will miss you guys a lot! Although crying inside I wish them all the best luck for the future! I would like to organize some special farewell gifts for them. Everyone is welcome to come and chip in.” 3

[10] There were other emails of the same date headed “Nova Christmas Gathering” which referred to the Christmas gathering and that “it could also give us an opportunity to say our good-byes to Amy and Adrian.” 4

[11] Mr Payne submits that he was effectively dismissed on 20 February 2015 when he asked for his job back and Mr Randhawa refused. I reject that submission. In my view the actions of Mr Payne do not suggest that he was still in employment at that time. He does not argue that he was on any sort of approved leave from 12 January until 20 February 2015. Mr Payne agrees that he did not raise the issue of returning to work at any time in the various conversations he had with Mr Madaan during January and February 2015 even though he knew that the college was operating and training students and was told by Mr Madaan that things were improving. Other employees were notified that he was leaving his employment on about 16 December 2014. Nova acted as if the employment had ended by continuing its business as usual and appointing someone else to Mr Payne’s role. In my view the employment relationship effectively came to end on or about 16 December 2014. A period of annual leave was paid.

[12] When the employment came to an end on or about 16 December 2014 did it come to an end because of the actions of Mr Payne or was it at the initiative of the employer? I am satisfied that Mr Payne was aware of the email correspondence about the fact that he was finishing up with the company on 16 December 2014. He was copied into those emails and responded to them by confirming that he was finishing up on 16 December 2014. I am not satisfied that this could be understood to be finishing up for the year. It was clearly a response to emails about farewell gifts for two employees: himself and Amy. It could not have been about finishing up for the year as all the other employees who were also copied in to the email were finishing up for the year but the other employees were not being given farewell gifts.

[13] I am satisfied that neither Mr Randhawa nor Mr Madaan took any actions which had the effect of ending the employment relationship. I am satisfied that Mr Payne had a choice. Remain with the company and see if the trading difficulties of which he was aware were resolved and also if any performance issues could be dispelled or leave the company. I accept that Mr Payne was fearful that if he did not leave he might not get his annual leave entitlements and that he was concerned that the company might not survive its difficulties. However, it is not suggested that Mr Payne was ever told that the company would be going out of business. Mr Payne made a judgment and he decided to end the employment relationship.

[14] I am not satisfied that Mr Randhawa or Mr Madaan misled Mr Payne about the future prospects of the company. The prospects were not good in November 2014 but as it turned out the situation improved. Even if I am wrong about this the extent of any misleading information about the future of the company was not sufficient to mean that Mr Payne’s resignation on or about the 16 December 2014 was a constructive dismissal.

[15] I am satisfied that Mr Payne resigned from his employment and as a consequence he cannot have been unfairly dismissed. The application is dismissed and an Order will be published.

COMMISSIONER

Appearances:

Mr. A Payne appeared for himself.

Mr. V Randhawa appeared for the Respondent.

Hearing details:

2015

Melbourne

15 June

 1   Exhibit N5

 2   Exhibit N3

 3   Ibid.

 4   Ibid.

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