Mr Arun Galani v OneSubsea Australia Pty Ltd
[2015] FWC 2921
•30 APRIL 2015
| [2015] FWC 2921 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Arun Galani
v
OneSubsea Australia Pty Ltd
(U2015/294)
COMMISSIONER CLOGHAN | PERTH, 30 APRIL 2015 |
Application for relief from unfair dismissal - jurisdictional objection.
[1] This is an application to the Fair Work Commission (Commission) by Mr Arun Galani (Mr Galani or Applicant) seeking a remedy for alleged unfair dismissal from his former employer, OneSubsea Australia Pty Ltd (Employer).
[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).
[3] In response to the application, the Employer asserts that the Applicant is not protected from unfair dismissal because:
- the Applicant has not been dismissed;
- the Applicant resigned from his employment effective 6 January 2015.
[4] The Employer’s jurisdictional objection was dealt with by written submissions and a hearing pursuant to s.397 of the FW Act.
[5] At the hearing, the Applicant represented himself and gave evidence on his own behalf.
[6] With leave, the Employer was represented by Mr P Brown of counsel. Evidence was given on behalf of the Employer by:
- Mr F Powell, Financial Controller; and
- Ms D Ross, Regional Human Resources Manager.
[7] This is my decision and reasons for decision with regards to the Employer’s jurisdictional objection.
RELEVANT LEGISLATIVE FRAMEWORK
[8] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”
[9] The meaning of “dismissed” is as follows:
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.”
RELEVANT BACKGROUND
[10] Mr Galani was employed by the Employer between 25 July 2013 and 6 January 2015 as Accounts Assistant (Revenue).
[11] Mr Galani completed his probationary period of three (3) months on 25 October 2013. The Probation Review form notes that he was happy with the support, including moral support, provided by the Supervisor/Manager during the three (3) months. The conclusion reads “thank you very much for all the assistance provided” 1.
[12] Between November 2013 and March 2014, various matters occurred which appear to have led to the Applicant making an application to the Commission on 3 April 2014 (AB2014/1158).
[13] From April 2014 to August 2014, the Applicant submits that he was unfit for work and provided medical certificates to the Employer 2.
[14] Mr Galani returned to work in August 2014 initially working three (3) days per week. On return to work, the Employer indicated that it would recommence its concerns with the Applicant’s work performance.
[15] On 3 December 2014, Mr Galani made a complaint to Ms Ross regarding what he described as “improper behaviour by some employees” and attached a “log of incidents”. At the same time, Mr Galani submitted a medical certificate stating that he was unable to attend work for the period 4 December 2014 to 5 January 2015.
[16] Ms Ross completed an investigation into Mr Galani’s allegations on or about 23 December 2014.
[17] On 5 January 2015, Mr Galani sent an email to Ms Ross confirming his return to work on 6 January 2015 and seeking a meeting with Mr Powell “away from the desk before I start work”. The email was sent to Ms Ross but copied to Mr Powell.
[18] Mr Galani returned to work on 6 January 2015 and met Ms Ross and Mr Powell. The content of the meeting is at the “heart” of the dispute of whether Mr Galani resigned and was not dismissed on 6 January 2015.
CONSIDERATION
[19] To determine whether Mr Galani is protected from the unfair dismissal provisions of Part 3-2 of the FW Act, it is necessary to determine whether he has been dismissed.
Was Mr Galani dismissed in accordance with s.386 of the FW Act?
[20] Ms Ross sets out in her statement, at paragraphs 11 to 16, her detailed evidence as to the meeting on 6 January 2015. The Applicant’s response to this evidence is that he neither agrees nor disagrees 3.
[21] Ms Ross’ evidence, at paragraphs 11 to 16, is that she and Mr Powell attended the meeting on 6 January 2015. At the meeting, Ms Ross indicated that she wanted to discuss two (2) items: the results of her investigation into Mr Galani’s complaints of 3 December 2014 - and secondly, Mr Galani’s “ongoing poor performance” 4.
[22] Ms Ross informed Mr Galani that she found no inappropriate behaviour by the employees involved in his complaint and the Employer considered the matter closed.
[23] Secondly, when Ms Ross turned to the issue of Mr Galani’s poor performance, the Applicant requested that the meeting be terminated as he wished to speak to Mr Powell alone. Ms Ross acceded to the Applicant’s request and left the room 5.
[24] Mr Powell’s evidence is that he commenced the discussion by advising the Applicant that he needed to take him through the specifics of the performance issues. Mr Powell’s evidence is that “Arun [Mr Galani]...said to me ‘Frank, I want to resign’. This took me by surprise. I then said to him, ‘If it is the case you wish to resign, then there’s no point in talking about the performance issues. I’ll just check with Doreen [Ms Ross] as to what needs to be done”. 6
[25] Mr Galani’s written response to Mr Powell’s evidence is “I was so upset and I had no other choice but just had a thought that I will resign as I cannot handle any more bullying by my seniors and I told Frank [Mr Powell] about it. I said I will let you know very soon about resignation. Frank went out the room and then came back and said I have to resign now or else you will be issued a termination notice” 7 (my emphasis).
[26] Mr Galani’s witness statement is that he was “forced to think about resigning”, “I didn’t think of resigning when I came to meet Frank. I was there to discuss options”. Further, “I didn’t have a clue that I will be forced to have a conversation with Doreen regarding performance in spite of reminding her again and again that I have just recovered from my illness”. With regard to resigning, Mr Galani’s written evidence is “I told Frank I will think about it and send you the soft copy on a letter head” and that he was forced to resign or be issued with a termination notice 8.
[27] Mr Powell’s evidence is that on being informed by Mr Galani that he wanted to resign, he left the meeting room and was advised by Ms Ross to obtain a written letter of resignation. On advising Mr Galani of this requirement, Mr Powell’s evidence is that:
“I then saw him reach into a satchel and pull out a typed document which was a letter of resignation...He handed it to me. It was unsigned I looked at it and said give me a minute.
[Mr Powell showed the letter of resignation to Ms Ross]...She looked at it and said to me, ‘well if he wants to resign, he will have to sign and date it’.”
[28] Mr Powell returned to the meeting room and advised Mr Galani of Ms Ross’ requirements. Mr Galani made some annotations to the letter of resignation and signed it. The letter of resignation reads:
“Hi Frank
I am writing to inform you that I will be resigning [effectively 6/01/15 in handwriting] from my position as Assistant Accountant (Revenue).
If I can be of any help during this transition, please let me know.” 9
[29] In cross examination, Mr Galani stated that when he attended the meeting with Mr Powell it was to discuss his options 10. However, when asked was resignation one of those options, he replied “no”11. When it was put to Mr Galani that, in attending the meeting with a letter of resignation, it must have been an option, the Applicant again said it was not12. However, Mr Galani agreed that, at some point, he said “I want to resign”13.
[30] When pressed what were his “options”, Mr Galani could only name “go on lighter duties or stuff” 14 or “lighter duties or any other duty”15.
[31] Mr Galani concedes that Ms Ross did not raise the issue of his termination of employment before she left the meeting 16. Mr Galani also concedes that Mr Powell did not raise the issue of the termination of the applicant’s employment up to the time of Ms Ross leaving the meeting room17.
[32] The evidence is that, up until Mr Galani’s stated that he wished to resign, neither Ms Ross nor Mr Powell had raised the issue with him of Mr Galani resigning 18.
[33] When it was put to Mr Galani in cross examination that, in light of neither Ms Ross nor Mr Powell putting to him that his employment would be terminated, he could not have been forced to resign, Mr Galani responded that he wanted to “give it to you [Mr Powell] afterwards, in a day or two” 19. It was at this time, Mr Galani alleges that the Employer threatened to terminate his employment.
[34] It is necessary to consider whether the Applicant resigned in the course of a “heated argument”. The only direct evidence from Mr Galani is:
“Well, sir, I want to put to you that there was no heated argument. Do you want to respond to that proposition? I’m saying to you there was no heated argument?---Yes, I - I did say the heated argument because in spite of requesting three or four times in a nice way to Doreen Ross that, you know, I just want to meet Frank Powell, and - but then I was not allowed, and in that - in that - during that time, she said, “No, but you have to listen”, so I would say that is a heated argument because it was not a two-way conversation, so that’s what happened.” 20
[35] While Mr Galani may not have wanted to discuss his performance issues with Ms Ross, I find nothing unusual or inappropriate in the Manager Human Resources relaying to a complainant, the outcome of her investigation into Mr Galani’s complaints. Further, being advised of the outcome of the investigation is most probably one-way conservation, however, it cannot, in my view, be described as a “heated argument” as contended by the Applicant. For this reason, I am unable to find that there was a “heated argument” during the discussion on 6 January 2015.
[36] Having considered the evidence both written and verbal, I consider that there was nothing untoward or unreasonable in the Employer’s wish to address the Applicant’s complaints of 3 December 2014 and his poor performance on return to work.
[37] Clearly, Mr Galani did not want to listen to the findings of Ms Ross’ investigation into his complaints. The fact that she did not find the complaints sustained, was most probably less than ideal from the Applicant’s perspective. However, irrespective of this outcome, Mr Galani wanted to move quickly into a separate discussion with Mr Powell; which happened.
[38] I am satisfied, on the evidence, that when Mr Powell commenced the discussion with Mr Galani regarding his performance, the Applicant “cut to the chase” and stated that he wanted to resign.
[39] I am not persuaded that Mr Galani, in the time leading up to the meeting on 6 January 2015, did not consider the option of resigning. The fact that Mr Galani was able to immediately access a resignation letter in his brief case at the meeting, clearly demonstrates it was an option. It was an option ready to be accessed - everything else (complaints and performance) was irrelevant.
[40] When weighing the evidence of Mr Galani’s request to meet only with Mr Powell, to have the meeting away from his desk and before starting work, a vague list of employment “options” and having a written letter of resignation, I am unable to conclude with the Applicant’s evidence, that he was forced to resign.
[41] I also find, on the evidence, that the Employer took no action on 6 January 2015, which was intended to bring the employment relationship to an end as set out by the Full Bench in P O’Meara v Stanley Works Pty Ltd (PR973462) and consistently applied by the Commission. For the reasons outlined above, I also specifically find that Mr Galani did not resign under the threat of termination of employment.
[42] Mr Galani tendered his resignation verbally, the Employer sought for it to be in writing and dated. There was nothing unwise or untoward in this course of action.
[43] Mr Galani may have had grievances with his Employer but I find that he resigned and was not forced to resign. Accordingly, he was not dismissed pursuant to s.386(1) of the FW Act. Having not been dismissed, the Applicant has not met the statutory requirements of s.385 of the FW Act and his application must be dismissed.
COMMISSIONER
Appearances:
A Galani, the Applicant, on his own behalf.
P Brown, of counsel, on behalf of the Employer.
Hearing details:
2015:
Perth,
21 April.
1 Exhibit A1
2 Exhibit A1
3 Exhibit A2
4 Exhibit R4
5 Exhibit R4
6 Exhibit R3
7 Exhibit A3
8 Exhibit A1
9 Exhibit R3
10 Transcript PN161
11 Transcript PN163
12 Transcript PN164
13 Transcript PN164
14 Transcript PN198
15 Transcript PN203
16 Transcript PN212
17 Transcript PN213
18 Transcript PN215
19 Transcript PN220
20 Transcript PN238
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