Mr Bruce Carroll v Amin Investments (No 5) Pty Ltd T/A Commodores Galore & More
[2010] FWA 4368
•11 JUNE 2010
[2010] FWA 4368 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Bruce Carroll
v
Amin Investments (No 5) Pty Ltd T/A Commodores Galore & More
(U2010/5679)
COMMISSIONER STEEL | ADELAIDE, 11 JUNE 2010 |
Application for unfair dismissal remedy.
[1] This matter arises from the application for unfair dismissal remedy filed on 3 February 2010 pursuant to s 394 of the Fair Work Act 2009 (“the Act”) by Mr Bruce Carroll (“the applicant”) in relation to the alleged termination of his employment by Mr Amin Chehade the proprietor of Amin Investments (No.5) Pty Ltd (“Amin Investments” or “the respondent”).
Background to the termination
[2] The applicant was employed in the business by the former owner since 22 December 1997. Mr Chehade of Amin Investments became the owner of the business in about March 2008. The applicant commenced work for the respondent on 1 April 2008 on a new contract of employment.
[3] The applicant was employed as manager of the car yard which is in the business of selling second-hand cars. The applicant was responsible for the day-to-day operations of the car yard including sales, dealing with the public generally and some administration. The business employed two other employees.
[4] The applicant is 69 years of age and is a qualified and licensed car yard manager. He has a significant hearing problem in that he has deafness in one ear and has limited hearing in the other. He wears a hearing aid.
[5] Mr Chehade is 72 years and has some residual health issues from having a stroke some seven years ago and has some difficulties in talking.
[6] The tribunal in hearing this matter experienced some minor difficulties in providing facility for the applicant to hear all the evidence and be aware of the process. However the tribunal is confident that both parties were provided adequacy of opportunity to provide their evidence and submissions in full awareness of the opposing case.
[7] The applicant asserts that he was approached by Mr Gary Cooper, an associate of Mr Chehade, on 27 January 2010, and in a conversation with Mr Cooper was told that he was being sacked from his job effective two weeks from that date.
[8] In a subsequent conversation that day with Mr Chehade, the applicant asserts that Mr Chehade effectively confirmed his dismissal by asking him to nominate what is employment entitlements would amount to in financial terms and that Mr Chehade agreed to pay that amount.
[9] Two days later the applicant approached the respondent and advised him as to what he considered he was entitled to in respect to the employment provisions of superannuation and holiday pay and asked when he had to finish work. The respondent is asserted to have told him he was to finish on 9 February 2010 as that was the end date of the pay period. Mr Carroll worked up to and including that date at the car yard and subsequently received cheques for the nominated superannuation, holiday pay and outstanding wages.
[10] The applicant submits his experience was an unfair dismissal as it was not consistent with the Small Business Fair Dismissal Code (SBFDC) in that he asserts his employment was terminated on the respondent's initiative pursuant to s 386 (1) (a) of the Act and as such that the respondent has breached s 388 (2) of the Act and did not comply with the SMFDC as follows:
- The applicant did not engage in any misconduct to justify immediate dismissal for the purposes of the SBFDC.
- In the event that it were submitted and found that the elements of the applicant's behaviour led to his immediate dismissal the applicant has never engaged in conduct that was sufficiently serious to justify dismissal.
- The respondent breached the SBFDC in that (a), the respondent failed to give the applicant a reason for why he was at risk of dismissal and (b) the respondent failed to provide a verbal or written warning to the applicant that he was at risk of the dismissal.
- The respondent breached the SBFDC in that no meeting was held to discuss the potential for the applicant to be dismissed in which the applicant could have a witness present.
[11] The applicant seeks an order that the respondent pay him the maximum compensation available under the Act.
[12] The applicant now describes himself as “retired’ and is receiving a government pension. He asserts that he has looked for work but is unable to find further employment. The tribunal received no submissions on the applicant’s current status as to reinstatement.
[13] The respondent in this matter contends that this application should be dismissed. They contend that the termination of employment was not at the initiative of the respondent as required by s 386 (1) of the Act.
[14] This matter therefore is mainly concerned with the content and effect of three conversations between the applicant and two other parties, one being the respondent, as to whether a dismissal can be identified that conforms with the requirements of the Act.
Evidence
[15] Mr Carroll gave evidence. He was a robust witness given to a great surety as to the nature and content of the relevant conversations. He provided candour as to his nature and demeanour of the events in question. He is significantly affected by his hearing limitation and attempts to compensate for its deficiencies at times.
[16] It was clearly illustrated by the arrangements that were required to be applied to facilitate his evidence and involvement in the proceedings that he at times could not hear clearly or understand the conversations of others. Proximity and amplification by a speaker was crucial to his understanding of the proceedings and evidence.
[17] Mr Cooper gave evidence for the respondent in a forthright manner.
[18] Mr Chehade gave evidence on his own behalf. He has had a series of cerebral haemorrhages over recent years and referred to a consequent problem with his throat and voice. However, he generally provided his evidence clearly with candour and his perception of events was defined.
[19] The tribunal found both the protagonists in this matter venerable individuals both affected by the events in question.
Factual circumstances of this matter
[20] The tribunal has had regard to all the documentary material, the witness evidence and submissions in consideration of the facts in this matter. In doing so the tribunal has had regard to the requirements of the Act and the probability of the events in question.
[21] The respondent’s business was for sale and the employees, notably the applicant, were aware that it could be sold at anytime and hence their future employment may be in jeopardy.
[22] The applicant had a history of employment with the previous owner and had a considered view the business had suffered and deteriorated under the direction of Mr Chehade. The applicant was not happy about these events and was vocal as to his feelings.
[23] Before the events in question the applicant and other employees were aware Mr Cooper was involved with Mr Chehade and it had been speculated by them that Mr Cooper was to play a future role in the business.
[24] Mr Cooper attended the car yard on 27 January 2010 in the capacity of a prospective investor in the business. It is not in evidence he had permission or instruction from the respondent that he should be in the yard at that time or what he could or could not do on the occasion of his visit.
[25] The applicant and Mr Cooper were involved in a conversation, the substance of which is factually contentious. They do not agree with the location of this conversation or its content. The applicant asserts Mr Cooper gave him two weeks notice of his sacking. Mr Cooper denies giving notice to the applicant and asserts he indicated to the applicant that “he did not pay his wages” with the inference he could not sack him.
[26] What is evident from the encounter is that the applicant, despite never being advised that Mr Cooper had any role in the business at anytime, considered he had been sacked by Mr Cooper with two weeks notice. He accepts that Mr Cooper was not his employer but thought he had the power to do so.
[27] At the end of this encounter the applicant was upset and angry. He admits to being loud during the conversation. His personal plans for his retirement planning now appeared disrupted and this would potentially have detrimental financial consequences for him.
[28] He was critical of the respondent’s business skills and considered that the respondent was responsible for his sacking. He was of the view he would not work for the respondent again because of this treatment.
[29] With this background a further encounter and conversation, this time between the respondent and the applicant, occurred later that same day when Mr Chehade attended the car yard.
[30] The applicant in his evidence admits to being agitated and was yelling at the respondent. 1 He accused the respondent - “If you’re sacking me, I want what I‘m entitled to”, and went on to berate the respondent.
[31] The applicant was particularly worried he would not be paid his superannuation which he knew at that time was in arrears. The applicant admits that the respondent attempted to interrupt him to say something but the applicant would not listen as he was angry and upset.
[32] This conversation is illustrated in transcript by the following:
“You wouldn't listen to him at all. You just kept on yelling and abusing him?---I wasn't abusing him. I might have been yelling, but I wasn't abusing him.
You were calling him a wolf in sheep's clothing?---Yes.
It's hardly complimentary. He was trying to ask you what you were talking about, but you just wouldn't listen, would you?---No.
You didn't give him an opportunity to actually respond to you, did you, because you were so angry. You were in a fit of rage?---I was angry. I wouldn't say I was full of rage, but I was angry and upset.
He was trying to find out what was going on, wasn't he? He was asking you, "What are you talking about" and you wouldn't listen?---I think he already knew what was going on. I think he already knew that.
…
You said in your evidence-in-chief in answer to Ms O'Neal's questions, you can't recall what he was saying, but you recall him trying to interrupt you, and you recall he did try to say something to you?---Yes, he may have tried to say something, yes.
But he couldn't, could he, because you were in this rage, and you were yelling and screaming and he couldn't get a word in. Isn't that right?---I said what I wanted to say, and then I walked into the office.” 2
[33] The respondent asserts the applicant said he would not work for him again and words to the effect that he was leaving no matter what. 3
[34] In this apparent conversation the respondent eventually waved his hands in the air and said to the applicant “you tell me what I owe you”. This is referred to by the applicant as follows in his Statement in Response to the Respondent’s Statement 4;
“He made some grunt noises and put his hands in the air.”
and again in his cross examination;
“He was waving his hands and then he sort of waved like that as though he waved me away.” 5
[35] Mr Chehade in his Witness Statement 6 stated:
“There was nothing I could do or say that would change Bruce’s mind so I gave up put my hands in the air.”
[36] The applicant further refers to this gesture:
“He went like that and waved. He often did sometimes. When he didn’t agree with something, he’d wave his arms around.” 7
[37] The applicant ended the conversation by walking into the office away from the respondent. The applicant agrees that the respondent did not at any time tell him he was sacked. 8
[38] The respondent and applicant met in the yard some days later. The applicant thinks it was approximately two days and the respondent says it was more than five days later. The applicant was calm and the conversation was focused on the calculations by the applicant of quantum in regard to superannuation, annual leave and wages outstanding to him.
[39] Neither party took the opportunity to review the previous encounters or elaborate on the issue of separation from employment of the applicant.
[40] The applicant and the respondent differ as to who raised the issue of the final day of employment, but both understood from the meeting that the final day would be 9 February 2010.
[41] On that day the respondent gave to the applicant a bank cheque for superannuation entitlements. A few days later a cheque for outstanding employment provisions was provided by the respondent. There is no argument as to the quantum of those payments.
Consideration
[42] Both parties cited the authority of Mohazab v Dick Smith Electronics Pty Ltd (No.2) 9 in respect to their submissions as to determining the circumstances where an employer’s actions result in a termination of employment of an employee.
[43] Mr Healy, for the respondent, submitted that further case law had refined the approach in these matters such as the ABB Engineering Constructions Pty Ltd v Doumit. 10 In that decision a full bench of the Australian Industrial Relations Commission (AIRC) was directed primarily to identifying whether the employer’s conduct was the real and effective initiator of the termination of employment relationship, but must do so by weighing the evidence objectively.
[44] In the ABB Engineering decision the full bench stated at p 12:
“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 determination 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 be the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’ 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 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.”
[45] In the matter of O’Meara v Stanley Works Pty Ltd 11 a full bench of the AIRC at para 23 determined after surveying earlier decisions:
“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.”
[46] Ms O’Neill, for the applicant, submitted the termination of the employment was at the respondent’s initiative pursuant to the section 386(1) (a) of the Act and in breach of the provisions of the SBFDC.
Was there a dismissal?
[47] In examining the evidence as to the events in this matter and taking into consideration the need for an objective consideration and review of the conduct of the parties in respect to the termination of employment the tribunal cannot identify an act or direction by the respondent employer to give effect to the attendance by Mr Cooper at the work site and to convey to the applicant that he was dismissed, or was going to be dismissed.
[48] Mr Carroll certainly took exception to the conversation with Mr Cooper. What in fact was said is not reliably determined on the evidence, given the circumstances where Mr Carroll has a significant hearing problem and was physically upset by what he perceived he had heard. Mr Cooper was not his employer yet the applicant accepted that Mr Cooper was authorised to sack him.
[49] The subsequent conversation by the applicant with Mr Chehade was significantly one-sided. It transpired on the basis the applicant was upset at being sacked, felt anger and frustration and has admitted to yelling and not listening to the respondent’s attempts to talk to him. By the applicant’s admissions he insulted the respondent and told him he would not work for him again.
[50] It is common between the parties the respondent gave up the attempt to converse with the applicant by his usual manner of lifting his hands into the air. It is also apparent that the respondent did not at that time know of the conversation between the applicant and Mr Cooper.
[51] Taking the above into consideration it is the tribunal’s view the applicant effectively disavowed or repudiated his employment in this conversation. However ill-conceived the reason, he demonstrated that he wanted the employment relationship to end and avoided by his behaviour any attempt by the respondent to discuss the reasons for his behaviour and perception. The employer accepted the applicant’s repudiation.
[52] On that basis there was no obligation on the respondent to seek to further review or recover this situation. The respondent did not endeavour to do so and the further conversations as to date of termination and payments are found not to disturb the scenario instigated by the applicant’s conduct. The applicant by his own actions brought his employment to an end.
[53] The tribunal therefore finds that the termination of employment of the applicant was not at the initiative of the respondent as required by s 386(1) (a) of the Act. As such this application is dismissed for want of jurisdiction.
COMMISSIONER
Appearances:
Ms O’Neill for the applicant
Mr Healy for the respondent
Hearing details:
Adelaide
2010:
6 May
1 PN277
2 PN281-285, 288-289
3 PN745 and Exhibit R3 para 24
4 Exhibit A1 at para 34
5 PN278
6 Exhibit R3 at para 27
7 PN332
8 PN330
9 (1995) 62 IR 200
10 unreported, AIRC Print N6999
11 PR973462
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