Mr Dainley McAllister v In Control Pty Ltd
[2013] FWC 3155
•31 JULY 2013
[2013] FWC 3155 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Dainley McAllister
v
In Control Pty Ltd
(U2012/15932)
COMMISSIONER SIMPSON | BRISBANE, 31 JULY 2013 |
Jurisdiction - effective date of termination - evidence considered - applicant resigned - application dismissed
[1] On 23 November 2012 Dainley Paul McAllister (the Applicant) made an application under section 394 of the Fair Work Act 2009 (the Act) for unfair dismissal remedy against In Control Pty Ltd (the Respondent). This application stated that the date the Applicants alleged dismissal took effect was 12 November 2012. The Respondent filed a Form F3 Response stating the Respondent followed the “Small Business Fair Dismissal Code”, and further the role of the Applicant was redundant. There was no dispute that the Applicant was handed a letter on 12 November 2012 by James Woodward the Chief Executive Officer of the Respondent which included the following:
“The purpose of this letter is to confirm the outcome of a recent review by In Control Pty Ltd (the employer) of its operational requirements and what this means for you.
As a result of an economic downturn, the position of Project & Support Manager is no longer needed. Regrettably this means your employment will terminate.
Based on your length of service, your notice period is one month. Therefore your employment will end on 11 December 2012.
You will also be paid your accrued entitlements and any outstanding pay, including superannuation, up to and including your last day of employment.....” 1
[2] The Applicant filed a further unfair dismissal application on 21 December 2012. The Applicant’s representative made clear in the course of the matter, that the primary position of the Applicant was that a termination took effect on 12 November 2012 despite the termination letter stating otherwise. This is based on the conduct of Mr Woodward on 12 November 2012 and his actions on subsequent days, that the Applicant argued support that claim. A second application was filed according to the Applicant in order to protect the position of the Applicant 2 should the Fair Work Commission (the Commission) ultimately find that the Applicant’s termination did not have effect until 11 December 2012.
[3] Section 394(1) of the Act states as follows;
“394(1) A person who has been dismissed may apply to FWC for an order under Division 4 granting remedy...” (emphasis added).
[4] It is clear that in the event that an application for unfair dismissal remedy is filed prior to a dismissal having occurred it is has no effect, it is a nullity, and it therefore would not prevent a subsequent application being filed, if it is capable of being made.
[5] A number of jurisdictional questions arose in the course of hearing this matter. At a directions hearing it was determined that the question of when the termination had effect would be heard prior to hearing the genuine redundancy argument. This jurisdictional issue was listed for hearing on 21 May 2013 however the evidence was not concluded on that day. As the Applicants representative was unavailable for several weeks, the balance of the evidence was not heard until 10 July 2013 and closing submissions were made on that day.
[6] At the conclusion of the hearing on 21 May 2013 I raised with both parties the possibility that the Applicants termination was not at the initiative of the employer. Prior to the hearing on 10 July 2013 I reminded both parties of this possibility and asked them to address me on that matter. At the hearing on 10 July 2013 the Applicant’s representative made the submission that should I ultimately conclude that if the Applicant did resign then it was a resignation as described at section 386(1)(b), being a resignation forced by the Respondent’s conduct.
BACKGROUND
[7] The Applicant commenced employment with the Respondent on 2 June 2008. At the time of his termination he was engaged as a Project and Support Manager with the Respondent, 3 which is an Information Technology company. According to the Applicant the Respondent’s two products were firstly a task management system used by hospitals for patient and equipment movement, and another product which was a compliance and audit tool used by hospitals to assess cleanliness and environmental variables.4 The Applicant said he provided support for both tools.
CONSIDERATION
The Meeting
[8] The Applicant gave evidence that he attended a meeting on 12 November 2012, which was also attended by James Woodward, Ian Garton and Brett Spence. He said such meetings normally had an agenda prepared by James Woodward.
[9] The Applicant stated that he had been attending a conference in Thailand for the Respondent immediately prior to this meeting. 5
[10] The Applicant gave evidence that there had been a number of communications between himself and James Woodward prior to the meeting on 12 November 2012, where the Applicant had raised concerns about decisions being made by the Respondent. The first concerned agreements made with Cairns Base Hospital, in particular about the Respondents systems “going live” in that hospital and these are set out in a chain of emails on 6 November 2012. 6 The second was in regard to concerns the Applicant had raised in connection with the Sir Charles Gairdner Hospital in Western Australia, set out in an email from the Applicant to the Respondent on 7 November 2012.7 Both of these emails were sent by the Applicant while he was in Thailand attending a conference on behalf of the Respondent.
[11] The Applicant’s first direct contact with the Mr Woodward after the sending of these emails was at the meeting held on the morning of 12 November 2012, immediately after he returned from the conference in Thailand. The Applicant described the atmosphere at the meeting as awkward. 8 The Applicant said James Woodward asked him some very specific and extended questions about sites he was involved in.9
[12] The Applicant said the meeting started at 10am and he was handed a letter by Mr Woodward at approximately 10.30am. 10 Mr Woodward agreed this occurred about half an hour into the meeting.11 The Applicant claimed James Woodward was angry at the fact that the Applicant and others were speaking about technical issues.12 The Applicant said as follows;
“James had asked a question about a site. I was responding to the question. He appeared to get quite flustered and he retrieved an envelope from a plastic pocket that was in front of him, turned the plastic pocket over, removed an envelope and put that envelope down in front of me.
Did he say anything to you ? --- He did most definitely.
What did he say?---- He said, “I’ve had enough of this. You are redundant effective immediately”? --- He did.
What did you understand by that? --- I took it to be there and then...” 13
[13] The Applicant said he stood up from the table, packed his laptop and some other items in his bag and shook hands with Ian Garton and Brett Spence. He said he walked to the other end of the premises back to his desk and collected his car keys. However, the Applicant said that he had to walk back into the meeting as he had to collect the envelope which he had left behind unopened. 14
[14] The Applicant stated that he picked up the envelope and left. He said nothing was said when he went back into the meeting and that he did not read what was in the envelope until few hours later when he got home, which was after lunch. 15
[15] Ian Garton provided a statement 16 and gave evidence in the Respondents case to the effect that he was present at the meeting of 12 November 2012 and stated that James Woodward did not tell the Applicant he was terminated immediately or ask him to leave the premises. He agreed that the statement he signed had been prepared for him.17 Ian Garton’s oral evidence was that James Woodward said “Dain, you’re redundant”, or words to that effect.18
[16] Brett Spence gave evidence which was consistent with Ian Gartons, regarding what James Woodward said to the Applicant at the time that the Applicant presented the termination letter. However, Brett Spence also gave evidence that he had a later discussion with the Applicant, which he indicated he thought was around 19 November 2012. In this discussion Mr Spence said the Applicant asked him about his recollection of the meeting and he claims to have told the Applicant at that time James Woodward did not ask the Applicant to leave. He was quite clear on this point in his evidence. 19 However, he later conceded it was possible he just couldn’t recall if the word “immediately” had been used or not.20
[17] Mr Woodward disagreed with the Applicant’s view that the meeting was tense. 21 He said that the reason he decided to advise the Applicant he was being made redundant at the meeting of 12 November 2012 was that he intended to advise him under “any other business” at the end of the meeting. This was because he first wanted to go through the agenda and make it clear to the Applicant there was a lot of work to do over the next few weeks and that he was getting assigned to tasks. Mr Woodward said his second reason was that he wanted to have witnesses present in case it was referred to the Commission. The third reason he gave was that he didn’t know how the Applicant would react.22
[18] James Woodward said that after discussing a number of other customers as part of the agenda, when it got to the Royal Brisbane Hospital, he decided he couldn’t put off telling the Applicant he would be made redundant. He said he used the words, “Dain, I’m making you redundant.”
[19] Mr Woodward was challenged during cross examination about why he did not take any steps to attempt to stop the Applicant from leaving the workplace on the morning of 12 November 2012 when the Applicant returned to the meeting to collect the letter he had left behind. He responded as follows:
“---Look, he was very upset. There was no way that anybody was going to stop him from storming out the door...” 23
[20] In all of the circumstances I am inclined to accept that Mr Woodward’s explanation is a plausible explanation for why he did not seek to prevent the Applicant from leaving at that particular moment as compared to the Applicants argument that it should be inferred from Mr Woodward’s conduct in this regard that he had intended for the Applicant to be instantly dismissed.
[21] There are two competing versions of what was said by Mr Woodward when he handed the termination letter to the Applicant. The Applicant’s version being that he was told his redundancy was “effective immediately”, and the version as given by Mr Woodward, Mr Spence and Mr Garton that the word “immediately” was not used. I have listened to the evidence of all four witnesses and am more inclined, on balance, to accept the version of the three witnesses for the Respondent. The evidence of all three was generally consistent.
[22] I have listened to the Applicants submission that I should view the written statements of Spence and Garton with some scepticism as they were drafted some months after the event by Mr Woodward and presented to them. However Mr Spence gave oral evidence he read the draft and changed it before agreeing to sign it. Mr Garton gave evidence that he read it and agreed that it was accurate. Both did not waiver under cross examination. In any event, even had the words “effective immediately” been used, which I do not accept, it is also possible the reference could just as easily be in regard to making the Applicant’s position itself redundant without reference to the matter of whether he would be required to work out a notice period or not. The facts are clear that the details concerning the notice period were set out in the letter itself, which the Applicant chose not to read until several hours after he had been given it.
[23] The fact that the termination letter clearly identifies 11 December as the last day of employment also makes it less probable that Mr Woodward would have stated to the Applicant that he was terminated effective immediately whilst at the same time handing him a letter he had signed himself completely at odds with that statement.
The emails
[24] The Applicants own evidence is that he was confused about the differences between what the termination letter said and what he maintained was said at the meeting earlier that day by Mr Woodward. In his evidence he said “..it wasn’t clear to me what was occurring. ..” regarding the status of his employment with the Respondent as at the afternoon of 12 November 2012. 24 He said he first attempted to contact James Woodward by email at 3.31pm on Monday 12 November 2012. He sent the following email;
From: Dain McAllister
Sent: Monday, 12 November 2012 3:31 PM
To: James Woodward
Subject: Termination of Employment [Redundancy]
Hi James
Firstly, I formally acknowledge receipt of your letter dated today [12/11/2012] regarding termination of my employment.
Your letter indentifies that I will be paid accrued entitlements and outstanding pay [including superannuation] but does not specify In Control's expectations up to and including the nominated cessation date [11/12/2012]. I believe your verbal statement was to the effect of "effective immediately you are redundant". Can you please provide further clarification with respect to these expectations, specifically attendance requirements &/or duties to be performed in the intermediary.
Dain
[25] This email identified the inconsistency claimed by the Applicant and sought clarification from James Woodward regarding expectations concerning his attendance requirements and/or duties to be performed in the intermediary. 25 The Applicant confirmed in oral evidence that he was seeking clarification.26 I am satisfied that the reference to the term ‘intermediary’ was intended to be a reference to the period in-between the receiving of the letter that day and the date of 11 December 2012 that the letter advised was the date his employment would end.
[26] This email was sent prior to the Applicant becoming aware his access to the server had been changed. After the Applicant became aware of this change to server access he sent an email in the following terms to James Woodward the next morning of 13 November at 7.25am;
“Hi James
As I have not received a reply regarding the below, and my domain and email accounts have now been revoked, can I assume that you do not require me to work during this four week notice period?
Please confirm by email to (email address) at your earliest convenience.
Dain”
[27] The evidence indicated James Woodward responded at 7.41am, but sent his response to the email address of the Applicant that had been disabled. That response read;
From: James Woodward [mailto:[email protected]]
Sent: 13 November 2012 11:44 AM
To: Dain McAllister
Subject: FW: Termination of Employment [Redundancy]
Hi Dain,
Here is a copy of the email that I sent you at 7:41 this morning. I'll call you later this afternoon ................
James
From: James Woodward
Sent: Tuesday, 13 November 2012 7:41 AM
To: ‘Dain McAllister’
Subject: RE: Termination of Employment [Redundancy]
Hi Dain,
There are 21 working days until 11.12.12.
I calculate that you have 15.4 days holiday due [I gave you an extra day for working Ekka day].
Dates
Holiday
Days
C/ forward from 2011 / 2012:
20.5
2012/2013 Days 01.07.12 to 11.12.12:
8.9
15.08.12 -Worked on Ekka Day
1.0
03.09.12 to 14.09.12 -Boat cruise
(10.0)
29.10.12 to 02.11.12 -NSW Holiday
(5.0)
2012/2013 Total Days Left:
15.4
I'll give you a call later today [I'm flying to Melbourne this morning] to discuss:
o Working at the Office until 11.12.12.
o How much of your accrued holidays you want to take during this period?
o When you should return the office keys
o When Steve should redirect your mobile and e-mails
o Returning equipment
o Handover of your duties to other staff
o etc.
Can you please let me have your current address as the address that I have on file seems to be out of date?
James
[28] This email was forwarded by James Woodward to the Applicants personal email address at 11.44am that day. The Applicant said during oral evidence that after receiving this email he was still confused. 27
[29] The evidence was that the Applicant and James Woodward had a telephone conversation on the evening of Tuesday 13 November 2012. 28 His oral evidence was that during this conversation the matter of when he claims his termination occurred was squarely addressed.29
[30] The Applicant confirmed James Woodward offered him two options in the course of the telephone conversation on the Tuesday evening, which are detailed in his subsequent email sent to James Woodward on Thursday 15 November. 30 He said he proposed a third option. He said he discussed with James Woodward why he believed neither of the options proposed by Mr Woodward was appropriate.31 The reasons he gave appeared to be the manner in which he was advised of the termination.32 It is clear in the email the Applicant understood that the Respondent required him to work if he did not wish to apply for leave. The Applicants email of 15 November read as follows;
From: Dain McAllister
Sent: 15 November 2012 12:46 PM
To: 'James Woodward'
Subject: RE: Termination of Employment [Redundancy]
Importance: High
Hi James
I appreciate your call Tuesday evening. It is unfortunate that we were unable to reach an amicable resolution.
You provided me with two options:
1. Attend work and perform ordinary duties up to and including 11/12/2012. Followed by a termination payment of accrued leave entitlements.
2. Take annual leave effective immediately until exhausted followed by a period of discretionary paid leave for remaining days up to and including 11/12/2012.
I proposed a third option:
3. Take a period of paid leave in lieu of notice up to and including 11/12/2012. Followed by a termination payment of accrued leave entitlements.
Neither options 1 or 2 appear reasonable given the surrounding circumstances of this redundancy. You refused to entertain option 3, as you "refuse to pay me to sit at home when there is work I can be doing.”
You asked if I would be at work Wednesday 14/11/2012. I agreed in the affirmative.
You provided me with direction as to two tasks you required me to complete:
1. Attend Greenslopes Private Hospital to connect an in stock mobile device to their hospital wireless network.
2. Attend Royal Brisbane & Women's Hospital to perform software installation of Carps Controller on a new nonstandard operating environment workstation PC.
It is noted that prior planning or consultation with site contacts had not taken place.
You instructed me to:
1. Attend our Yeronga office by 09:00 Wednesday 14/11/2012.
2. Contact relevant site contacts to arrange same day appointments.
3. Perform tasks as directed above.
During the course of the conversation two points were made by you:
1. Should I fail to attend work during my notice period you would seek abandonment of employment processes.
2. Should I attend work but fail to perform or complete prescribed daily duties you would terminate my employment on grounds of noncompliance and/or poor performance.
Upon my mention of this redundancy being non-genuine, you refused to enter further discussion and suggested I make a claim with Fair Work Australia. Your suggestion appeared to be based on your opinion that you are operating within the Fair Work Australia requirements with respect to redundancy.
I noted that the general nature of the call appeared to be stilted and contentious.
Unfortunately I was unable to attend work Wednesday due to illness [see email “Sick Leave 14/11/12" sent at 08:04 14/11/2012].
Subsequently I am unable to attend work until 19/11/2012 due to illness [see email "Sick Leave 14/11/12 - 18/11/12” sent at 16:02 14/11/2012]. I am in possession of a medical certificate that can and will be provided to you as soon as practicable.
As our phone conversation Tuesday 13/11/2012 was unsuccessful and did not result in an agreed outcome, I propose that we contain further discussions regarding this redundancy to written or email communications. Please be advised that my current residential address is - 3 Highfields Court, Loganlea, OLD 4131. Given your current out worker status and in order to expedite further communications I suggest that email is a preferred mechanism. As previously advised, my personal email address is: [email protected]<mailto:[email protected]>.
On Wednesday morning 14/11/2012 I contacted Kristine Stapleton a fellow In Control Pty Ltd director and attempted to arrange a further discussion or possible meeting with her. I afforded Kristine the opportunity not to partake in further discussions if it were her preference. Kristine acknowledged my communication and requested I contact you directly regarding this matter.
Since receiving your letter regarding termination of employment by way of redundancy I have had an opportunity to consult with Fair Work Australia and seek independent professional advice.
I feel that there is still room to reach an agreement or settlement between ourselves without the immediate need to engage professional services. The purpose of this email is to ascertain if this is indeed possible.
Should this matter proceed under an application to Fair Work Australia I understand that you would be required to prove that:
Under Commonwealth workplace laws, a person's dismissal is a 'genuine redundancy' if:
- the employer no longer needs the person's job to be done by anyone because of changes in the operational requirements of the business, and
- the employer followed any consultation requirements in the modern award, enterprise agreement or other industrial instrument that applies.
A dismissal is not a genuine redundancy if it would have been reasonable in the circumstances for the employee to be redeployed within the employer's enterprise or an associated entity. I am confident that this termination is not genuine redundancy as:
Under Commonwealth workplace relations law, a termination is not a genuine redundancy if:
- the operational requirements of the business have not changed and the -employer still needs the employee's job to be done by someone; and
- the employer has not followed relevant requirements they may have in an applicable modern award, enterprise agreement or other industrial instrument to consult with the employees, and/or their representatives, about the redundancy.
It may also not be a genuine redundancy if it's reasonable for the employee to be redeployed in either:
- the employer's business
- the business of an entity associated with the employer.
While you are not required to do so, Fair Work Australia also recommend an employer should:
- inform employees about changes within the business that may affect their working arrangements
- provide employees with an opportunity to ask questions, and
- consider all options and alternatives to redundancies, such as redeployment, job sharing and reduced overtime.
I believe the following items are relevant in context to this redundancy:
§ I was on approved annual leave 29/10/2012 -04/11/2012.
§ I [plus another staff member] attended a work related international conference the week of 05/11/2012 11/11/2012.
§ I attended work 12/11/2012 commencing at 09:00. § Both you and I were present at the office 12/11/2012 from 09:00 onwards.
§ No reference or warning of this determination was made between 09:00 & 10:00 12/11/2012.
§ The scheduled "Quick Catch Up" meeting commenced at 10:00.
§ The "Quick Catch Up" meeting proceeded ordinarily until approximately 10:30.
§ During the course of the "Quick Catch Up" meeting at approximately 10:30 you presented me with an envelope.
§ Upon presentation of this envelope you stated "effective immediately you are redundant".
§ I made mention superfluously that the envelope was addressed incorrectly.
§ I did not open this envelope or review the contents of the enclosed letter in your presence.
§ Having received this envelope and your aforementioned verbal statement, I consequently packed up my laptop vacated the meeting & the premises.
§ At no time did you offer private consultation following delivery of this envelope or your aforementioned verbal statement.
§ At no time did you attempt to prevent me from leaving either the meeting or the premises, or suggest that this termination was not immediate.
§ I departed the office 12/11/2012 at approximately 10:40.
§ Domain credentials were revoked by early evening 12/11/2012.
§ As at 10:30 15/11/2012 domain credentials have not been reinstated.
Your decision to reach this conclusion and subsequently deliver the notice within the context of a staff meeting may have been unduly harsh or retaliatory.
I maintain that:
§ Operational requirements have not changed and you do indeed require my job to be done by someone else.
§ Options including consultation were available to you but were not explored.
§ Options including a reduction in casual staff hours &/or review of temporary employee arrangements where available to you.
§ Flexible working arrangements and/or reduction in pay or entitlements may have been possible.
§ Your accompanying remarks were unclear and contradictory to the supplied letter, specifically "effective immediately you are redundant” verses "your employment will end on 11th December 2012".
§ The aforementioned revocation of domain credentials and the resultant loss of VPN, email, business contacts, computer and shared file access suggest that my employment was indeed terminated with effect 12/11/2012.
§ The loss of the aforementioned services make it almost impossible to continue working in a productive manner.
§ The subsequent failure to reinstate domain credentials, despite planned return to work 14/11/2012; again suggest that my employment has indeed been terminated.
In order to reach a prompt outcome, I am willing to make the following without prejudice offer:
§ Agree that my employment was terminated immediately by way of redundancy with effect 12/11/2012.
§ Agree that suitably presented work related expenses submitted before 30/11/2012 will be honoured and reimbursed in an ordinary manner.
§ Agree to payment in lieu of notice for the required period of four weeks.
§ Agree that my final pay is to include the following components:
o Payment in arrears for:
§ Annual Leave 29/10/2012 -04/11/2012.
§ Ordinary Hours 05/11/2012 -11/11/2012.
o Payment in lieu of notice:
§ Ordinary Hours 12/11/2012 -11/12/2012.
o Payment of accrued leave entitlements:
§ 15.4 days
§ Agree that final termination payment should occur during normal cycle [01/12/2012], ordinarily paid on the next business day [03/12/2012 in this case].
§ Agree that at your discretion a final termination payment can be made prior to 03/12/2012, but not thereafter.
§ Agree that I will attend the office for the purposes of returning company property and the collection of personal items prior to 17:0023/11/2012.
§ Agree that the above attendance should be planned or scheduled with an In Control staff member of your choosing for a mutually agreeable time and date prior to 17:00 23/11/2012.
I have made the above without prejudice offer to achieve a prompt resolution to this matter. A prompt resolution would allow me to focus on obtaining gainful future employment and allow you to continue to focus on company direction and future successes.
Please confirm if you wish to accept or decline this without prejudice offer by email no later than 17:00 [EST] 16/11/2012. I believe that this is fair and reasonable timeframe given your obligation to provide prompt consideration to matters raised by employees in relation to employment changes, particularly in the case of redundancy.
If no response is received by 17:00 [EST] 16/11/2012, I will assume that your response is in the negative and this without prejudice offer will be withdrawn.
Dain 33
[31] The Applicant did not receive a response from James Woodward within the timeline that he had set for a response to his offer. The Applicant sent a further email to James Woodward on Friday 16 November at 5.51pm as follows;
From: Dain McAllister [mailto:[email protected]]
Sent: Friday, 16 November 2012 5:51 PM
To: James Woodward
Subject: FW: Termination of Employment [Redundancy]
Importance: High
Hi James
Your unwillingness to discuss the items raised or negotiate an outcome is clear.
Please be advised that the without prejudice offer has now been withdrawn, as you have not responded within the specified timeframe.
!
I am disappointed that we could not reach an amicable agreement without external intervention.
Dain
[32] James Woodward responded by email on Saturday 17 November 2012 as follows;
From: James Woodward [mailto:[email protected]]
Sent: 17 November 2012 6:21 PM
To: Dain McAllister
Subject: RE: Termination of Employment [Redundancy]
Hi Dain,
Thank you for your emails dated 15.11.12 and 16.11.12. As you know I had a number of back to back appointments in Melbourne on Thursday 15th and flew back to Brisbane late that night and I have only just read both of these emails.
My understanding of your “without prejudice" offer is that I pay you to sit at home. I thought that I made it clear that I am not prepared to do this as there is still lots of work for you to do. Can you please attend work as normal on Monday 19.11.12? If you do not want to attend work I'm happy for you to use some [or all] of your accrued leave. Please let me know if you would like to do this?
On Monday 19.11.12 I need you to arrange with Corinne 0422 212 950
[email protected]<mailto:[email protected]> to return company property [including your Sim card and office key] and to collect your personal items. If you are uncomfortable to attend the office I'm happy for you to arrange to meet with Corinne off-site.
James
[33] It is clear from this email the Respondent rejected any proposal of the Applicants that he be paid during the period up to 11 December 2012 without reporting for work. In James Woodward’s Saturday email he repeats the offer of the Applicant accessing accrued leave as an alternative to reporting to work. The Applicant sent the following email to James Woodward at 9.07am on Monday 19 November 2012:
From: Dain McAllister
Sent: 19 November 2012 9:07 AM
Subject: RE: Termination of Employment [Redundancy]
Hi James
As the without prejudice offer has been withdrawn, further discussion regarding it is unnecessary.
I will be contacting Corinne today as directed for the purposes or returning company equipment and collecting personal items.
I am unable to request leave as the surrounding circumstances are unclear and have not been resolved.
Dain
Access to server and Tools of Trade Issue
[34] The Applicant said his computer at work uses a virtual private network to communicate with the Respondent’s server. 34 The Applicant said that client’s information was on the server. To access the server a user name and password are required.35 The Applicant said his mobile phone was also connected to the company mail server in order to access emails.
[35] The Applicant said he became aware on the evening of 12 November 2012 that his access rights to the Respondents server had been altered as his mobile phone call history did not record names only phone numbers.
[36] The Applicant gave evidence that he had spoken to Steven Eames, another member of staff, who had advised the Applicant that he had cut off the Applicant’s access under direction from James Woodward. 36 Mr Eames confirmed in his own evidence that he was contacted by James Woodward, who asked him to change the master password on the servers.37 He said he did that at about 4.30 in the afternoon.
[37] The Applicant agreed that he remotely accessed the Respondents server on the afternoon of Monday, 12 November 2012. 38 There was some cross examination and also submissions on the part of the Applicant in the course of the second hearing day of 10 July 2013 that suggested it was unclear who set up a second administrator account. However, reference to the transcript of 21 May 2013 records that the Applicant gave clear evidence that he agreed that he had created a second administrator account which he said he did on Sunday, 11 November 2012, the day before the meeting.39 He said he did this for the purposes of a backup operator after the last domain control failure. He claimed Steve Eames was aware he had done this.40
[38] Steven Eames said that he noticed shortly after midday on Monday, 12 November 2012 that another administration account had been created. This confirmed the Applicant’s evidence, except to the extent that Mr Eames said the administration account was created that afternoon whereas the Applicant said he had created it the day before. Mr Eames’ evidence did not indicate that the Applicant had told him he had set up a second administrator account. Mr Eames said he could not think of any reason for there to be another administrator account and so he promptly deleted it. 41 Mr Eames said he wasn’t sure if there was any other way to access the server so he felt it was safer to disable the Applicant’s account. He indicated this was his decision and that he was not directed to do this by James Woodward. He said he told Mr Woodward after the fact.42 This is consistent with Mr Woodward’s evidence that he had instructed Mr Eames to change the password on the server, which would block the Applicant’s access to the server, but not give any directions about blocking his access to email.43
[39] The fact that Mr Woodward attempted to send an email to the Applicants work email address the following morning tends to corroborate his claim that he did not know at the time that Mr Eames had disabled the Applicant’s email access as well as server access.
[40] The email the Applicant sent to James Woodward at 12.46pm on Thursday 15 November recorded as follows;
“.........................................
You asked if I would be at work Wednesday 14/11/2012. I agreed in the affirmative.
You provided me with direction as to two tasks you required me to complete:
1. Attend Greenslopes Private Hospital to connect an in stock mobile device to their hospital wireless network.
2. Attend Royal Brisbane & Women's Hospital to perform software installation of Carps Controller on a new nonstandard operating environment workstation PC.
It is noted that prior planning or consultation with site contacts had not taken place.
You instructed me to:
1. Attend our Yeronga office by 09:00 Wednesday 14/11/2012.
2. Contact relevant site contacts to arrange same day appointments.
3. Perform tasks as directed above.
.......................................”
[41] The Applicant agreed he could have attended the Yeronga office at 9am on Wednesday 14 November. 44 He said it would have been an embarrassing situation to seek to get the site contacts as directed by James Woodward in order to carry out the work as directed at Greenslopes and the Royal Brisbane Hospital. The Applicant claimed that to not have the site contacts was “very much like the withdrawal of tools of the trade.”45
[42] The Applicant gave evidence that due to the circumstances, he was not functioning very well and he agreed he could not have performed his work functions. 46 He visited a doctor on Wednesday 14 November. Two medical certificates were tendered47 which state that the Applicant was unfit for work from Wednesday 14 November 2012 until Sunday 18 November 2012, and from Monday 19 November 2012 to Friday 23 November 2012.
[43] The Applicant gave the following evidence;
“At any stage in his communications with you, did he say or indicate that your access rights would be restored?----It was agreed by phone that I would attend work, you know, and in order to do so I would have to have those accesses..” 48
[44] The Applicant went on to clarify that he felt he had no choice, as he claimed Mr Woodward had said to him that if he did not attend work he would regard it as abandonment of employment. 49 However, he confirmed under cross examination that he agreed in the conversation with James Woodward on the Tuesday evening of 13 November 2012 that he would attend work on the next day, being Wednesday 14 November 2012.50
[45] In response to the Applicant’s evidence that he could not fulfil the duties he had been directed to perform at Greenslopes Hospital and Royal Brisbane Hospital had he elected to return to work Mr Woodward gave the following evidence;
“..But you’ve got to give him his hammer back?----Exactly. We had no problems about giving him access to the emails or the server, et cetera, had he have turned up - come back to work...” 51
[46] And further on;
“..He was never told that those things would be given back to him so that he could fulfil his role? ---He was never told that but he never said, “Will these be given back to me,” because it just never came up. It’s obvious that if he was going to do his work he would need those tools of the trade...” 52
[47] I am satisfied that the matter of his access was something that could have been addressed had the Applicant presented for work as requested. I am inclined to the view that in all likelihood the Respondent would have taken the necessary steps for him to have the necessary tools to complete the tasks the Respondent was directly him to do on his return. The Applicant preferred to progress on the assumption that the Respondent would not do this and therefore assumed he would have been unable to perform the tasks requested by Mr Woodward. Drawing this assumption suited his preferred settlement of the matter which did not involve him returning to work. I do not accept that the Applicant had a reasonable basis to draw the conclusion he did in the context of Mr Woodward’s requests for him to return to perform specific tasks.
[48] In any event, the evidence indicates that the denial of server access for the Applicant was not connected to the decision of the Respondent to provide the Applicant with the termination letter during the meeting at 10.30, but that it was in fact connected to the discovery of a second administrator account later in the day on 12 November 2012 that the Applicant admits he set up. Further, Mr Woodward did not order the Applicant be denied access to everything, just the server through a change in the password.
[49] It was Mr Eames who decided independently of Mr Woodward to also disable the Applicant’s access to emails, which also affected the operation of his mobile phone. This undermines the argument that the delivery of the termination letter and the blocking of access to the server and emails were all part of one co-ordinated action connected to a decision that the termination was intended to have immediate effect, as the Applicant has suggested.
Return of Property
[50] The Applicant agreed that James Woodward had responded to his email on Saturday 17 November 2012. 53 The Applicant has sought to argue that the last paragraph in the email of 17 November 2012 was a direction from James Woodward for the Applicant to return company property on Monday, 19 November 2012.
[51] The Applicant gave evidence that he went to the office of the Respondent on the morning of 19 November 2012 and handed in his keys. He said he removed his personal effects from the office and handed back his SIM card and key to Corinne. 54
[52] The Applicant said that following this, he went and saw a solicitor and future communications with the Respondent were conducted through his solicitors. The Applicant said he was paid out for accrued annual leave, but not for the sick leave that he had taken. 55
[53] The Applicants last email of 19 November 2012 at 9.07am stated;
“I am unable to request leave as the surrounding circumstances are unclear and have not been resolved.”
[54] At the conclusion of his examination in chief, the Applicant was asked what he thought was the date that he was terminated. He responded as follows:
“----We’re talking about, you know, a very small window, you know, it was either 12 November where, you know, I was, in effect, kicked out, you know, the meetings stopped, did not resume, you know, for quite an amount of time. The meeting was ongoing when I returned to the office, back to the meeting room, or it was the day, you know, when the keys - sorry, to correct myself, it was either that day about 10.30, that evening when the access was revoked, you know, or shortly after, you know, when the keys were returned but, you know, it is unclear. It is somewhere between, you know 12 November and 11 December. It’s my thought it all started on the 12th..”
[55] The Applicant was asked in cross examination why he did not report for work on Monday, 26 November 2012 after the medical certificates expired. He replied that it was because he had, at James Woodward’s request, returned his keys, SIM card and his access had not been restored and it was clear to him he had been terminated. 56
[56] It was put to the Applicant that the Respondent did not know whether the Applicant was still sick as he did not turn up for work. The Applicant responded that he was of the opinion he had been terminated. 57
Previous conduct of Applicant
[57] Mr Woodward gave evidence concerning an occasion in May 2010 when the Applicant had submitted his resignation. A copy of an email to this effect was provided. 58 Mr Woodward said that the Applicant called him several days later and asked for his job back, to which he said he agreed.59
[58] Mr Woodward also gave evidence that a separate incident occurred on Friday, 19 August 2011. He claimed that on this day the Applicant was due to meet with one of the Respondents’ clients at 10am, and at about 9am he became agitated and violent and kicked a hole in an office door before he stormed out of the building. 60 Mr Woodward admitted he did not see the incident, but had heard the door get kicked with the other staff. A photograph of what appears is the lower part of a door was provided with a hole in it.61 Mr Woodward gave evidence that following this incident he and another member of staff conducted the meeting that the Applicant was to have held at the Mater Hospital.
[59] Mr Woodward also produced an email that he said was sent to him that day from the Applicant. It read as follows:
“From: Dain McAllister
Sent: Friday, 19 August 2011 10:44AM
To: James Woodward
Cc: All Staff
Subject: Annual Leave Request
Hi James
I hereby request annual leave with effect immediately.
Please advise my current entitlements, as it is my intent to exhaust these prior to making any further determinations.
Dain” 62
[60] Mr Woodward provided a further email which he said he provided in response, which read as follows;
“From: James Woodward
Sent: Friday, 19 August 2011 11.56AM
To: Dain McAllister
Subject: RE: Annual Leave Request
Hi Dain,
There is no problem with you taking leave from today.
You have 24 days from 10/11 and 50/365 x 20 = 2.7 days for 11/12.
Please give me call to let you know when you are ready to come back to work..........
James” 63
[61] The first incident was approximately 2 and a half years before the meeting of 12 November 2012 and the second incident was approximately 14 months prior. The Applicant’s case sought to draw a nexus between these two incidents and the meeting of 12 November 2012 on the basis that they were evidence of Mr Woodward growing increasingly unhappy with the Applicant.
[62] The Applicant’s case did not appear to challenge the claim of Mr Woodward that the Applicant did in fact kick a hole in an office door before departing the office at 9am on 19 August 2011 when he had an appointment with a client of the Respondent at 10am. The Applicant’s representative cross examined Mr Woodward on the matter, but did not put to him that it did not occur. Mr Woodward suggested that the Applicant could be recalled to respond to these matters. 64 The Applicants representative did not elect to recall the Applicant to respond to this evidence despite the Applicant being present at the hearing.
[63] While in the ordinary course the conventional approach would require that the Respondent should not be able to rely on matters that were not put to the Applicant himself, in this case the Respondent was self represented sought to introduce this new material early on the second hearing day of 10 July 2013 concerning the May 2010 and August 2011 incidents. This was after the Applicants evidentiary case was concluded. The Applicants representative did not object to the material coming into evidence but did cross examine the Respondent on this new material and as stated ultimately decided not to recall the Applicant to respond to this new evidence.
[64] I do not intend to attach significant weight to this material in drawing my ultimate conclusions, however I note if anything it is indicative of a tendency on the part of the Applicant to act impulsively, which would be consistent with leaving the workplace as was the Respondents interpretation of the Applicants conduct on the morning of 12 November as compared to having been directed to leave the workplace immediately by the Respondent.
CONCLUSION
[65] As stated at the outset I do not intend to deal with the question of the Applicant’s challenge to the claim of the Respondent that its decision to terminate the Applicant satisfied the tests in Section 389 of the Act as that was a matter for consideration following consideration of the matters the subject of this decision.
[66] I have already given my reasons earlier for concluding that the Applicant was not told at the meeting of 12 November 2012 that his redundancy was “effective immediately.” I have also set out above why I accept as plausible, the explanation given by Mr Woodward for not attempting to stop the Applicant from leaving the workplace on 12 November 2012. On the basis of these two findings I am not satisfied the employment relationship was ended with immediate effect by the Respondent on the morning of 12 November 2012.
[67] I have also dealt with above the matter of Mr Woodward’s instruction to Mr Eames to change the server password, and Mr Eames’ own decision to disable the Applicant’s email access. As I have set out above these decisions were not connected directly to the decision the Applicant was advised of orally and in writing on 12 November 2012, but were connected to the discovery that a second administrator account had been established. I am not satisfied that these decisions or their effect on the Applicant’s access to the server or his work emails had the effect of terminating his employment. We then must turn to the exchanges between the Applicant and Respondent both via email and telephone from 12 November 2012 to 19 November 2012.
[68] The email the Applicant sent to Mr Woodward on Monday 12 November 2012 clearly sought clarification about what his working arrangements would be for the period between that time and the identified end of employment of 11 December 2012 in the letter provided to him at 10.30 that morning. Had he opened the letter at the time he was given it, or even at any time before leaving the workplace on the morning of 12 November 2012, he would have been aware of the letter’s contents and could have clarified any issues while still in the workplace. The failure to read the letter he had been given at the time was a circumstance of the Applicant’s own making. It would have been reasonable to expect him to have read such a letter at the time.
[69] Mr Woodward attempted to respond to the Applicant’s first email the following morning from the Brisbane Airport at 7.41am, but sent the email to an email address that had been blocked by Mr Eames. He forwarded the same email to a different email address for the Applicant at 11.44am that same morning. The email included the following comments;
“ .......I'll give you a call later today [I'm flying to Melbourne this morning] to discuss:
o Working at the Office until 11.12.12..........”
[70] It should have been apparent to the Applicant from this comment in response to his request for clarification, that Mr Woodward did not regard the Applicant as having been terminated. His email was consistent with the letter handed to the Applicant the previous day that he would remain employed until 11 December 2012.
[71] The evidence concerning the telephone discussion between Mr Woodward and the Applicant (both of whom gave evidence that the subsequent email of the Applicant to Mr Woodward on Thursday 15 November 2012 fairly accurately recorded their conversation) satisfies me that it should have been clear to the Applicant, following the Tuesday night conversation, that his employment had not been terminated and further, it should have been clear what duties he was being directed to perform. The Applicant accepts that he made an agreement in the course of that conversation that he would be coming to work the next day. I am satisfied that the Respondent, through the actions of Mr Woodward, had taken sufficient steps to clarify with the Applicant any potential confusion about his employment status.
[72] Mr Woodward went further and said that if Applicant did not report for work, the Respondent would regard him as having abandoned his employment. Following this discussion, the Applicant did not report for work the next day as agreed, but instead attended a doctor and obtained a medical certificate completed that day. It reads as follows;
THIS IS TO CERTIFY THAT
Mr Dainley McAllister
IS RECEIVING MEDICAL TREATMENT AND FOR THE PERIOD
Wednesday 14 November 2012 TO Sunday, 18 November 2012 INCLUSIVE
He WILL BE UNFIT TO CONTINUE his USUAL OCCUPATION.
[73] In obtaining a medical certificate indicating he was not fit for work the Applicant’s actions lend further weight to the view that the Applicant did not regard himself as having been terminated, at least as at 14 November 2012.
[74] The Applicants next email to Mr Woodward is written on Thursday, 15 November 2012, the day after he had obtained the medical certificate to cover the week of 12 November 2012. The email is broadly in three parts.
[75] Firstly, it summarises the phone conversation. Secondly, it is critical of the Respondents claim of redundancy and the potential for this to be challenged. Thirdly, it makes a detailed proposal to resolve the matter by agreement, including an agreed date of redundancy, payment for work expenses submitted before 30 November 2012, payment in lieu of notice of four weeks, and final payment being made not after 3 December 2012. The Applicant set a deadline for the acceptance of his proposal by 17:00 hours on Friday 16 November 2012.
[76] When the Applicant did not receive a response within the timeframe, he decided to email the Respondent saying his offer was withdrawn and that he was disappointed he could not reach an amicable agreement without external intervention.
[77] The response of the Respondent was predictable and consistent. The Respondent said he was not prepared to meet both the Applicants demands, which were in effect to be paid for the notice period, and also not be required to perform work for that period. The Respondent’s email of Saturday 17 November 2012 included;
“My understanding of your “without prejudice” offer is that I pay you to sit at home. I thought I made it clear that I am not prepared to do this as there is still lots of work for you to do. Can you please attend work as normal on Monday 19.11.12 ? ..”
[78] The Applicant has sought to make much of the paragraph in Mr Woodward’s email that followed to suggest he was being directed to hand in his company property the next day. I do not read the email that way. The language is that the Respondent needed the Applicant to make arrangements for the return of property with Corinne. It was not a direction to return it on the next day; it was to have a conversation with Corinne for those arrangements to be put in place. The Respondent could not have been any clearer, for its part it wanted the Applicant to continue to perform the types of functions that were described to the Applicant by Mr Woodward during their telephone conversation on the Tuesday evening which were well within the Applicant’s skill set.
[79] I have also set out above part of the reason why I have rejected the argument of the Applicant that through blocking his access to the server and phone the Respondent had terminated him. The Applicant had a second limb to this argument. That as the Respondent had blocked the access of Applicant, the onus was on it to restore the access and until this was done, in circumstances where the notion of termination had been raised, the Respondent was the source of the denial of the Applicant’s tools of trade, which amounts to termination. 65 I reject this argument for similar reasons to rejecting the first limb of the Applicant’s argument on this point. The Applicant cannot get to the point of claiming to be denied access when at the same time he did not take up an invitation to return to work to test the proposition.
[80] I have reached the conclusion that after the Respondent had communicated its unwillingness on Saturday 17 November 2012 to accept the Applicant’s proposal, the Applicant responded by foreshadowing his intention to terminate his employment relationship with the Respondent himself in his email at 9.07am on Monday morning 19 November 2012, which included the following;
“...As the without prejudice offer has been withdrawn, further discussion regarding it is unnecessary.
I will be contacting Corinne today as directed for the purposes or returning company equipment and collecting personal items.
I am unable to request leave as the surrounding circumstances are unclear and have not been resolved...”
[81] The Applicant then took the remaining step of giving effect to his intentions to terminate the employment contract by visiting the workplace that morning and removing his personal effects from the office and handing back his SIM card and key to Corinne. 66 On this basis I am satisfied the Applicant terminated the employment relationship and not the Respondent.
[82] As I set out in the introductory paragraphs in this decision I had raised the possibility that the Applicant, and not the Respondent, had terminated the employment relationship. I raised this near the conclusion of the hearing on 21 May 2012 67 and sent correspondence to both parties prior to the hearing on 10 July 2013 reminding them that I invited them to make submissions on this point.
[83] The Applicant responded to my request and made the submission that in the event I am of the view that the Applicant resigned then I should accept that the circumstances of this amount to a constructive dismissal. Section 386 reads 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.” (My emphasis)
[84] The Applicant referred to Mohazab v Dick Smith Electronics Pty Ltd (No.2) (1995) 62 IR 2000 where an employer directed an employee to resign or have the police called to investigate an allegation against the employee. It was found in that matter that the employee had no real choice other than to agree in order to protect himself and his family from a police investigation. Contrary to the circumstances in Mohazab in this case the Applicant resigned of his own accord. The Respondent offered him two different options to continue to remain in employment until 11 December and the Applicant rejected both. He was not forced to resign on 19 November, he elected to resign.
[85] The Applicant also raised the matter of the Respondent not making payment for personal leave for the period covered by the medical certificates. The Respondent did not contest this, but there was no evidence to suggest this failure was connected to a view on the part of the Respondent that it was because the Applicant had been terminated. The evidence points the other way. For these reasons I do not find this argument persuasive. It maybe that entitlements to payment for personal leave remain outstanding for the period up to 19 November 2012. The Applicant can pursue that matter in another place if he so chooses.
[86] For all of the reasons set out above I conclude that the application is outside jurisdiction as the Applicant was not dismissed. An order dismissing the application will be issued with this decision.
COMMISSIONER
Appearances:
R.M.C Burns, Burns Law, for Mr Dainley Paul McAllister
J. Woodward, for In Control Pty Ltd
Hearing details:
21 May 2013
Brisbane
And
10 July 2013
Brisbane
1 Exhibit 5, Letter dated 12 November 2012.
2 Transcript, 21 May 2013, PN24.
3 Transcript, 21 May 2013, PN64.
4 Transcript, 21 May 2013, PN90.
5 Transcript, 21 May 2013, PN154.
6 Exhibit 2, Emails dated 6 November 2012.
7 Exhibit 3, Emailed dated 6 and 7 November 2012.
8 Transcript, 21 May 2013, PN277.
9 Transcript, 21 May 2013, PN282.
10 Transcript, 21 May 2013, PN289.
11 Transcript, 10 July 2013, PN1472.
12 Transcript, 21 May 2013, PN293.
13 Transcript, 21 May 2013, PN300 - PN303.
14 Transcript, 21 May 2013, PN339.
15 Transcript, 21 May 2013, PN356.
16 Exhibit 10, Statement of Ian Garton, dated 11 March 2013.
17 Transcript, 21 May 2013, PN897.
18 Transcript, 21 May 2013, PN935.
19 Transcript, 21 May 2013, PN1028 - PN1029.
20 Transcript, 21 May 2013, PN1069.
21 Transcript, 10 July 2013, PN1476 - PN1479.
22 Transcript, 10 July 2013, PN1272.
23 Transcript, 10 July 2013, PN1558.
24 Transcript, 21 May 2013, PN431.
25 Exhibit 9, Emails from 12 November 2012 - 19 November 2012.
26 Transcript, 21 May 2013, PN449.
27 Transcript, 21 May 2013, PN490.
28 Transcript, 21 May 2013, PN514 and PN683.
29 Transcript, 21 May 2013, PN520.
30 Transcript, 21 May 2013, PN685 - PN690.
31 Transcript, 21 May 2013, PN522.
32 Transcript, 21 May 2013, PN523 - PN524.
33 Exhibit 9.
34 Transcript, 21 May 2013, PN386.
35 Transcript, 21 May 2013, PN395.
36 Transcript, 21 May 2013, PN497 - PN498.
37 Transcript, 21 May 2013, PN742.
38 Transcript, 21 May 2013, PN627.
39 Transcript, 21 May 2013, PN630 - PN631.
40 Transcript, 21 May 2013, PN633.
41 Transcript, 21 May 2013, PN747.
42 Transcript, 21 May 2013, PN793 - PN794.
43 Transcript, 10 July 2013, PN1667 - PN1673.
44 Transcript, 21 May 2013, PN526.
45 Transcript, 21 May 2013, PN528.
46 Transcript, 21 May 2013, PN537.
47 Exhibit 6, Medical Certificate dated 14 November 2012 and Exhibit 7, Medical Certificate dated 20 November 2012.
48 Transcript, 21 May 2013, PN597.
49 Transcript, 21 May 2013, PN601.
50 Transcript, 21 May 2013, PN690.
51 Transcript, 10 July 2013, PN1716.
52 Transcript, 10 July 2013, PN1721.
53 Transcript, 21 May 2013, PN603.
54 Transcript, 21 May 2013, PN608 - PN611..
55 Transcript, 21 May 2013, PN615.
56 Transcript, 21 May 2013, PN705.
57 Transcript, 21 May 2013, PN709.
58 Exhibit 12, Email dated 27 May 2010..
59 Transcript, 10 July 2013, PN1250.
60 Transcript, 10 July 2013, PN1253.
61 Exhibit 13, Photograph of office door, dated 19 August 2011.
62 Exhibit 14, Email dated 19 August 2011.
63 Exhibit 16, Emails dated 19 August 2011.
64 Transcript, 10 July 2013, PN1255.
65 Transcript, 21 May 2013, PN1930.
66 Transcript, 21 May 2013, PN608 - PN611.
67 Transcript, 21 May 2013, PN1149.
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