Mr Danny Love v Alcoa of Australia Limited T/A Alcoa World Alumina Australia
[2012] FWA 4300
•24 MAY 2012
Note: An appeal pursuant to s.604 (C2012/4201) was lodged against this decision - refer to Full Bench decision dated 10 August 2012 [[2012] FWAFB 6754] for result of appeal.
[2012] FWA 4300 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Danny Love
v
Alcoa of Australia Limited T/A Alcoa World Alumina Australia
(U2011/14955)
COMMISSIONER CLOGHAN | PERTH, 24 MAY 2012 |
Unfair dismissal remedy.
[1] This is an application by Mr D Love (“the Applicant”) seeking a remedy for alleged unfair dismissal from his employment with Alcoa of Australia Limited T/A Alcoa World Alumina Australia (“the Employer” or “Alcoa”).
[2] The application was made on 23 December 2011 pursuant to s.394 of the Fair Work Act 2009 (“the FW Act”)
[3] The matter was not resolved at conciliation on 31 January 2012 and was referred to me for arbitration on 3 February 2012.
[4] On 17 February 2012, I issued procedural directions for an arbitral hearing on 26 April 2012.
[5] At the hearing on 26 April 2012, Mr Love was represented by Mr T Petherick of counsel and evidence given by:
● Mr Love;
● Mr Laurie Preston, Trades Assistant, AWU, Pinjarra Alumina Refinery (Pinjarra Refinery), Site President until February 2012 and for over three (3) years full-time Convenor;
● Mr Willy Hope, Trades Assistant and full-time AWU Pinjarra Refinery Site Convenor from November 2011. Deputy Convenor for six (6) to seven (7) years;
● Mr Stuart Allen, Process Operator, current AWU President of the Pinjarra Refinery site;
● Mr Greg Reynolds, Serviceman.
[6] Alcoa was represented by Mr M Vallence, Consultant and evidence given on behalf of the Employer by:
● Mr James Muir, Residue Supervisor and Mr Love’s line manager;
● Ms Clare Love (no relation) at the time of the Applicant’s cessation of employment, Acting Employee Relations Consultant; and
● Mr Craig Gleeson, Human Resources Manager.
[7] As part of the procedural directions, both parties provided a significant volume of material to the Tribunal. This material was relied upon and incorporated into proceedings. Having received the documentation, heard oral evidence and submissions, I reserved by decision. This is my decision and reasons for decision.
RELEVANT BACKGROUND FACTUAL MATTERS
[8] At the time of Mr Love’s cessation of employment, he was employed in the Residue area. Mr Love’s direct supervisor was Mr Muir.
[9] The Residue area receives waste produced at the Refinery. The Refinery produces three (3) types of waste: bauxite residue which is the sand/mud portion left over when the alumina has been extracted from the bauxite; recyclable material and general refuse.
[10] As part of his duties, Mr Love was required to take waste to the Residue area which was commonly referred to as the “tip”.
[11] On an occasion, which was not specified, Mr Love took waste to the tip and retrieved copper wire.
[12] Pursuant to a search warrant, Mr Love’s home was attended by Western Australia Police (WA Police) on either 13 or 14 November 2011. As part of the search, the WA Police photographed and asked Mr Love where he obtained the copper wire. Mr Love stated that it was from Alcoa’s Residue area.
[13] At this point, it is necessary to emphasise, and highlight, that the uncontested evidence of Mr Love was that the search warrant issued by the WA Police related to his son and there was no suggestion, in the hearing, that he was involved in any criminal activity.
[14] Mr Love gave evidence that he intended to use the copper wire to either make a gift or take to a scrap yard, which if sold, would have a “low value” 1
[15] Subsequent to the attendance at Mr Love’s home, WA Police contacted Alcoa and made it aware of the copper wire and Mr Love’s admission that it came from the Employer’s tip.
[16] Having been made aware of copper wire at Mr Love’s home, Alcoa commenced an inquiry into the matter.
[17] Against this background, Mr Love’s employment with Alcoa ceased. The recollection and interpretation of the facts of Mr Love’s cessation of employment was the subject of much dispute between the parties and their respective witnesses.
SUMMARY OF APPLICANT’S SUBMISSIONS
[18] Mr Love submits and contends that:
● he did not resign from his employment with Alcoa;
● if it is found that he did resign, the resignation “amounts to unjustified constructive dismissal” 2;
● in the alternative, he was dismissed and this dismissal is contained primarily in an email communication of 15 December 2011 or possibly earlier 3;
● there was no ground for summary dismissal by the Employer as there was no evidence that the copper wire was the property of Alcoa and it could have been the property of a third party such as a contractor;
● the copper wire was abandoned and the taking of such property does not constitute theft within the meaning of the Criminal Code Act; and
● Alcoa’s investigation into information received from the WA Police was perfunctory, unfair and pre-determined.
SUMMARY OF EMPLOYER’S SUBMISSIONS
[19] Alcoa submits and contends that:
● on 15 November 2011, it was informed by WA Police that Mr Love was in possession of copper wire taken from its Pinjarra Refinery site;
● it made a preliminary enquiry and found that none of its staff had authorised removal of the copper wire;
● Mr Love was invited, as part of the disciplinary inquiry, to a meeting on 2 December 2011 with the Site Convenor, Mr Hope;
● prior to the meeting on 2 December 2011, Mr Hope was advised by the Employer of the issue to be discussed and that the taking of the copper wire, subject to the outcome of the inquiry, could result in the termination of Mr Love’s employment;
● Mr Love and Mr Hope met prior to the meeting on 2 December 2011;
● Mr Love declined to attend the meeting at the schedule time on 2 December 2011;
● subsequent to his meeting with Mr Hope, Mr Love contacted Mr Muir and advised him that, as a result of his discussions with the AWU, he would be resigning from his employment;
● Mr Hope attended the meeting on 2 December 2011 and notified Mr Gleeson and Ms Love of Mr Love’s resignation;
● Mr Love reiterated his resignation of employment to Ms Love on 12 December 2011;
● Mr Love was not dismissed by the Employer;
● by resignation, Mr Love’s employment ceased on 16 December 2011;
● at no time did Mr Love seek to retract his resignation;
● the conduct of Mr Love between 2 and 16 December 2011 was indicative of having resigned from his employment;
● the Employer did not engage in conduct or a course of conduct to force Mr Love to resign;
● Mr Love elected not to pursue various options available to him in The Alcoa World Alumina Australia Pinjarra Refinery AWU Enterprise Agreement 2011 (“the Agreement”) to challenge the decision to dismiss him (which is denied) which would have resulted in the dismissal being “suspended” until the procedure/processes in the Agreement being exhausted; and
● in the alternative, if it is determined that Mr Love’s employment ceased at the initiative of the Employer, it could not be characterised as harsh, unjust or unreasonable.
RELEVANT STATUTORY PROVISIONS
[20] Prior to the Tribunal considering the merits of an application seeking a remedy for unfair dismissal, it is necessary to determine whether the Applicant is protected from unfair dismissal. This provision is found at s.396 of the FW Act as follows:
● 396 Initial matters to be considered before merits
FWA must decide the following matters relating to an application for an order under Division 4 before considering the merits of the application:
(a) …
(b) whether the person was protected from unfair dismissal;
(c) …
(d) …
[21] Unfair dismissal occurs when the Tribunal is satisfied that the person has been dismissed in accordance with the provisions in s.385 of the FW Act as follows:
Division 3—What is an unfair dismissal
● 385 What is an unfair dismissal
A person has been unfairly dismissed if FWA is satisfied that:
(a) the person has been dismissed; and
(b) …
(c) …
(d) …
[22] The meaning of dismissed is found at s.386 of the FW Act 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.
(2) …
(3) …
RELEVANT PROVISIONS OF THE ALCOA WORLD ALUMINA AUSTRALIA PINJARRA REFINERY AWU ENTERPRISE AGREEMENT 2011 (“the Agreement”)
[23] The relevant provisions of the Agreement referred to in the hearing is as follows:
Clause 17: Disciplinary Procedures
17.1 Disciplinary action up to and including suspension without pay or
termination may be applied at times at the discretion of the Company. Prior
to the application of the discipline, where the employee elects to have a
representative, the form of discipline will be discussed with their
Representative (e.g. Shop Steward or Site Convenor).
17.2 If it is deemed appropriate by the Company that the employee be stood
aside, the AWU Senior Site Employee Representative will be notified prior
to the employee being stood aside. Any such standing aside will be without
loss of pay or entitlement until the Company makes its decision on the
disciplinary action, if any, to apply. It is expressly agreed that the standing
aside of employees will not be prevented as a result of such standing aside
being placed in dispute (i.e. the status quo provisions of clause 18 will not
apply in circumstances where the standing aside of an employee is put into
dispute).
17.3 Supervision (sic) will conduct an inquiry into the incident, which will involve the
employee, relevant Shop Steward and any other appropriate personnel.
17.4 If the Company takes a decision to dismiss an employee, the Union shall
be notified prior to the dismissal taking effect and may put the matter in
dispute. If, prior to the termination being activated, the Union has chosen to
put the matter in dispute (which is agreed to be the only time the Union can
do so under this Agreement), the case will be referred under Stage 4 of
clause 18 in the dispute resolution procedure, bypassing other levels of the
disputes procedure. The continuation of pay and entitlements will be on the
condition that no industrial action is taken over the matter.
17.5 The provisions of sub-clause 17.4 above will only apply to employees who
have completed the minimum employment period as defined by the Act.
17.6 The parties agree to accept any decision and abide by the decision-making
processes of Fair Work Australia.
17.7 Nothing affects the right of the Company to dismiss any employee without
notice for serious misconduct and in such cases payment will be made up
to the time of dismissal only.
Clause 18: Dispute Resolution Procedure
18.1 The parties recognise that the emphasis is on problem solving and
conciliation as a satisfactory means to resolve issues. The parties
undertake to, at all times, remain committed to the satisfactory and timely
resolution of issues. Accordingly, all disputes including disputes in relation
to the National Employment Standards will be progressed in accordance
with the relevant procedure prescribed below.
18.2 Grievance Procedure
(a) The parties agree to process any grievance or other matter in dispute
in accordance with this procedure. The status quo will be observed
while the issue is being progressed. For the avoidance of doubt, if the
dispute relates to management‘s decision to utilize contractors
pursuant to Clause 22 – Labour Hire and Contractors of this
Agreement, it is expressly agreed that the status quo requirements of
this sub clause shall not prevent or delay the performance of such
work by contractors
(b) The parties are committed to the satisfactory and timely resolution of
issues, by those most directly involved, as appropriate.
(c) Consistent with the intent of paragraphs (a) and (b) hereof, the
procedure to be followed is:
(i) The employee with the grievance will raise the problem with the
immediate supervision (sic). Every effort will be made to resolve the
issue within two working days or any agreed extension. The
relevant Shop Steward may, at the request of the employee,
become involved during this period;
(ii) If not settled, the issue will be submitted to the next level of
Company authority and the relevant Site Union Convenor.
Every effort will be made to resolve the issue within a further
two working days or any agreed extension;
(iii) If not settled, the issue will be progressed to include other
appropriate Company representatives, relevant Site Union
representatives and Union Officials. Discussions will continue
for as long as is necessary, but every effort will be made to
resolve the issue within seven days; and
(iv) If the issue cannot be resolved through this mechanism it will
then be referred to Fair Work Australia (FWA) for resolution and
settlement of the dispute. If the initiator of the dispute does not
lodge it in FWA within 5 working days, this dispute is withdrawn
from the dispute resolution process and is considered resolved.
(d) Until the matter is determined in accordance with the above
procedure, work will continue normally
(my emphasis)
CONSIDERATION
[24] It is well recognised that the Tribunal does not have to address every point raised before it in proceedings. The focus of the Tribunal must be on what is relevant. The central issue before me is whether Mr Love is statutorily protected from unfair dismissal. In determining this issue, I need to consider whether Mr Love resigned from his employment with Alcoa on 2 December 2011. Further, if Mr Love did resign, was it voluntary or was he forced to resign because of conduct or a course of conduct of the Employer. Alternatively, if he did not resign, whether he was dismissed on 15 December 2011 or possibly earlier.
[25] I emphasise that it is not the role of the Tribunal to determine whether the taking of the copper wire constitutes stealing pursuant to the State or Federal Criminal Codes.
[26] A disturbing characteristic of the hearing was the amount of contested factual evidence between the parties.
[27] Notwithstanding the amount of contested evidence, there is no dispute about the originating incident which ultimately led to Mr Love’s cessation of employment with Alcoa. For without this incident, this application may never have come to the Tribunal and the actions of the parties and their representatives would not have occurred.
[28] There is no dispute that WA Police executed a search warrant on or around 13 or 14 December 2011. While executing the search warrant, Mr Love admitted to WA Police at the time, or shortly thereafter, that the copper wire had been taken from Alcoa’s Pinjarra Refinery site 4. The copper wire was seized and photographed by WA Police. Subsequently, Mr King, the Employer’s Stores Supervisor, was advised of the police actions. This information was relayed by Mr King to Ms Love who, in turn, made the initial contact with WA Police.
[29] Subsequently, Ms Love and her immediate manager, Mr Gleeson contacted WA Police to further discuss the matter. As a consequence of this discussion, Mr Gleeson determined to conduct an internal inquiry. WA Police forwarded the photographic images of the copper wire to Alcoa.
[30] On or about 21 November 2011, Ms Love informed Mr Muir of the actions of WA Police and photographs of the copper wire. Ms Love and Mr Muir agreed to arrange a meeting with Mr Love and seek an explanation on why he had taken the copper wire.
[31] Mr Love was on annual leave from 6 to 20 November 2011 and a meeting was tentatively arranged for 24 November 2011. Following the tentative meeting arrangement, Mr Muir was advised by another employee that Mr Love would not be attending for his next round of shifts - 2 days (12 hour shifts) and 2 nights (12 hour shifts) - 6 days off. It was indicated to Mr Muir that Mr Love was taking sick leave.
[32] Mr Love was due to resume work on 3 December 2011. On 30 November 2011, Mr Muir was advised by Ms Love that a meeting was scheduled for 2 pm on 2 December 2011.
[33] Mr Love was advised by Ms Love of the meeting scheduled on 2 December 2011. While much of the content of the conversation is in dispute, I am satisfied that Mr Love was not informed of the purpose of the meeting but gained the impression that he had to be at the meeting and it was important 5.
[34] Unbeknown to Mr Love, site officials of the AWU had been briefed on the information Alcoa had received from WA Police. While much of the content of the interaction between representatives of the AWU and Alcoa’s officers is in dispute, there is some reliable fundamental evidence.
[35] Approximately 10 days before the scheduled meeting with Mr Love on 2 December 2011, Mr Hope was advised by Mr Gleeson that “something” was coming his way. On pressing Mr Gleeson, Mr Hope contends that he stated that “someone stole something”, but Mr Gleeson would not elaborate or explain what the matter was about except to say, “I can’t disclose any more until we get the facts” 6.
[36] While Mr Hope frequently cited conversations in which Mr Gleeson or Ms Love commented that Alcoa property had been “stolen”, his conversation with Mr Gleeson, 10 days before 2 December 2011, also reveals Alcoa’s intention and desire to get to the “facts”.
[37] As a primary finding of fact, I find that: Mr Love had admitted to WA Police that he had taken the copper wire from Alcoa’s property; there was no documentation to suggest that its removal had been authorised; and finally, that Mr Love would have been given the opportunity to explain his view of events on 2 December 2011.
[38] Prior to the scheduled 2 December 2011 meeting with Mr Love, Mr Hope gave evidence that he had at least two discussions with Mr Gleeson. Mr Hope gives evidence that he raised the issue as he was “testing the waters to see how hard the company was going to be on it” 7. Having done that, Mr Hope gave evidence that both Mr Gleeson and Ms Love responded with words to the effect of “he is gone, don’t even bother trying”8.
[39] Both Mr Gleeson and Ms Love deny making such statements 9. Both Alcoa representatives state that Mr Hope was informed as the AWU Site Convenor that if Mr Love had taken the copper wire without authorisation, it would be considered serious misconduct justifying summary termination of his employment. However, Alcoa would accept a resignation10.
[40] While in some respects, I agree with Mr Petherick, that in the absence of interviewing Mr Love, Mr Gleeson may have been “jumping ahead” of himself. However, I am unable to infer, as suggested by Mr Hope, that prior to the meeting with Mr Love on 2 December 2011, Alcoa had already made the decision to terminate his employment.
[41] The process of making inferences or deduction from primary facts is difficult enough but more demanding when there is a conflict in the oral evidence. However, in these circumstances, I cannot but observe that in the overall picture, Mr Gleeson’s comments would not be out of the ordinary for a long established Human Resources Manager and that Mr Hope had only been newly appointed as Site Convenor. For Mr Hope, this was his second disciplinary matter since taking on the role on 1 November 2011. In his own words, he “didn’t want to have two (2) poor results in a row” 11.
[42] As a finding of fact, by the morning of 2 December 2011, there is nothing to suggest that Alcoa had failed to follow any fair process or procedure concerning Mr Love. It is possible to argue, as Mr Petherick submitted, that Mr Love should have been informed of what the scheduled meeting of 2 December 2011 concerned. However, it is notable that he was unable to give evidence of who advised him verbally of the meeting and he agreed to attend. Despite the Applicant’s attempt to portray the meeting as an “ambush”, I am satisfied that in view of the finding of the copper wire in the execution of the search warrant, the photographs and a video interview in which he admitted that he had taken the material from Alcoa’s property, it is reasonable to conclude that Mr Love knew that the meeting was probably concerning the copper wire and it was a serious issue. I am not prepared to find that the specific lack of advice about the purpose of the meeting on 2 December 2011 was part of an orchestrated process to dismiss Mr Love by Alcoa.
[43] I now turn to the meeting between Mr Love and Mr Hope before the scheduled meeting on 2 December 2011.
[44] Mr Hope advised Mr Love of the purpose of the meeting and that, in his view, the Employer was going to terminate his employment. Further, Mr Hope had made enquiries from current and former AWU site officials and formed the view that, “I can’t see how we can fight this” 12. Or as Mr Hope put it in his evidence, “general theft amounts to serious misconduct”13. Based on his conversation with Mr Hope, Mr Love made the decision not to attend the meeting at 2:00 pm.
[45] The difficulties I have with the conversation between Mr Love and Mr Hope are numerous. Mr Love throughout his evidence, both written and oral, downplays the amount of copper wire, the fact that it was abandoned, it has little value and the whole issue was about “taking a bit of rubbish off the tip” 14. However, when told of Mr Hope’s perception that he was going to be terminated, he made the decision not to attend and explain himself. If Mr Love viewed the issue as trivial, it is at odds with his failure to attend the meeting and put his case.
[46] Mr Love states that Mr Hope informed him “they are going to get rid of you” 15. This evidence is consistent with Mr Hope’s written evidence. However, in oral examination in chief Mr Hope states that he said to Mr Love, “I’m pretty sure they want to terminate you”16 but he was also asked:
“What was your impression of the company position prior to the meeting of 2 December?---That the company was going to stand down Danny.” 17
[47] In cross examination, Mr Hope gave evidence that he said, “...they are definitely going to terminate him [Mr Love]. They are going to try and terminate him [Mr Love]” 18 (my emphasis).
[48] Whether Mr Hope’s perceptions of what the Employer was likely to do with Mr Love’s employment is accurate, is not entirely the issue. Mr Hope had sought advice on the same morning from others and relayed those comments to Mr Love. My impression is that that advice from other AWU personnel, as relayed by Mr Hope, was as significant as the discussions he had held with the Employer.
[49] Mr Hope’s written evidence states that he raised with Mr Love the possibility of resignation and severance 19. I consider this evidence to be preferred to his oral evidence where he asserts that resignation was not discussed, “not at all”20. From the evidence, I find that Mr Love and Mr Hope discussed the issue of resignation and their discussion concluded on the basis that Mr Hope would seek to get the best possible termination payment for Mr Love.
[50] Mr Hope, consistent with his commitment to Mr Love, raised the issue of termination payment with both Ms Love and Mr Gleeson. Subsequently, Mr Hope advised Mr Love that the best outcome was two weeks pay.
[51] Shortly after the meeting between Mr Love and Mr Hope on 2 December 2011, it is uncontested that Mr Love made a telephone call to Mr Muir. In his written evidence, Mr Love maintains that he advised Mr Muir that he was not attending the meeting because he was going to be sacked. Mr Muir’s written evidence was that the discussion was more extensive and that Mr Love informed Mr Muir that he had spoken to the AWU and would be resigning. Mr Muir made the assumption it would be immediate. Notwithstanding being advised of his resignation, Mr Muir counselled Mr Love to attend the meeting to give “his side of the story” 21.
[52] Despite Mr Love’s representative putting to Mr Muir a particular construction to the words “would be resigning”, in the overall totality of the circumstances and evidence, I prefer the reliability and credibility of Mr Muir’s evidence that Mr Love resigned from his employment.
[53] In reaching this conclusion, I am comforted by the fact that Mr Hope pursued with the Employer the most favourable termination payment for Mr Love with Ms Love, and subsequently Mr Gleeson. Further, that Mr Hope relayed the outcome to Mr Love.
[54] After his discussion with Mr Muir, Mr Love did not attend work as scheduled for four (4) shifts without any explanation or notification to the Employer.
[55] On 7 December 2011, Ms Love, as part of human resources process, pursued with Mr Muir, the Applicant’s written resignation. Mr Muir, in turn, telephoned Mr Love. Mr Love does not give evidence of the telephone conversation but Mr Muir states in his evidence, which was not contested, that Mr Love advised him that, “he was looking at his options and suggested to me [Mr Muir] that he [Mr Love] had not been given proper advice by the AWU” 22.
[56] On the following day, 8 December 2011, the incident of Mr Love taking the copper wire was discussed between Messrs Gleeson, Preston, Hope and Allen. Mr Preston raised the issue following telephone conversations with both Mr Love and one of his co-workers. While the content of the discussion was the subject of considerable difference, it would be wrong to consider that this requires any determination on my part. The simple fact is that subsequent to this meeting, Mr Preston advised Mr Love that the AWU could not assist him any further.
[57] It was not disputed that subclause 17.4 of the Agreement was not activated, that is, “If the Company takes a decision to dismiss an employee, the Union shall be notified prior to the dismissal taking effect...”. Further, it is not contested that the AWU did not choose for the matter to be the subject of a dispute pursuant to Clause 18: Dispute Resolution Procedure. While the reasons for not doing so were explored in the hearing, I am not required to make any determination because the evidence before me was that Mr Love resigned and the clauses in the Agreement are conditional on the Employer making a decision to dismiss an employee which it did not and is discussed later in this Decision.
[58] On 12 December 2011, Ms Love spoke with Mr Love seeking a resignation letter. Ms Love reminded Mr Love that the resignation was to take effect, as agreed with Mr Hope, on 16 December 2011. While Mr Love’s recollection of the telephone conversation is vague and uncertain, he is clear that he did not say to her that he was not resigning 23 but acknowledges that he did say, “I guess that I will have no option but to resign”24.
[59] To conclude, I am satisfied from the totality of facts that Mr Love resigned on 2 December 2011. In my view, the Applicant’s portrayal of events after 2 December 2011 does not, and could not, lead to the drawing of an inference that he had not resigned. Finally, in case there is any misunderstanding of my assessment of the facts, I do not find that Mr Hope tendered Mr Love’s resignation. What I do find is that Mr Hope notified Mr Gleeson and Ms Love of Mr Love’s decision to resign. Shortly after his meeting with Mr Hope, Mr Love gave his resignation to Mr Muir. Mr Hope’s role was to secure the best possible outcome for the AWU member.
[60] Mr Petherick put the submission that should I find that there has been a resignation that such a resignation was forced as a result of the conduct or course of conduct of the Employer.
[61] I am unable to accept such a submission in view of the evidence that was provided to the Tribunal. In Mr Love’s cross examination, the following exchange took place.
“There's four separate options that were available to you. So to say that you had no other option is not correct, is it?---Well, that was the impression I got from Willie, that he said, "They're going to sack you."
That was from Willie?---Yes.
It wasn't an impression that you got from Clare Love?---No. It was from Willie at the start.
It wasn't an impression you got from Jamie Muir?---Definitely not from Jamie Muir.
It wasn't an impression you got from Matthew Gleeson?---Definitely not from Matt Gleeson. I've never even spoken to him.
I put it to you that the reality is that you had Willie Hope notify Alcoa that you were resigning and that you spoke to Jamie Muir, and that will be the evidence of Alcoa, and told him personally that you were resigning, and I put it to you that that was because you were shocked with the situation that you were in. That was the reality of the situation, isn't it?---No.
The reason why we're here is actually because you had second thoughts about your decision to resign, probably after talking to some other people. Is that correct?---No.
That strikes me as interesting. So why didn't you attend for work the following day and participate in the process or ask somebody what was next?---Because I was upset and just - - -
Let's explore that a bit further. When somebody is upset with work, do you expect that it's okay for them to simply not turn up the next day?---No. Well, I thought they were sacking me.
Did you clarify that with anybody?---No.
You didn't tell anyone that you wouldn't be coming to work the next day, did you?---No.
You weren't incapacitated or unable to attend and chose not to?---I wasn't sleeping very well and I wouldn't have been able to come even if I had planned on coming.
Then you just didn't come back to work after that, did you?---No.” 25
[62] The nature of the incident that led to Mr Love’s resignation was fairly straightforward. The copper wire had been found at his home, he admitted to WA Police that it came from Alcoa’s property and the Employer’s preliminary investigation revealed that Mr Love had not sought authorisation to take the copper wire off the premises. Having received these facts, Alcoa intended to give Mr Love the opportunity to respond on 2 December 2011.
[63] I am not able to discern any pre-determined outcome. What I am able to discern is that the Employer made it clear that if the information they were aware of translated into established and confirmed facts, then Mr Love faced the prospect of a charge of serious misconduct which could result in his dismissal. There is nothing particularly controversial about such circumstances and Alcoa was aware that fairness demanded Mr Love be given the opportunity to provide his explanation before any adverse action was taken.
[64] Mr Hope was being open and candid with Mr Love when he advised him of Alcoa’s position. Mr Hope equivocated on whether the Employer was “going”/”trying”/”pretty sure he was to be terminated”; or he was going to be stood down. However, notwithstanding this equivocation, Mr Hope’s contact with other AWU site officials provides sensible advice which was neatly summarised by Mr Preston when he gave evidence.
“That's because the AWU's view on stealing is the same as Alcoa's in its organisational standard, isn't it? It's serious misconduct?---Our view of serious misconduct is certainly very similar to the company's. We work for the same organisation. We have the same views and standards. Our views of perhaps the seriousness of an individual situation will often vary.” 26
“But taking something from Alcoa's property without authorisation is theft, isn't it?---Yes, in any situation, whether it's Alcoa or anything.” 27
“It's theft, isn't it?---If it ain't got your name on it, you don't touch it.” 28
[65] While I do not, and should not, make a finding of whether Mr Love was stealing, the sentiments from Mr Preston are sensible and in the best interests of employees avoiding disciplinary action against them. It is difficult to see how anyone could argue to the contrary with Mr Preston’s position.
[66] Having considered the actions and evidence of Mr Muir, Mr Gleeson and Ms Love, I am unable to draw the inference that their conduct or course of conduct forced Mr Love to resign. I interpret the situation as simply Mr Love being aware of Alcoa’s position according to Mr Hope, the assessment of AWU site officials (and former officials) of such circumstances and his own knowledge of the facts; accordingly, Mr Love made the decision to resign.
[67] Having made the decision to resign, Mr Love may have had second thoughts. However, his resignation was binding and no construction of events after 2 December 2011 can remediate Mr Love giving resignation to Mr Muir.
[68] The final issue for determination is whether the Applicant was dismissed from his employment on 15 December 2011 or possibly earlier.
[69] Mr Petherick put the position that “if there wasn’t a resignation, then by definition there must be a dismissal” 29. I cannot agree with that proposition.
[70] Having considered submissions and evidence and found that Mr Love resigned on 2 December 2011, if I agreed with Mr Petherick’s proposition then, by extension, there could not be a dismissal. While such a proposition is attractive and expeditious, I am not persuaded to deal with the matter in such a way.
[71] Mr Petherick, for the Applicant, submitted that:
“Mr Love is directed to not attend for the performance of work for the remainder of his notice period. So clearly the employer has terminated the relationship, but there’s been no resignation” 30.
[72] It is true that Mr Love was directed to not attend for the remainder of his notice period. However, the direction should not be taken in isolation but given its natural meaning in context. The context of the email is as follows:
“...Mr Love has in fact resigned from his employment with Alcoa (initially through his union representation and later with a direct discussion with me) effective 16 December 2011.
Alcoa has accepted Mr Love’s resignation and, further, has taken a decision not to accept the attempt made by you (on behalf of Mr Love) to retract his resignation (which, as you would be aware, Alcoa is entitled to do);
On the basis of the above, Mr Love’s employment with Alcoa will be terminated effective 16 December 2011 (as a consequence of his resignation);
Mr Love’s authorisation to attend the Pinjarra Alumina Refinery (in the specific absence of a request to do so by an approved representative of the company) has been revoked. As a result, Mr Love is directed not to attend for a performance of work for the remainder of his notice period; and...
We trust the above clarifies the position of the Company.” 31
[73] Viewed broadly or narrowly, from the evidence, I am unable to come to the conclusion that Alcoa terminated Mr Love’s employment. Further, I am unable to follow Mr Petherick’s argument that, by definition, in the absence of resignation, an employee must have been dismissed. While the Applicant’s counsel attempted to establish a connection between resignation and dismissal, it does not follow that the absence of resignation verifies that a dismissal has occurred. Because I arrived at the Tribunal this morning and do not have a car is not evidence that I walked to work.
[74] Finally, the Applicant, neither by witness statement nor in his evidence, identified any documents or actions of Alcoa from which I am able to conclude that he was dismissed earlier than 15 December 2011. It is not uncommon for employers to excuse employees from working their notice periods notwithstanding that the employee remains employed (and receives remuneration for) that period.
[75] Having considered all the facts and evidence presented to the Tribunal, I find that Mr Love resigned from his employment on 2 December 2011. This resignation was not forced by conduct or course of conduct of Alcoa. Further, Mr Love was not dismissed at the Employer’s initiative. In view of these determinations and the reasons given, I must conclude that Mr Love has not been dismissed in accordance with subsection 386(1) of the FW Act. Accordingly, I must dismiss the application and issue an Order to that effect.
COMMISSIONER
Appearances:
Mr T Petherick of counsel for the Applicant.
Mr M Vallence, for the Respondent.
Hearing details:
2012:
Perth,
26 April.
1 Exhibit A4 page 13.
2 Applicant’s submission - paragraph 3.
3 Transcript PN1867 and PN1873
4 PN 183
5 PN63 and PN64
6 Exhibit A7 paragraph 5
7 Exhibit A7 paragraph 9
8 Exhibit A7 paragraph 6
9 PN 1472 and PN 1785
10 Exhibit R7 paragraph 12
11 Exhibit A7 paragraphs 11 and 13
12 Exhibit A4 paragraph 22
13 Exhibit A6 paragraph 15
14 PN 266
15 Exhibit A4 paragraph 22
16 PN 883
17 PN 881
18 PN 1086
19 Exhibit A7 paragraphs 15 and 18
20 PN 1091
21 Exhibit R6 paragraph 32
22 Exhibit R6 paragraph 38
23 PN 394
24 Exhibit A6 paragraph 28
25 PN 332 to PN 343
26 PN 737
27 PN 750
28 PN 751
29 PN 1873
30 PN 1863
31 Exhibit A3(8)
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