Mr Dave Whitaker v Hoylake Nominees T/A McMahon Burnett Transport

[2015] FWC 6

[2015] FWC 6

FAIR WORK COMMISSION

DECISION

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

Mr Dave Whitaker
v
Hoylake Nominees T/A McMahon Burnett Transport
(U2014/11885)

COMMISSIONER CLOGHAN PERTH, 7 APRIL 2015

Application for relief from unfair dismissal - jurisdictional objection - no dismissal - applicant terminated his own employment and left without notice.

[1] Mr Dave Whitaker (Mr Whitaker or Applicant) has made application to the Fair Work Commission (Commission) seeking a remedy for alleged unfair dismissal from his former employer, Hoylake Nominees T/A McMahon Burnett Transport (Employer).

[2] The application was made pursuant to s.394 of the Fair Work Act 2009 (FW Act).

[3] In response to the application, the Employer asserts that:

● there was no dismissal, the applicant terminated his own employment and left without notice.

[4] This is my decision and reasons for decision on Mr Whitaker’s application.

RELEVANT LEGISLATIVE FRAMEWORK

[5] The relevant statutory framework for consideration are ss.385 and 386 of the FW Act.

[6] Section 385 of the FW Act sets out the meaning of unfair dismissal as follows:

“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and


(b) the dismissal was harsh, unjust or unreasonable; and


(c) ...


(d) ...”

“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.

...”

PROCEDURAL MATTERS

[7] Section 397 of the FW Act requires the Commission to conduct a conference or hold a hearing in relation to facts, the existence of which, is in dispute. In this application, there are facts, the existence of which, is in dispute.

[8] While the Transport Workers’ Union of Australia (TWU), on behalf of the Applicant, requested that the application be dealt with “on the papers”, I conducted a conference pursuant to s.397 of the FW Act. The parties adopted a productive approach to the conference consistent with the objectives of Part 3-2 Unfair dismissal, as set in paragraph 381(1)(b)(i) and (ii), of the FW Act.

CONSIDERATION

[9] The incident which led to the Applicant’s cessation of employment and the Employer’s jurisdictional objection occurred on Tuesday 12 August 2014.

[10] The parties agree that:

“Early on Tuesday 12 August 2014 Mr Manolini briefed the Applicant about the work that needed to be done that day. In particular, Mr Manolini advised the Applicant of urgent minor work that needed to be done to an oversized truck as soon as it arrived.”

[11] The Applicant neither agrees nor disagrees with the Employer’s statement:

● that at approximately 11:30am, the truck arrived and was already running late; and

● shortly thereafter, Mr Manolini looked up and observed the Applicant and the driver of the truck leaning on the back end and talking. The Applicant was not doing any work at that time.

[12] The Applicant maintains the discussion with the driver was in relation to lifting the load back onto its supports; a job which had to be corrected prior to the truck leaving the yard.

[13] Mr Manolini concedes that he was annoyed and “had a go” at the Applicant for standing around and not doing any work.

[14] Following this interaction, the Applicant asserts that he “was told to go home” and advised Mr Manolini that he “could stick his abuse”.

[15] The Employer asserts that the Applicant informed Mr Manolini “that he could ‘stick it’ and do the work himself”. The Applicant agrees that he subsequently left the Employer’s premises but only after he had been given a direction by Mr Manolini to go home.

[16] As he was leaving the immediate work area, Mr Manolini concedes that he stated to the Applicant, “well if that’s your attitude, there’s the gate, keep going”. The Applicant neither agrees nor disagrees with Mr Manolini’s assertion.

[17] From the documentation received by the Commission, both parties have differing views about what took place during the incident. It is not my role to make a finding on each and every assertion by the respective parties.

[18] Mr Burton, the Employer’s Occupational, Health and Safety Compliance Officer, deposes that on the morning of Tuesday 12 August 2014, the Applicant was observed driving a forklift without a seatbelt. Mr Whitaker was reprimanded and advised he would receive a written warning for his unsafe conduct.

[19] The jurisdictional issue of whether Mr Whitaker’s employment was terminated at the initiative of the Employer or not, can be reduced to what happened during the incident between Mr Whitaker and Mr Manolini on 12 August 2014.

[20] I turn first to the Applicant’s verbal interaction with Mr Manolini and whether Mr Manolini‘s words can lead to a jurisdictional finding that Mr Whitaker was dismissed at the initiative of the Employer.

Was Mr Whitaker’s employment terminated at the initiative of the Employer pursuant to paragraph 386(1)(a) of the FW Act?

[21] The Applicant does not contend that he was dismissed, in the ordinary sense, of being terminated either by written correspondence or verbally, with words to the effect of “you’re dismissed”; “you’re finished” or “you don’t have a job anymore”.

[22] The Applicant submits that he was told by Mr Manolini to “go home”. However, at no point in his affidavit, does Mr Whitaker state the actual performative utterances which Mr Manolini used at the time of the incident. If an employee is told to “go home”, and that action is fundamental to his or her case, I find it unusual that the actual words to this effect cannot be stated, especially in contrast to other remarks, which are set out in quotation marks.

[23] After the incident of 12 August 2014, Mr Whitaker went to his General Practitioner and provided to the Employer a medical certificate declaring him unfit for work from 13 to 15 August 2014. In my view, this action is not demonstrative of an employee being dismissed and an employment relationship having come to an end.

[24] Mr Manolini, in his affidavit, indicates that it was Mr Whitaker who walked away from the immediate work environment and he did not dismiss the Applicant. Further, if Mr Manolini had dismissed Mr Whitaker, he would have used words to the effect of “you don’t have a job anymore”.

[25] In the absence of any direct words which indicate that Mr Whitaker was “told to go home” and Mr Manolini’s denial that he told the Applicant to go home, I am reluctant to come to the conclusion that Mr Whitaker was directed to go home. I am more inclined to the view that, after Mr Manolini’s comments to Mr Whitaker, he walked away and, in part, told Mr Manolini that he could “stick” something. I shall examine to the “stick” comment later in this Decision.

[26] Mr Whitaker does not submit that, even if he was told to “go home”, such words demonstrate that he was dismissed at the initiative of the Employer. I agree with this approach.

[27] Alternatively, if Mr Whitaker claims that the form of his dismissal was that Mr Manolini had told him to “go home”, and this was the equivalent of being dismissed, his affidavit states that “on at least 5-6 other occasions”, he had previously been instructed to “go home”. Mr Whitaker does not contend that, on those occasions, he had been dismissed; clearly, he continued to work. The question is, even if the Applicant had been told to “go home”, why should this occasion be treated differently as a dismissal; it cannot.

Notwithstanding the disputed exchange on whether Mr Whitaker was allegedly told to “go home”, did Mr Manolini utter any further words which demonstrate that the Employer had terminated the Applicant’s employment?

[28] As I understand the Applicant’s initiating application, Mr Whitaker asserts that after Mr Manolini “had a go”, Mr Manolini told Mr Whitaker to “go home”. Mr Whitaker states that he responded and said “stuff it you can hook this up yourself and then went home as instructed” 1.

[29] Mr Manolini’s evidence is that his initial comments, Mr Whitaker said words to the effect of, “I don’t need to be treated like this, you can stick it. Do it yourself”.

[30] The evidence of both parties is sufficient to conclude that Mr Whitaker’s response to the initial comments by Mr Manolini, was to tell him to do the job himself.

[31] Mr Manolini’s further written evidence is that upon Mr Whitaker walking away from the immediate workplace, he said to the Applicant, “well if that’s your attitude, there’s the gate, keep going”.

[32] In some respects, Mr Manolini’s forthright evidence could be perceived as detrimental to the Employer’s case. In some circumstances, such language could be construed as an employee’s employment being purportedly terminated at the initiative of the employer. However, the circumstances of this application are not demonstrative of Mr Manolini terminating Mr Whitaker’s employment.

[33] Whether it is true or not, Mr Whitaker’s affidavit is that “every day at work or on a lot of occasions myself and other employees are constantly told, if you don’t like it - there’s the gate” (my emphasis).

[34] The expression “if you don’t like it - there’s the gate”, or similar expressions, is part of the workplace landscape. It is an expression used in the workplace to reflect the view that if a person does not like the work, workplace or people at the workplace, they have the option of leaving. The expression is used, by and large, as a way to remind the person who it is directed at, that he or she, always has the option of removing themselves from whatever is causing them aggravation at the workplace.

[35] In view of the repetitive nature of the comment, and the fact that Mr Whitaker has been the recipient of the expression in the past (and not considered it a dismissal), I do not consider the words, on this occasion, as the Employer terminating Mr Whitaker’s employment.

[36] If Mr Whitaker considered that this expression was demonstrative of his employment being terminated at the initiative of the Employer, it is difficult also to reconcile these comments with him attending a General Practitioner and obtaining a doctor’s certificate stating that he was unfit for work from 13 to 15 August 2014.

[37] Having examined the affidavits and submissions, I have no material upon which I can make a jurisdictional finding that Mr Whitaker’s employment was terminated at the initiative of the Employer pursuant to paragraph 386(1)(a) of the FW Act.

[38] However, I do have an email from Mr Burton to Mr Whitaker which relevantly reads:

“...

As per your request not to engage via Telephone or in person I will outline the Company’s Position. After investigating the events of the 12 August around 12pm, you had an altercation with McMahon Burnett operation Manager. During that discussion you told the Manager that he could stick his job or words to that effect. As a result of your actions we except [sic] that you have therefore Terminated your employment with McMahon Burnett. We would ask that you return all property’s and gate keys back to the Company, on receiving that property McMahon will pay into your account any entitlements that you may be due.

If you wish to discuss this further please do not hesitate to contact me.

...” (my emphasis)

[39] Mr Burton, came to the view that after investigating the incident, Mr Whitaker had terminated his employment by saying to Mr Manolini that he could “stick his job” and leaving the workplace. The parties have characterised this action as Mr Whitaker abandoning his employment or resigning without the giving of notice

[40] I now turn to the issue of whether Mr Whitaker resigned from his employment but was forced to do so because of conduct, or a course of conduct, engaged in by his Employer.

Did Mr Whitaker resign from his employment but was forced to do so, because of conduct or course of conduct engaged in by his Employer pursuant to paragraph 386(1)(b) of the FW Act?

[41] The Applicant, in his Statement of Facts, states that he never resigned from his employment with the Employer 2.

[42] However, in the alternative, the Applicant submits that, should I find that when Mr Whitaker used the words “you can stick the abuse” on 12 August 2014 and left the workplace - he resigned, and was forced to do so by the conduct of Mr Manolini.

[43] Mr Whitaker and Mr Manolini both agree there was an exchange in which Mr Whitaker said words to the effect of “stick it”. Mr Whitaker states that he said to Mr Manolini that he could “stick the abuse”. Mr Manolini asserts that Mr Whitaker said, “you can stick it. Do the job yourself...and walked away”.

[44] If I am to consider whether Mr Whitaker resigned, it is necessary to determine if he resigned. And if he chose to resign, was it because of, or in response to, conduct engaged in by the Employer.

[45] The Applicant put his argument this way - the actions of the Respondent’s representative [Mr Manolini], left me with no alternative but to repudiate my contract of employment.

[46] Mr Whitaker deposes, “I was informed on the morning of 12th August 2014, that he [Mr Manolini] wanted a particular truck to leave the yard, once it arrived - quickly ... and Mr Manolini came up and started abusing me ... Mr Manolini just started with abuse as he has always done ... I said you can stick your abuse ... I only left when I was told to go home.” 3

[47] Mr Whitaker does not depose what the actual words of abuse were.

[48] The only evidence I have of alleged abuse, is from Mr Manolini who states that he went up to Mr Whitaker and said “why are you always fucking standing around?” Mr Manolini deposes that he then started doing the work required of Mr Whitaker and continued his comments, with words to the effect of, “why do you think its your right to stand around talking instead of doing your work”.

[49] With respect to what was said, the actual words are not in contest. Mr Manolini has told the Commission what he actually said, Mr Whitaker states to the Commission that it was “abuse”, but has not given the actual words.

[50] Consequently, the only “conduct” which purportedly led the Applicant to repudiate his contract of employment was Mr Manolini putting to Mr Whitaker the following questions, “why are you always fucking standing around” and “why do you think its your right to stand around”.

[51] I do not consider the use of the word “fucking” in the context of a transport yard sufficient to find that the Employer repudiated its contract of employment with Mr Whitaker. Nor am I able to find that an employer, who enquires into why an employee is not carrying out his or her work, sufficient conduct to demonstrate that the employer has fundamentally, breached the contract of employment to such an extent, that it no longer wanted to be bound by it. Such a scenario would result in a very “low bar” to the concept of constructive dismissal.

[52] In summary, such a submission that Mr Whitaker was forced to resign because of conduct or a course of conduct of the Employer:

• is obviously contrary to the primary contention that Mr Whitaker did not resign;



• is inconsistent with the fact that Mr Whitaker attended his General Practitioner and obtained a medical certificate as being unfit for work commencing the following day. A person who submits that they have resigned, cannot, in my view, affirm an ongoing contract of employment by attending a General Practitioner, obtaining a medical certificate, and seeking to access personal leave pursuant to their contract of employment;



• is inconsistent with Mr Burton’s statement, which is denied by the Applicant, that he had been sacked by Mr Manolini;



• is of itself, insufficient to make a finding of resignation. While the language of Mr Whitaker “you can stick the abuse” expressed his feelings, in my view, to be persuasive of a resignation, it needs to be “paired” with an action. The action, in this case, is leaving the workplace - however, Mr Whitaker continuously asserts that he was told to “go home” and not because he resigned or was forced to resign.

[53] The relationship between Mr Whitaker and Mr Manolini appears to have been prickly. It is uncontested that, in the past, Mr Whitaker went home during his ordinary working hours. Mr Whitaker’s affidavit describes the situation as one in which he was sent home on the verbal instruction of Mr Manolini. Having gone home, Mr Whitaker only received payment for the hours worked but continued with his employment.

[54] Mr Manolini describes the situation, in a different context; that if Mr Whitaker was unwilling to carry out the work as instructed, “he might as well go home”. Mr Whitaker was never instructed to go home or not permitted to be at work.

[55] Having considered the submissions and affidavits provided to the Commission, I find, on the balance of probabilities, that even if Mr Whitaker stated words to the effect, “you can stick the abuse” and left the workplace, this was not a forced resignation. Further, it is important to note that the Employer did not accept Mr Whitaker’s purported resignation immediately, nor did Mr Whitaker withdraw such an alleged resignation. The Employer investigated the incident and spoke to both parties before reaching a conclusion on how the employment relationship ceased.

Relevant events after the incident on 12 august 2014

[56] After completing the work that Mr Whitaker was instructed to do, Mr Manolini spoke to the Transport Manager and advised him of the incident and that he had not seen Mr Whitaker since that incident. Mr Manolini deposes “this was not unusual as David [Mr Whitaker] and I had run ins in the past, and David would always get his back up, have a go and then disappear for awhile before coming back and apologising. I estimate that this had occurred 20 to 30 times. I expected David to come back. When he didn’t, I began to think he had resigned”.

[57] At approximately 4:30 pm on 12 August 2014, Mr Burton was advised that Mr Whitaker had telephoned and requested that he, Mr Burton, telephone him. Mr Burton did so. With the exception of both parties agreeing that the incident occurred, Mr Burton states that Mr Whitaker informed him that Mr Manolini had “sacked” him. Mr Whitaker does not deny in his affidavit that he made such a statement. Mr Whitaker asserts that he informed Mr Burton that he was stressed and would attend a medical practitioner the following day. Mr Burton contends that this was not mentioned during his telephone conversation he had with Mr Whitaker.

[58] I note that at 4:30 pm on 12 August 2014, the Employer had not come to a conclusion as to the outcome of the verbal altercation between Mr Whitaker and Mr Manolini.

[59] On the following day, Mr Burton discussed the incident with Mr Manolini. Having listened to both persons involved in the incident, Mr Burton came to the conclusion that Mr Whitaker had “terminated his employment by walking off the job without giving the requisite two (2) weeks notice”.

[60] After speaking to Mr Manolini, Mr Burton telephoned Mr Whitaker and advised him of the conclusion which the Employer had reached; Mr Whitaker responded, “that’s bullshit”.

[61] Mr Burton attempted to telephone Mr Whitaker on several occasions on the morning of 13 August 2014 and left messages for him to return his call. The next contact from Mr Whitaker was the Employer receiving a facsimile of his medical certificate declaring him unfit for work from 13 August to 15 August 2014.

[62] On 15 August 2014, Mr Burton received a text message from Whitaker apologising [presumably for not returning his telephone calls] and requesting that all communication be in a written form to avoid miscommunication. Shortly afterwards, Mr Burton emailed Mr Whitaker advising that the Employer considered he had terminated his employment without giving the requisite notice.

[63] Before I consider the relevant case law, I am mindful that Mr Whitaker initially put the following in his originating application, “I did not terminate my own employment. I was on personal leave”. The Employer does not contend that Mr Whitaker terminated his employment while on personal leave but at the time of the incident on 12 August 2014.

[64] The Full Bench of the Australian Industrial Relations Commission in ABB Engineering Construction Pty Limited v Doumit [Print N6999] stated:

“... for purposes of the proceedings at first instance, it is for the applicant employee to establish that there was a termination at the initiative of the employer.
...

The principles applicable to determining whether in particular circumstances there has been a termination at the initiative of the employer have been considered by the Industrial Relations Court in a number of cases. In that Court, and in this Commission, the unanimous decision in Mohazab v Dick Smith Electronics (No. 2) (supra) has been adopted as an accurate statement of the primary principles. ... Plainly, a decision whether there has been termination at the initiative of the employer must depend upon the facts and circumstances of the particular case. Because each case depends on the facts established, we are not persuaded that any good purpose is served by seeking to identify refinements to the broad statements made in Mohazab. We consider the relevant principle is sufficiently summarised in a recent decision of a Full Bench on another section 170ECA appeal about the principle crystallised in Mohazab:

“That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.”


Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[65] When considering the above decision, it is necessary to ask the question, “was the conduct of the Employer judged objectively, including its intention, sufficient to allow the Applicant to claim that he was forced to resign?”

[66] I am unable, on balance, to come to the view, objectively judged, that the Employer’s conduct was sufficient to force Mr Whitaker to resign with words which Mr Whitaker describes generally as abuse. My reasons are as follows:

• the day of the incident, Tuesday, is considered by the Employer, to be its busiest day of the week. I note that the Applicant has a different “opinion”;



• the Applicant was aware of the necessity to get the freight onto the truck to ensure it left the workplace depot by Tuesday evening;



• both parties agree that early on Tuesday, 12 August 2014, Mr Manolini briefed the applicant on what work had to be completed that day, particularly the work that had to be completed on the oversized truck as soon as it arrived;



• Mr Manolini’s language, while robust, is not something unexpected in a transport depot in the above circumstances of having a job completed urgently; and



• historically Mr Whitaker and Mr Manolini had, on occasion, a pugnacious relationship, but one in which both had worked out the means by which they returned to their respective corners and carried on working with each other. I do not consider that the behaviour before, and on 12 August 2014, was intended or calculated by the Employer to destroy the employment relationship.

[67] Accordingly, I am satisfied that the conduct judged objectively was not sufficient of the Applicant to claim he was forced to resign.

[68] The incident on 12 August 2014 appears to have been a repetition of a feisty relationship. However, on this occasion, Mr Whitaker informed Mr Manolini, that he could do the work he himself had been instructed to carry out. Having walked away from the immediate workplace, Mr Whitaker then left the transport depot. I am not satisfied that he was told to go home but was told “if you don’t like it [having to do work as instructed] - there’s the gate.” - a everyday workplace expression.

[69] Applications such as these are difficult, especially when the evidence is contradictory between the two main protagonists. However, Mr Manolini was right to challenge the lack of work on the oversized truck. After being challenged, I am satisfied, on balance, that Mr Whitaker made comments which can fairly be described as not wanting to be bound by a lawful direction and then left the workplace. Attending a General Practitioner on the following day does not disturb Mr Whitaker’s actions on the previous day.

[70] There is no evidence that the Applicant was dismissed.

[71] There are no convincing objective reasons why Mr Whitaker was forced to resign as a result of conduct of the Employer.

[72] For Mr Whitaker to be protected from unfair dismissal, he must be dismissed. While this may seem obvious, the circumstances giving rise to a dismissal are not always as “clean” such as a letter terminating an employee’s employment. This application is one of those applications in which the dismissal is not as “clear cut” as a letter of termination of employment. However, there is no evidence to demonstrate Mr Whitaker was dismissed by the Employer or was forced to resign as a result of the conduct of the Employer. Mr Whitaker simply took issue with Mr Manolini’s comments, told him he could do the work himself and left the workplace.

[73] There are two parties to the contract of employment. If one party behaves in such a way that he or she abandons or refuses to observe their side of the contact - the other party has a choice whether to accept that behaviour or of the contract of employment consider it a repudiation of their contract of employment; the Employer, on this occasion accepted Mr Whitaker had repudiated his contact of employment and brought the relationship to an end.

CONCLUSION

[74] For the above reasons, I find that the Applicant was not dismissed by the Employer pursuant to s.386(1) of the FW Act. As a consequence, the Commission has no jurisdiction to deal with the application and it must be dismissed. An order to this effect is issued jointly with this Decision.

COMMISSIONER

Final written submissions:

Applicant: 12 November 2014.

Employer: 15 October and 19 November 2014.

 1   Applicant’s application

 2   Applicant’s statement of facts (4)

 3   Mr Whitaker’s affidavit

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