Mr David Hamann v Thiess Pty Ltd
[2012] FWA 9473
•7 NOVEMBER 2012
[2012] FWA 9473 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr David Hamann
v
Thiess Pty Ltd
(U2012/10850)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 7 NOVEMBER 2012 |
Summary: application under s.394 - jurisdictional objection - whether Applicant dismissed or forced to resign - volition - odious conduct - whether cognitively impaired at time of resignation.
[1] On 22 June 2012, Mr David Hamann (“the Applicant”) lodged an application under
s.394 of the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy in relation to an alleged decision taken by his employer, Thiess Pty Ltd (“the Respondent”) to dismiss him from its employment.
Background
[2] The Applicant had been employed as a bulldozer operator with the Respondent and had performed such duties for three years and nine months at the time of his alleged dismissal.
[3] On 13 June 2012 the Applicant was involved in an incident which was to culminate in the cessation of his employment relationship. On that day, the Applicant was operating a bulldozer squaring up the tip head. It appears that a tyre had been placed some distance away from where the Applicant was performing his duties. The tyre functions as a boundary marker for his work area.
[4] It appears that a dump truck entered the work area - some 600m distant from the Applicant’s activities - and indicated its presence by two-way radio. The Respondent contends that the Applicant directed the dump truck driver to dump her load in a certain position in his immediate work area.
[5] At a point shortly thereafter the Applicant’s dozer and the dump truck collided. A tyre on the dump truck exploded on collision and shattered the windows of the Applicant’s dozer. The Applicant suffered injuries as a result of the collision, which in the main appear to be cuts caused by flying glass fragments. It appears that it took a medical practitioner and nurse a lengthy period of time to remove the numerous, very small glass particles from the Applicant’s arms and scalp, in particular.
[6] It is common ground between the Applicant and the Respondent that the incident was a serious incident and it warranted proper and thorough investigation. Both sides recognised that incidents such as this have led to fatalities in the past.
[7] The day following the incident, the Applicant was invited to a meeting which was attended by Mr Bruce Kennedy, a supervisor employed by the Respondent, Mr Lloyd Hardy, mining manager employed by the Respondent, and Mr Rob Martin, who attended the meeting as a support person with the Applicant. The Applicant attended the meeting on the same day that he had attended the doctor and had taken sick leave owing to a headache.
[8] In broad summary, the Applicant claims that at that meeting he and Mr Kennedy disputed whether or not there had been a breach of the company’s operating procedures, which had led to the incident. The Applicant denied that he breached any operating procedures. At the conclusion of the meeting the Applicant formed the view that Mr Kennedy gave him an option (perhaps more akin to an ultimatum). That ultimatum was he could resign his employment with the Respondent, without notation of the incident on his employment record, or else the Company would dismiss him at its initiative. In such circumstances, the Applicant informed Mr Kennedy, after some reflection and private discussion with Mr Martin, that he would elect to resign his employment.
[9] The Respondent contends that the Applicant resigned his employment at his own election and that it did not present any option to the Applicant or any ultimatum in a manner that I have described above.
Legislative provisions
[10] Because the Respondent has this perspective, it has raised a jurisdictional objection to the application under s.394 of the Act. That jurisdictional objection arises by way of the operation of s.386 of the Act, which provides 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
[11] The Act’s Explanatory Memorandum reads relevantly as follows:
Clause 386 – Meaning of dismissed
1528. This clause sets out the circumstances in which a person is taken to be dismissed. A person is dismissed if the person‘s employment with his or her employer was terminated on the employer‘s initiative. This is intended to capture case law relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned from their employment but were forced to do so because of conduct, or a course of conduct, engaged in by their employer. Conduct includes both an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of constructive dismissal, and allow for a finding that an employee was dismissed in the following situations:
where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or
where the employee quits their job in response to conduct by the employer which gives them no reasonable choice but to resign.
[12] There is no disagreement between the parties that the Applicant resigned his employment by written instrument at the conclusion of the meeting on 14 June 2012. Rather, the parties are in dispute as to whether or not the Applicant resigned his employment as a result of being forced to do so because of the conduct or course of conduct of the Respondent, for the purposes of s.386(1)(b) of the Act.
[13] The Full Bench of Fair Work Australia (“FWA”) decision in P. O’Meara and Stanley Works Pty Ltd 1 make the following observations about the assessment of the employer’s conduct for purposes of making out a case as to whether or not a dismissal was at the initiative of the employer:
“... In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” (My emphasis)
[14] It appears to me that the approach of the Full Bench reflects effectively the statutory test set out at s.386(1)(b) of the Act, even though it determined under prior legislation. The Full Bench decision reflects the abstracted principle propounded by the Full Court of the Federal Court in Re: Mohazab (2). 2
[15] Given that in this case the resignation is taken as a fact, the question that now requires to be determined by FWA is whether or not the Applicant was instructed to resign in the face of a threatened dismissal or whether the Respondent’s conduct left the Applicant with no effective or real choice but to resign his employment (and by so doing forced the Applicant to resign).
[16] This task, in turn, involves identifying the relevant facts for purposes of determining whether the Applicant was left with no effective or real choice but to resign his employment. That test, in actuality, involves an evaluation of the extent to which the employer’s conduct as objectively characterised limited or otherwise bore down upon the volition of the Applicant (such that the Applicant was forced to resign).
[17] Of course, not all conduct by an employer forces an employee to resign, or places a degree of pressure upon an employee’s volition such that the employee has no effective choice other than to resign. Whether the employer’s conduct and its effect in certain circumstances falls one side of the ledger or the other may not always be readily discerned, but it is important that the line be drawn nonetheless:
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.
[...]
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. 3
Consideration
Applicant’s competency
[18] One issue which arises at first instance is whether or not the Applicant was mentally or otherwise competent at the time of his interview on 14 June 2012, the day after the incident as set out above. This is an important consideration as “special circumstances” (arguably at least) may have an implication for the characterisation of an employer’s conduct in the context of a resignation. There is some discussion of this matter in the decision of the Full Bench in Re: ABB Engineering as cited above. The Applicant’s material and submissions stressed the importance of the Applicant’s medical situation at the time of the interview (though the thrust of the argument as put by the Full Bench in Re: ABB Engineering was more implied than overt).
[19] The Applicant contends that he had suffered head injuries, had many glass fragments imbedded in his skin removed by a doctor and nurse, and was still in a state of shock as a result of the incident. I have inferred that the Applicant contends, in effect, that his judgment was impaired and his resignation could not have been relied upon by the Respondent, or else that the conduct of the employer in circumstances which he was in a vulnerable state imposed upon him in such a way that his resignation was forced.
[20] The Applicant’s witness statement sets his claims out with more precision. He contends that on 14 June 2012 he had “a severe headache” and oozed blood from the small glass fragments that were imbedded in his skin. He states that he requested to attend a medical centre late in the morning of 14 June 2012, whereat he also had a hearing test etc as he was “suffering hearing loss in particular from his left ear.”
[21] The Applicant claims it took a doctor and a nurse some hours to extract the small glass fragments imbedded in his skin at various parts of his body. The photos exhibited to the Applicant’s statement attest to the numerous very small glass fragments that had pock marked his skin and scalp, and there is little surprise - at least from my perspective - it took a meticulous effort on the part of the nurse to identify them and remove each one.
[22] The Applicant then claims that having been so attended to, he was invited by Mr Bruce Kennedy, to attend a meeting to answer “a few more questions” (having filled out an incident response-form on the day prior). The Applicant said that he responded by stating that “[a]s long as it doesn’t take long because I don’t feel that well.”
[23] Upon his arrival at the meeting the Applicant claims that Mr Kennedy approached him and said “Do you realise how severe the situation is?” Mr Kennedy is then said to have inquired as to the Applicant’s well being, to which he replied, “I have a cracking headache.” Mr Kennedy is said to have asked if he wanted to have someone in the meeting with him. The Applicant states that he then said, “What are you doing?” To this Mr Kennedy is said to have replied, “We have a few more questions as part of the investigation.” The Applicant claims to have replied, “Hang on, I thought I was here to answer a few more questions.” The Applicant then requested that Mr Robert Martin, a work colleague, attend the interview with him as a support person.
[24] In the course of the interview, the Applicant states that he made reference to his health. In particular, when he was requested to visit the incident location which was about an hour’s drive away, he declined, owing to not “feeling well.” He states that he was “feeling a bit upset” at that point during the interview.
[25] The Applicant then stated that he went through the detail of the incident reporting process where he “disputed some of the findings” with the Respondent and “the outcomes because of different views of the facts leading to the incident and safety operating procedures.” The Applicant’s evidence was that he was assisted by Mr Martin in this process.
[26] The Respondent’s version of events is much different. In the first instance, Mr Kennedy contends that he was aware of the Applicant’s complaint of headaches and had taken the initiative to have the Applicant collected from camp and transported to the Blackwater medical practice.
[27] Mr Kennedy, who conducted the interview referred to above, claimed that he was informed by his Safety Department that the Applicant had received a fit for work clearance. The medical report in this regard was tendered at hearing. Further, Mr Kennedy claims that he did not proceed with the meeting until he had clarified with the Applicant that he (the Applicant) was fit and able to continue the discussion (which he was said to be following taking some medication for his headache).
[28] Mr Hardy’s evidence was that he had spoken to the Applicant immediately following the incident itself (and the day prior to the meeting) and asked him how he was going, to which the Applicant had responded, “I am alright.”
[29] Mr Hardy’s evidence was also that he had recalled that in the course of the discussion on 14 June 2012, he recalled Mr Kennedy asking the Applicant about his well being and whether the Applicant wished to be interviewed about the incident at that time:
At the start of the meeting, Mr Kennedy asked Hamann words to the effect of “How are you Dave? Do you want to go through the investigation now?” Hamann replied “yes.”
[30] The evidence as I have heard it tends to favour the Respondent.
[31] The Applicant’s conduct is not reflective of a person struggling with his composure or whose cognition was in some manner impaired. The Applicant became quite immersed in the discussion about the intricacies of the incident finding process and the point system that was utilised to evaluate his conduct. Indeed, his evidence was that he challenged the Respondent during the meeting:
We debated operating procedures at length.
[32] Further, the Applicant was sufficiently coherent, after being provided a 5 minute break, to provide upon request a defence of his work performance and attitude whilst in the Respondent’s employment.
[33] To this evidence, I add that the Applicant’s evidence was that he was aware that the investigation meeting “was of a serious nature.” That is, the Applicant was not confused as to the significance of the process in which he was involved.
[34] This also appears not to be a case in which the Applicant later in the day, or the next day, or some day or so later reflects on the decision to resign and notifies the employer of his change of heart or confused state of mind at the time of the resignation. Here, the Respondent was unaware of the Applicant’s change of heart or different perspective on his resignation until such time as the application for an unfair dismissal remedy was lodged with FWA.
[35] I am not persuaded that there is any evidence that the Applicant was in some manner incompetent or otherwise in a vulnerable state at the time the interview was conducted on 14 June 2012, or that his judgment at the time of his resignation was impaired to such an extent that the Respondent ought not to have relied upon it. The Respondent took steps to assure itself of the competency of the Applicant. The evidence of Mr Kennedy and Mr Hardy was to the same effect in this regard and as witnesses neither demonstrated any evidence of having fabricated their respective evidence.
[36] The Applicant also appeared engaged in the investigation discussions. If he had been muted or even animated in an unusual way, issues might then arise. But such behaviour was not manifested.
[37] Further, the Applicant had the assistance of a support person at that time the meeting took place and was provided opportunities (as mentioned in the following) to talk privately with his support person. Even shortly after the decision to resign the Applicant demonstrated no hesitation about the process of signing the resignation, discussing his entitlements and obtaining a copy of his competencies (some of the Applicant's evidence in relation to which is set out further below).
[38] Generally, the Applicant's behaviour before, during and after the meeting of 14 June 2012 does not give rise to a question as to his competency such that it brings into doubt the decision of the Respondent to rely upon the resignation.
Employer’s course of conduct
[39] That matter disposed of, I turn to consider the Respondent’s alleged course of conduct said to have resulted in the Applicant’s decision to resign.
[40] Mr Kennedy’s evidence was that following an examination of the incident from the Respondent’s perspective, he said words to the following effect to the Applicant:
Dave, there is an indication towards termination. You need to tell me what I need to do. Give me reasons why I need to keep you in the business. Take some time to consider your response.
[41] Following an approximately 15 minute private discussion with the support person the Applicant was said to have returned whereupon Mr Kennedy stated as follows:
Now, can you give me reasons why I should keep you in the business. You’ve broken a procedure, you’ve been unaware of your surroundings, you’ve failed to remember that you’d called a truck and failed to remember that they were on their way over. Why should we not terminate your employment?
[42] The Applicant was said to have indicated that he had learned his lesson and it would not happen again. But Mr Kennedy contended that it wasn’t sufficient simply to give an assurance and that he needed more in order to “feel comfortable that [the Applicant was] not going to go out there and hurt yourself or somebody else.”
[43] Mr Kennedy said that he commented that he was concerned for the Applicant’s health and was concerned also that he had been forgetful and that he had not remembered that he had called the truck into his work area.
[44] Mr Kennedy stated that the Applicant claimed in his defence that he (the Applicant) had been with the Company for a while and he had not had any previous issues or incidents. Mr Kennedy said that in reply to this claim he indicated to the Applicant that he had been involved in an incident only six weeks previously involving a vehicle issue. It appears that this incident occurred when a trainer assessor was attempting to pass the Applicant who was operating his dozer. The trainer assessor asked that the Applicant remain stationary whilst he drove past, but the Applicant failed to comply with this instruction.
[45] Mr Kennedy said that the Applicant did not deny that there had been an incident of this kind.
[46] Mr Kennedy stated that the conversation then moved on in the following form:
Mr Kennedy: things are not looking good from an employment perspective based on the outcome of the [...] process.
Applicant: Well, I’ve only got one of two options.
Mr Kennedy: what are those to options?
Applicant: termination or resignation, one or the other.
Mr Kennedy: David, you need to make the decision you need to make and if you feel you and Robert need to go and discuss it, take time out and go and discuss things.
[47] The Applicant and his support person returned some 5 to 10 minutes later and the Applicant informed Mr Kennedy that he wished to resign his position. Mr Kennedy stated that if that is what the Applicant intended to do his resignation would be accepted though he would need to put his resignation in writing.
[48] The Applicant subsequently gave a copy of his written resignation that day.
[49] Mr Hardy's evidence was very much in a similar vein in relation to the Applicant’s declaration as to the options he faced in the circumstances. Mr Hardy said that the Applicant, at a point in the conversation following a discussion of the incident six weeks prior, “sat back” and said to Mr Kennedy:
The Applicant: I guess I have two options then.
Mr Kennedy: what are they?
The Applicant: I can resign or be sacked.
Mr Kennedy: I think you should go outside and think about what you want to do and if you have anything more to say about why you should keep a job?
[50] According to Mr Hardy, the Applicant went outside with Mr Martin for a short time and returned and announced that:
I’m gonna resign.
[51] The Applicant contends that the words spoken by Mr Kennedy were to an entirely different effect. The Applicant claimed the critical conversation was to be reconstructed in the following terms.
[52] Firstly, Mr Kennedy had scored the incident assessment form at “14,” which was a “termination.” When the Applicant inquired initially whether a “14” meant a warning, he was told it meant a “termination.”
[53] According to the Applicant, he was then asked to take some time outside to prepare an oral statement “regarding the incident and the potential outcome.” [My emphasis]
[54] The Applicant then returned to the meeting and provided his defence, as it were, rejecting the allegations, commenting on his work history and attitude and expressing a willingness to be retrained.
[55] At the conclusion of this presentation, Mr Kennedy was said to have reminded the Applicant that his score (as cited above) meant that his “employment could not be continued with.”
[56] At this point, the Applicant stated that Mr Kennedy provided him with a further opportunity to step outside and “re-think [his] statement as the probable outcome would not be good if the forms were forwarded to head office.” [My emphasis]
[57] Mr Martin’s evidence was much the same. He claimed that Mr Kennedy had stated that “the probable outcome would not be good if the forms were forwarded to head office...”
[58] Whilst outside, Mr Hardy was said to have approached the Applicant and Mr Martin and said:
I shouldn’t even be out here talking to you but I will say that if this goes to head office, there will probably only be one outcome and then it will be on your record. [My emphasis]
[59] Mr Martin’s evidence was in identical terms to that of the Applicant.
[60] The Applicant claims that he construed this to mean that his employment record would reflect that he had been dismissed for reason of a safety breach, which would prejudice his opportunities to obtain further employment in the industry.
[61] The Applicant claims that he returned to the meeting and said:
It is obvious that you want me to resign, so I resign, and if I resign do I keep all my benefits, holidays and sick leave and all that[?]
[62] Mr Kennedy was said to have replied, “Absolutely.”
[63] With that the Applicant declared:
Well then I resign.
[64] Mr Kennedy is then said to have stated in reply:
I think it is the best and it won’t be on your record.
[65] Following a discussion about entitlements the Applicant stated that Mr Kennedy lent forward to shake his hand. The Applicant (on his own evidence) declined and said, “Like hell,” and left the meeting.
[66] This case is to be distinguished from cases in which the employer directs or instructs an employee to resign or to be dismissed. The Applicant’s evidence does not go to this extent, and Mr Martin’s evidence expressly ruled out any contention that the Respondent had instructed or directed the Applicant to resign:
At no time did Lloyd Hardy or Bruce Kennedy tell David to resign or tell him that his employment was terminated...”
[67] But what is important here is whether the conduct of the Respondent was sufficient to force the Applicant to resign, by removing from him any real or effective choice but to do so.
[68] As matters stood (on the Applicant's evidence), the Applicant was informed his situation meant that dismissal was a “probability” or else probable. The Applicant’s evidence does not allow me to characterise the Respondent’s utterances any higher than that: he refers to both Mr Kennedy and Mr Hardy mentioning that dismissal was a probability or else probable, and that he should consider his circumstances in the context of that probability.
[69] I note in this regard that the Applicant insisted that a score of “14” meant “termination,” which was a claim intended to bolster his wider argument that his dismissal had been effectively conveyed to him by the Respondent. In actuality, the score the Applicant received was “17,” not “14,” and that score was not determinative in its own right as an instruction to dismissal, but only a guide. This explains why Mr Kennedy provided the Applicant with an opportunity to demonstrate why he should retain his job despite the score he received in the incident evaluation.
[70] The probability of dismissal no doubt weighed greatly on the Applicant's mind as opposed to the option of resigning and preserving his reputation, amongst other things. And it may be the Applicant perceived in the conduct of Mr Kennedy and Mr Hardy a latent goal to encourage him to consider resignation rather than the probability of dismissal. And so it may have been, though Mr Martin was not unequivocal about the Respondent’s intention in the conversation with the Applicant immediately prior to offering his resignation:
You don't say in your statement what that outcome was?---It was the - as I stated this morning, it was an assumption made by me, as we were asked to go out and prepare earlier on, when David returned to the office, and put forward his remorse on what had happened, and we were asked to go back outside and rethink and come back inside. I did say to David, "I think that they want you to resign. That would be the most likely outcome of what I think. I think they want you to resign." That's why I made that assumption that they did want David to resign. 4
[71] But even so characterised, the Applicant nonetheless exercised a choice that reflected his own interests. That choice was to balance the risk associated with the probability of dismissal, and the implication of this for his employability in the industry, with the advantages of self-initiated resignation. The Applicant’s own evidence demonstrates that he elected to resign his employment voluntarily:
All right. Thank you. I put it to you that you were told that things aren't looking good from an employment perspective, and you reply, "Well, I've only got one or two options." Bruce asked you, "What are those two options?" You say, "Termination or resignation. One or the other." Bruce replied, "Dave, you need to make the decision you need to make, and if you feel you and Robert need to go and discuss it, take your time and go and discuss it with him"?---That's right.
That's right?---Yes. 5
[72] Here, under cross-examination, the Applicant accepts Mr Kennedy’s evidence as to the manner in which the Applicant proposed the very choice he was ultimately to exercise. Dismissal may well be a probability, or probable (as Mr Kennedy and Mr Hardy may have made clear), but the Applicant, on his own evidence, had framed his own course of action (before he left to have his final discussion with Mr Martin and before any comment was purportedly made by Mr Hardy). Thereafter the Applicant elected his own pathway. Mr Hardy’s purported comments add little to the circumstances facing the Applicant, and they did not seem to have had a dramatic effect on Mr Martin’s assessment of the situation either (given the tentative nature of his observations as cited above).
[73] It may well be the Applicant’s claim (as it was Mr Martin’s) that that I should look through the notion of the dismissal as being only probable and instead construe the context - as seemingly revealed in the course of conduct of the Respondent - as meaning that the Applicant had been effectively instructed to resign. But to do so is to move beyond the confines of the Applicant’s own evidence (and that of Mr Martin), and to bring into consideration the Applicant’s subjective appraisal of his circumstances.
[74] On the evidence at hand, this is not a case in which the employer’s course of conduct is unambiguous or self evidently directed to exact by force a particular end - the dismissal by resignation. The course of conduct would need to manifest more certainty in intention (than express probability) and bear down more-so on the Respondent's volition in order to meet the statutory test. An instruction to resign, or the presentation of a stark choice to resign or be dismissed would deny the Applicant any real or effective choice (but to resign) and would force the Applicant’s hand. Equally, a course of odious conduct or threatening behaviour or harassment might create an environment in which the Applicant might be forced to resign his employment.
[75] As it was, on the Applicant’s own evidence as it came to be, he was ultimately left not with no effective or real choice, but with an actual choice (which on his own evidence he articulated). The line between such choices may at times be a thin one, but for the reasons the Full Bench in Re: ABB Engineering cited above observed, it must nonetheless be drawn.
Conclusion
[76] Because of my findings above, I find that the Applicant resigned his employment at his own initiative and not because he was forced to do so because of the course of conduct of the Respondent. And as a consequence of this finding, I must dismiss the application under s.394 of the Act as that application is not within the tribunal’s jurisdiction.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr G. Ebert of Finemore Walters and Story Solicitors for the Applicant.
Ms R. Taumalolo of Herbert Smith Freehills for the Respondent.
Hearing details:
2012.
2 November.
Bundaberg.
1 Giudice J, Watson VP, Cribb C, 11 August 2006 [PR973462].
2 Mohazab v Dick Smith Electronics Pty Ltd (No.2) 62 R 200, Lee, Moore, Marshall JJ, 28 November 1995.
3 A.S. Doumit v ABB Engineering Construction Pty Limited, Munro J, Duncan DP, Merriman C, 9 December 1996 [N6999], hererafter referred to as Re: ABB Engineering.
4 Transcript of proceedings, 2 November 2012 at PN459.
5 Transcript of proceedings, 2 November 2012 at PNS426 - 427.
Printed by authority of the Commonwealth Government Printer
<Price code C, PR531086>
2
0