Mr Gary Clarke v Max Solutions Pty Ltd
[2015] FWC 7773
•17 NOVEMBER 2015
| [2015] FWC 7773 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Gary Clarke
v
MAX Solutions Pty Ltd
(U2015/10723)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 17 NOVEMBER 2015 |
Summary: whether resignation – whether resignation rescinded with consent of employer – circumstances where employer seeks to pay in lieu an employee’s nominated notice period on resignation – s.117 limited to employer notice periods - agreement clause provides for “employee notice” to be paid in lieu – notwithstanding remedy limited to anticipated period of further employment, which is the employee’s nominated notice period.
[1] This decision concerns an application by Mr Gary Clarke under section 394 of the Fair Work Act 2009 (“the Act”). Mr Clarke is seeking an unfair dismissal remedy in relation to the circumstances surrounding his cessation of work with Max Solutions Pty Ltd (“the employer”) on 23 July 2015.
[2] Mr Clarke performed duties as an employment consultant with the employer - an employment and training provider - between 27 June 2011 and 23 July 2015. Mr Clarke worked out of the employer’s Warwick office (at least at the time of the cessation).
[3] On 2 July 2015, Mr Clarke approached his supervisor, Ms Rachelle Thomas (who is the regional manager for the Darling Downs region) at approximately 8:30 AM.
[4] Mr Clarke was said by Ms Thomas to have stated to her that:
“I’m going to resign, I’m sorry to do so but the travel is too much.”
[5] Ms Thomas said Mr Clarke went on to state that:
“I have enjoyed working in Warwick. It is a great team.”
[6] Ms Thomas claimed Mr Clarke had informed her that he was resigning because of his extended commute to the Warwick office. Mr Thomas indicated that she was sorry to hear he wished to resign and asked him to submit his resignation in writing by email. That email, delivered later that day, read relevantly as follows:
“Regional manager
Rachelle Thomas
Please accept this letter of resignation.
I wish to thank the people of Max Employment for all the support shown over the past four years.
I am asking if you would consider my last day to be the 23rd of July with Max Employment.
[…]”
[7] There is little dispute between the parties as to the facts to this point.
[8] Later that day (be it either the morning or afternoon) Mr Clarke indicated to Ms Thomas that he would have preferred to have been employed by his employer out of the Toowoomba office. Ms Thomas contended that she indicated that she would see if there were any vacancies in Toowoomba and if there were, his resignation - which had been submitted to the HR department - could be changed to a transfer.
[9] Mr Clarke contended Ms Thomas had said, “I will put your resignation on hold and will not submit it, let’s see if we can get you a transfer to Toowoomba.”
[10] Mr Clarke seemed to take the view that his resignation had been withdrawn from the time of that conversation.
[11] Ms Thomas gave evidence that her subsequent enquiries revealed that there was no vacant position in the Toowoomba office.
[12] Ms Thomas stated that on 3 July 2015 (the following day), she verbally informed Mr Clarke that there were no vacancies in Toowoomba and that, “we will continue with his resignation.” Ms Thomas recalled turning in her seat on the day in question and introducing the topic in the context of another discussion. Mr Clarke denies such a conversation took place. One of Mr Clarke’s colleagues, Ms Voss, gave evidence that she worked closely with Mr Clarke and he had made no mention of this conversation with her on the day. Had such a conversation occurred, Ms Voss contended it would have reasonably been the subject of discussion between them that day.
[13] On 6 July 2015, however, Ms Thomas wrote an email to Mr Clarke and advised him as follows:
“Hi Gary,
On reviewing the current profile there is no vacant PC spots. We are going to request advertising for a team leader over profile but that will take longer than your notice period to resolve.
I’m happy for you to still submit your application (once approved and advertised) but it is likely that interviews and appointment will only occur after the 23rd.
Sorry I couldn’t facilitate something immediately for you.
Cheers, Chelle”
[14] The reference to the “23rd” in Ms Thomas’ email is a reference to the last day of Mr Clarke’s notice period, as he had advised his employer
[15] Mr Clarke makes no mention of Ms Thomas’ email correspondence in his written evidence.
[16] Under my initial questioning Mr Clarke claimed he had not read or seen Ms Thomas’ email of 6 July 2015, and was unaware of its contents.
[17] Under cross examination, however, Mr Clarke conceded he had probably seen the email of 6 July 2015, but probably didn’t make much sense of it.
[18] Mr Clarke attended work the following day (7 July 2015), but advised Ms Thomas by email that he would have to leave the office early to see a doctor about an injury he had incurred. In that same email of 7 July 2015, Mr Clarke also indicated to Ms Thomas that he would not attend work the following day (8 July 2015) as he had a job interview for an apprenticeship company.
[19] In the course of the hearing Mr Clarke indicated he had been dishonest with his employer in respect of the reason given for his absence on 8 July 2015 in that he had not undertaken a job interview.
[20] On 12 July 2015, Mr Clarke emailed Ms Thomas and indicated that he was ill and sought to withdraw his resignation. Mr Clarke claimed that he had what would appear to be a minor stroke.
[21] On 14 July 2015, Ms Thomas wrote to Mr Clarke and indicated that Mr Clarke’s resignation had been accepted and that the employer did not require him to work out his notice period and would pay him nine days’ notice in lieu.
[22] On 16 July 2015, Mr Clarke emailed Ms Thomas and indicated that he was recovering from his illness had “also picked up work at a recruitment company in Toowoomba, 25 minutes from my home.” Mr Clarke also indicated that “the employer is great said that I can start when I am fully recovered, which is only two weeks away.”
[23] In the course of his oral evidence, Mr Clarke indicated, once again, that he had not been truthful with his employer in respect of this statement and as before, there had been no such employer.
[24] Mr Clarke went on to indicate in the same email that:
“My good memories at Max were at Esk and I’m grateful for the experience. I actually had four really good years. It’s a shame Max is losing so many experienced staff, I think that was concerning me towards the end. It’s a simple fix really and that’s not your fault either.”
[25] I add for completeness that Ms Thomas gave evidence that following Mr Clarke’s resignation, she had reviewed the staff profile at the Warwick site, and given the caseload determined that the office could operate with two employment consultants instead of three and that it would not be necessary to replace Mr Clarke’s position.
Consideration
[26] The evidence adduced in this matter does not indicate that Mr Clarke, having resigned his employment on the morning of 2 July 2015, had had that resignation suspended or otherwise put aside owing to Ms Thomas’ conduct later that day (in undertaking to explore vacancies that might be available for Mr Clarke at the Toowoomba branch).
[27] So far as Mr Clarke directed email correspondence to Ms Thomas on 12 July 2015 requesting an opportunity to withdraw his resignation, Mr Clarke himself must be taken at that time to have been satisfied that his resignation remained “in effect” and had not been withdrawn or rescinded by some previous action. Mr Clarke cannot reasonably have drawn the conclusion from his interaction with Ms Thomas on 2 July 2015 that his resignation was no longer in effect as he would have had no need to seek to withdraw his resignation 10 days later.
[28] Further, as Mr Clarke conceded under cross examination, he had “probably” read Ms Thomas’ email of 6 July 2015, which was predicated quite clearly on Mr Clarke’s resignation being actioned for reason that no position was available in the Toowoomba office prior to the expiry of Mr Clarke’s nominated notice period (23 July 2015).
[29] Mr Clarke claimed in the correspondence of 12 July 2015 that he had been “disoriented lately [owing to] lack of oxygen to the brain.” Mr Clarke appears to have implied that his decision taken on 2 July 2015 to resign his employment was based on a medical condition, which affected his judgment at that time.
[30] There is no medical evidence to this effect, even if such an argument had been expressly pressed.
[31] Mr Clarke’s conduct as evidenced though his written communications appear cogent and reflect an orderly mind, in any event.
[32] Mr Clarke and Ms Voss assert that Mr Clarke’s conduct was unusual at the time of his resignation. But it was difficult on the evidentiary case to suggest something more.
[33] On the evidence I have heard, I am satisfied that Ms Thomas agreed to investigate another option for Clarke that may have obviated the need for Mr Clarke to resign his employment, but that investigation was unsuccessful.
[34] There is no claim that Ms Thomas was deceptive in her endeavours in this regard. Mr Clarke and Ms Voss appeared to have the view that Mr Clarke could have been “swapped” as it were with another employee who had transferred from Toowoomba to Warwick. But Ms Thomas’ direct evidence showed this claim was not made out on the basis of any actual operational knowledge of the business. Ms Thomas’ evidence in respect of the composition and staffing requirements of the Warwick and Toowoomba branches of the employer’s business is to be preferred to that of Mr Clarke and Ms Voss.
[35] As I have indicated above, I do not accept that Mr Clarke’s resignation was rescinded by common agreement between Ms Thomas and Mr Clarke on the occasion of the second meeting of 2 July 2015. The evidence points only to the conclusion that Ms Thomas undertook to take steps to explore another outcome for Mr Clarke. That conduct on Ms Thomas’ part did not bring about the withdrawal of Mr Clarke’s resignation as effected by his unilateral action. I could not read Ms Thomas’ email of 6 July 2015 and Mr Clarke’s email of 12 July 2015 as being consistent with any other circumstances.
[36] When Ms Thomas had concluded her investigation and determined the staffing needs at the branches of the employer’s business did not establish the case for a transfer, Mr Clarke’s resignation was unaffected and his notice period remained operative.
[37] Mr Clarke did indeed seek to withdraw his resignation by email on 12 July 2015:
“If possible I would like to withdraw my resignation and hoping Max Employment will support me in his difficult time […]”
[38] But the employer was under no obligation to accept the unilateral withdrawal of the prior notice of resignation. Ms Thomas had concluded that the workforce requirements in the Warwick Branch did not demand any additional recruitment, in any event. As indicated above, Mr Clarke thereafter wrote to the employer indicating his imminent return to health and announced his new employment with a recruitment company.
[39] Because I have found that Mr Clarke resigned his employment, and did not do so for reason that he was forced to do so by the conduct or course of conduct of his employer for the purposes of s.386(1)(b) of the Act (and no such argument was advanced), Mr Clarke cannot be taken to have been dismissed for purposes of s.385 of the Act.
[40] Mr Clarke’s application for an unfair dismissal remedy must be dismissed.
[41] I add that one issue did arise in the course of this matter that requires comment. Mr Clarke’s period of notice was specified to conclude on 23 July 2015. However, the employer decided unilaterally to bring the date on which Mr Clarke ceased his role as an employee forward and to pay his remaining period of service to him in lieu.
[42] Bar where a term of an industrial instrument or statute applies, the unilateral intervention by an employer in circumventing an employee’s stipulated notice period when the employee resigns his or her employment, may be construed as a dismissal at the employer’s initiative.
[43] Here, however, the MAX Solutions Employment and Training Enterprise Agreement 2014 (“the Agreement”), which covered Mr Clarke’s employment, makes provision for payment in lieu of an employee’s notice period. Clause 8.2.1 sets out the employer’s notice obligations when it terminates the employee’s employment. The remainder of clause 8.2 provides as follows:
8.2.2 The Company is not required to provide a temporary employee with notice of termination of employment where the employment terminates in accordance with the employee's temporary employment contract.
8.2.3 An employee is required to give the Company the same notice as specified in clause 8.2.1 but without an additional week where the employee is over 45 years of age. Where the employee does not provide the required period of notice, the Company may withhold money due to the employee up to an amount equal to the ordinary time rate of pay for the period of notice not given.
8.2.4 The Company may pay an employee in lieu of part or all of the notice period. Where this is the case, the pay in lieu of notice will be based on the remuneration the employee would have been paid if he or she had worked during the period of notice, excluding any overtime that would or might have been worked.
8.2.5 Where the Company provides an employee with notice of termination, he or she is entitled to up to one day off with pay in order to look for another job. The employee may be required to provide evidence of his or her job search activities on any paid time off work under this clause. Where the employee does not provide such evidence, the Company may withhold payment for that time. [My emphasis]
[44] Sub clause 8.2.4, which enables the employer to pay out a notice period in lieu of service, must be read reasonably as applying to both employer and employee-initiated notice periods. This is so because the Agreement at clause 8 otherwise differentiates between such periods of notice, but it does not do so in this clause. Further, sub clause 8.2.3 of the Agreement, which deals with the employee’s notice period obligations, immediately precedes sub clause 8.2.4 of the Agreement.
[45] As mentioned above, where an employer takes steps to pay in lieu a period of notice that an employee seeks to serve out in relation to a resignation, the employer may be taken to dismiss the employee at its own initiative. This will not be the case where provision is made for an employee notice period to be paid in lieu, such as through a term of an enterprise agreement.
[46] Here, the Agreement that covered Mr Clarke’s work makes provision of this kind.
[47] I add only that had Mr Clarke not been covered by an enterprise agreement that made such a provision, he may have been found to have been harshly, unjustly or unreasonably terminated. But even if Mr Clarke was so terminated, he would have had no remedy by way of compensation as the totality of his own notice period had been discharged by the employer in any event. That is to say, Mr Clarke’s effective losses would have been nil as he would have been paid out for the period of anticipated employment (which could have been no longer than the expiry of his stipulated notice period).
Conclusion
[48] Mr Clarke’s employment did not come to an end at the initiative of the employer, and as such, Mr Clarke is not a person who was dismissed for the purposes of s.385 of the Act. Mr Clarke’s application therefore does not fall within the jurisdiction of the Commission and must be dismissed.
SENIOR DEPUTY PRESIDENT
Appearances:
G. Clarke, applicant.
S. Masters of Page Seager Lawyers, for the respondent.
Hearing details:
2015.
Brisbane (by telephone):
November 9.
Final written submissions:
Applicant – 13 November 2015
Respondent – 9 November 2015
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