Mr Haydn Jones v National Foods Australia Pty Ltd T/A National Foods Milk Ltd
[2010] FWA 2120
•25 MARCH 2010
[2010] FWA 2120 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Haydn Jones
v
National Foods Australia Pty Ltd T/A National Foods Milk Ltd
(U2009/844)
SENIOR DEPUTY PRESIDENT CARTWRIGHT | SYDNEY, 25 MARCH 2010 |
Termination of Employment – has a person been dismissed?
[1] This decision deals with whether Mr Haydn Jones was dismissed within the meaning of s.386 of the Fair Work Act 2009 (the Act) from his employment with National Foods Milk Limited (National Foods).
[2] Section 386 relevantly provides:
“(1) [Definition] 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) [Exclusion] However, a person has not been dismissed if:
…
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.”
[3] It can be seen that the section sets out a positive test to be satisfied, subject to exclusions, of which only subparagraph 386(2)(c) is relevant here. The exclusion to the definition in s.386(1) applies where both requirements in s.386(2)(c) are met. It does not follow that a person who does not fit the description in s.386(2)(c) is a person dismissed as defined by s.386(1). The test to be applied on the evidence is whether a person has been dismissed as defined by s.386(1).
[4] Mr Jones was employed by National Foods as a Warehouse Operator Level 3. On 17 and 19 August 2009, production operations were disrupted because packaging labels which Mr Jones was responsible for ordering were not available. Mr Mitchell, Beverage Operations Manager NSW, arranged a meeting with Mr Jones for 20 August 2009 to talk about “what’s happened with the label stock, and also your performance in regard to that.” 1 At the meeting on 20 August 2009, Mr Mitchell informed Mr Jones that he was to receive a First Written Warning under the Performance Counselling and Disciplinary Action Policy and be transferred to work in the Distribution Centre Cool room2. The role to which Mr Jones was to be transferred in the Distribution Centre was also a Warehouse Operator Level 3. There was no talk of money3, Mr Jones never asked any question about the new position4 and he did not raise then, or subsequently, health issues5. He was angry at being asked to move to the Distribution Centre, refused to do so and walked out of the meeting, despite Ms Hordern’s (Human Resources Manager) request not to do so6. No one from National Foods asked for Mr Jones’ resignation or said “If you do not resign, you will be dismissed”7. Mr Jones did not think about any medical issues8.
[5] Later that day Mr Jones telephoned Mr Singh, National Supply Planning Manager, and told him “I am not happy getting a written warning and being moved. I do not want to work in the DC. I am resigning” 9. Mr Jones’ evidence was that he raised the issue of resigning10. He confirmed it the next morning, 21 August 2009, in a text message exchange with Mr Singh between 9:12 am and 9:17 am, in which he also asked Mr Singh for a reference11.
[6] At approximately 9:30 am, Ms Hordern telephoned Mr Jones. During the conversation, Ms Hordern accepted Mr Jones’ resignation and asked him to confirm it in writing, including the effective date, so that his pay could be finalised 12. He agreed to do so13. It is relevant at this point to observe that the Workplace Agreement applying to Mr Jones’ employment provides that National Foods may deduct wages for the required one week’s notice from the final pay. Ms Hordern followed up at approximately 11 am, asking Mr Jones if he had sent the confirming email yet. Mr Jones undertook to send it as soon as he could.
[7] At no stage during the interchanges on 21 August 2009 did Mr Jones withdraw his resignation. Rather, the content of those three interchanges confirmed it. From 9:30 am on Friday 21 August 2009, Mr Jones was aware that National Foods had accepted his resignation.
[8] It was not until a quarter to midnight on Sunday 23 August 2009 that Mr Jones gave any indication of a change of heart. He sent a text message to Mr Singh to the effect that he was sick and would not “be in” on Monday morning 14. Ms Hordern followed up with a telephone call at approximately 10 am on Monday 24 August 2009. She confirmed that National Foods had already accepted Mr Jones’ resignation. He responded, “I have been talking to people and don’t want to resign. I have decided that I am sick.”15 National Foods did not agree to Mr Jones withdrawing his resignation.
[9] Ms Hordern had another phone conversation with Mr Jones at 12:39 pm that day, during which Mr Jones became “quite agitated”. 16 The net result was that Mr Jones was paid for one week’s notice as sick leave.
[10] While there is more that can be said by way of context, the evidence summarised above is largely undisputed.
[11] Having considered everything before me, including the written and oral submissions, I am not satisfied that Mr Jones was forced to resign because of conduct, or a course of conduct, engaged in by National Foods. There was nothing untoward, in my view, in National Foods exercising its ability under the Workplace Agreement to move Mr Jones to another Level 3 role in response to performance concerns. Nor was Mr Jones’ resignation equivocal. It was his initiative, unprompted and confirmed. National Foods accepted it on the morning of 21 August 2009 and he did not attempt to withdraw it until 24 August 2009. Mr Jones’ voluntary resignation, accepted by his employer, brought the employment to an end. He was not dismissed as defined by s.386(1)(b).
[12] Nor does s.386(2)(c) assist Mr Jones in this case. It was not disputed that under the Workplace Agreement the employer was able to transfer Mr Jones to another Level 3 role or that the payment per shift of the relief supervisor allowance was subject to acceptable performance in the role. There was no repudiation by National Foods. Neither does the fact that Mr Jones cannot be described as a person who has not been dismissed under s.386(2) mean that he satisfies the definition of a person who has been dismissed under s.386(1).
[13] Mr Jones resigned of his own choice and the resignation was accepted by National Foods. His employment was not terminated on the employer’s initiative and he was not forced to resign because of conduct, or a course of conduct, engaged in by his employer.
[14] For Mr Jones to establish a case under s.385 of the Act, he must be a person who has been dismissed as set out in the positive definition in s.386(1). In this case, he was not and the application must be dismissed. I so order.
SENIOR DEPUTY PRESIDENT
Appearances:
S Mueller of National Union of Workers, for the Applicant
S Woodbury, solicitor of Blake Dawson, for the Respondent
Hearing details:
2010
Sydney:
February 12
1 Transcript PN304. I accept Mr Mitchell’s unequivocal evidence on this, on which he was not challenged. It is to be preferred to Mr Jones’ qualified response on this at PN208.
2 Exhibit R3, attachment EH-7
3 Transcript PN225
4 Transcript PN228
5 Transcript PN243-248
6 Transcript PN225-253
7 Transcript PN234-235
8 Transcript PN253
9 Exhibit A1, Paragraph 44
10 Transcript PN233
11 Exhibit R4
12 Exhibit A, paragraph 47 and Exhibit R3, paragraph 26
13 Exhibit R3, paragraph 26
14 Exhibit R-4
15 Exhibit R3, paragraph 30
16 Exhibit R3, paragraph 31
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