Mr John Kelertas v The Trustee for S & CA Investment Trust & the Trustee for F & C Raso Family Trust & the Trustee for S & C Raso Family Trust t/a Mega Pet Warehouse
[2012] FWA 6282
•25 JULY 2012
[2012] FWA 6282 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Kelertas
v
The Trustee for S & CA Investment Trust & The Trustee for F & C Raso Family Trust & The Trustee for S & C Raso Family Trust t/a Mega Pet Warehouse
(U2012/4446)
SENIOR DEPUTY PRESIDENT ACTON | MELBOURNE, 25 JULY 2012 |
Application for unfair dismissal remedy - jurisdiction - resignation - application dismissed.
Introduction
[1] This matter concerns an unfair dismissal remedy application made by Mr John Kelertas on 30 January 2012. The application was made against The Trustee for S & CA Investment Trust & The Trustee for F & C Raso Family Trust & The Trustee for S & C Raso Family Trust t/as Mega Pet Warehouse (MPW).
[2] Mr Kelertas was employed as a Storeman/Sales Assistant by MPW from 27 March 2006 until the termination of his employment on 20 January 2012.
[3] The Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been dismissed may apply to Fair Work Australia (FWA) for an order granting a remedy for unfair dismissal. 1
[4] Section 386(1) of the FW Act provides that 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.”
[5] MPW maintains Mr Kelertas was not dismissed and, as a result, he was unable to make his application for an unfair dismissal remedy and his application should be dismissed.
[6] This decision deals with MPW’s objection to Mr Kelertas’s unfair dismissal remedy application.
Relevant evidence and facts
[7] Prior to the commencement of the hearing in respect of MPW’s objection both parties filed in FWA and served on the other party an outline of their submissions and witness statements, although some of these were amended during the hearing.
[8] Mr Kelertas gave evidence about a number of personal issues he was struggling with in the months preceding the termination of his employment at MPW. He also gave evidence that in the week preceding the termination he was ill and had a doctor’s certificate for the days of 29-30 December 2011. He said he went to work on Friday, 30 December 2011 to drop off his doctor’s certificate and Mr Frank Raso, a co-owner of MPW, spoke to him angrily, criticising the work of Mr Kelertas. Mr Frank Raso’s evidence, however, was that there was a general discussion between him and Mr Kelertas on 30 December 2011 but it was not confrontational in any way and he did not criticise Mr Kelertas. I accept Mr Frank Raso’s evidence over that of Mr Kelertas about what happened between Mr Kelertas and Mr Raso on 30 December 2011. I prefer the evidence of Mr Raso in this regard because Mr Kelertas also gave evidence which contradicted his evidence about the exchange between Mr Frank Raso and himself on 30 January 2011. The contradictory evidence of Mr Kelertas was that 2 January 2012 “was the first time anyone from [MPW] had raised performance issues with [him].” 2 (Underlining added)
[9] Mr Kelertas went on to give evidence that he spent the weekend after 30 December 2011 feeling very upset and anxious about the exchange with Mr Frank Raso on 30 December 2011, unwell and struggling with his personal issues.
[10] Mr Kelertas said that on Monday, 2 January 2012 he went to work and became angry and frustrated with the state in which Mr Frank Raso had left the warehouse in which Mr Kelertas worked. His evidence was that in the heat of the moment, without thinking rationally or clearly, he said to Mr Daniel Isoldi, a manager for MPW, “I resign” and gave him a signed handwritten note. 3 Mr Kelertas maintained he did not know why he wrote the note as he had no intention of resigning. The note was as follows:
“DANIEL
CC CAROLINE
FRANK
SAM
I JOHN KELERTAS HEREBY TENDER MY RESIGNATION EFFECTIVE ON 20/1/12.
YOURS TRULY
[Signature of John Kelertas]” 4 [Spelling corrected]
[11] It is apparent “Caroline” and “Frank” are Ms Caroline Raso and Mr Frank Raso, both co-owners of MPW.
[12] Mr Isoldi asked Mr Kelertas why he was resigning and Mr Kelertas replied “I have had enough. I can’t do it anymore.” 5 Mr Isoldi said to Mr Kelertas words to the effect of “Maybe you should speak to Caroline or Frank first”6 and Mr Kelertas replied to Mr Isoldi that “It has nothing to do with you. I am passing it to you, your job is to give it to Frank and Caroline.”7 Mr Isoldi telephoned Ms Raso shortly thereafter and advised her of what had happened. Ms Raso told Mr Isoldi to put the resignation note of Mr Kelertas on her desk and she would deal with it later. Ms Raso then telephoned Mr Frank Raso to inform him that Mr Kelertas had tendered his resignation.
[13] Mr Kelertas gave evidence-in-chief that less than two hours after giving Mr Isoldi his resignation note he had calmed down and he told Mr Isoldi that he wanted to retract his resignation note. I do not accept that Mr Kelertas told Mr Isoldi on 2 January 2012 that he wanted to retract his resignation note. Under cross-examination the evidence of Mr Kelertas on the point was equivocal. Further, Mr Isoldi gave evidence-in-chief that the first time he became aware that Mr Kelertas was retracting his resignation was after a telephone call he had with the wife of Mr Kelertas. That telephone call was on 12 January 2012. Cross-examination did not undermine Mr Isoldi’s evidence in this regard.
[14] Later on 2 January 2012, and before Mr Frank Raso went to the MPW store where Mr Kelertas worked, Mr Kelertas noticed his resignation note was on Ms Raso’s desk. Mr Kelertas scrunched up the note and threw it in a bin. However, there was no evidence that at any time that day he told anyone at MPW that he had scrunched up the note and thrown it in the bin.
[15] Late in the afternoon of 2 January 2012 Mr Frank Raso went to the MPW store where Mr Kelertas worked. The evidence-in-chief of Mr Kelertas about what took place was as follows:
“Mr Raso came into the warehouse and told me that I had done the right thing to resign as the work was getting too much for me like Brian from Ringwood and Andrew from Hoppers Crossing (both former mature-aged employees of the Respondent), and that my performance had dropped. I was shocked as this was the first time that anyone from the Respondent had raised performance issues with me. I was also disappointed that the owners had become aware of the note.” 8
[16] Ms Raso gave evidence that she went to the MPW store where Mr Kelertas worked at about 7.00 pm on 2 January 2012. She looked for the resignation note of Mr Kelertas on her desk but could not find it. Her husband then found it scrunched up in the rubbish bin near her desk. There were other papers in the bin and she thought Mr Isoldi had inadvertently scrunched up the note and thrown it in the bin.
[17] There was no evidence that anything of relevance occurred on 3 January 2012.
[18] In the period after 3 January 2012, MPW offered to rehire Mr Kelertas on a part-time basis in another role once the termination of his employment had taken effect and some time had elapsed. Mr Kelertas gave evidence that in the period after 3 January 2012 he “formally” retracted his resignation note. Further, he put into evidence a letter to Ms Raso from him dated 13 January 2012 which stated that “Once again, I would like to retract the resignation I tendered on 02/01/2012.” 9 The rehire offer of MPW was not accepted by Mr Kelertas and MPW did not resile from its acceptance of the resignation of Mr Kelertas. Mr Kelertas obtained a medical certificate for the period 17 to 20 January 2012 and did not work at MPW during that period.
MPW collective agreement
[19] The Mega Pet Warehouse Pty Ltd Collective Agreement 2007 10(the MPW Agreement), an agreement approved by the Workplace Authority, applied to the employment of Mr Kelertas. Clause 27.1 of the MPW Agreement concerns notice on termination by MPW and provides as follows:
“27.1 In order to terminate the employment of a full time or part time employee, Mega Pet Warehouse must provide you with the following notice:
Period of continuous employment | Period of notice | |
Not more than 1 year | 1 week | |
More than 1 year but not more than 3 years | 2 weeks’ | |
More than 3 years but not more than 5 years | 3 weeks’ | |
More than 5 years | 4 weeks’ | ” |
[20] Clause 28 of the MPW Agreement concerns resignation and provides as follows:
“28. RESIGNATION
28.1 The notice of termination required to be given by you, should you resign from your employment, shall be the same as that required of Mega Pet Warehouse in clause 27.1.
28.2 If you fail to give notice to Mega Pet Warehouse in accordance with clause 27, we shall have the right to withhold any wages or payment for accrued untaken leave due to you with a maximum amount being equal to the ordinary time rate of pay for the period of notice.
28.3 The resignation must be provided in writing to Mega Pet Warehouse and state the date that the resignation will be effective.”
Consideration of the MPW objection
[21] On the facts in this matter, I am satisfied the employment of Mr Kelertas by MPW was not terminated on the initiative of MPW, rather Mr Kelertas resigned from his employment with MPW and was not forced to do so because of conduct or a course of conduct engaged in by MPW. As a result, I consider Mr Kelertas was not dismissed by MPW.
[22] The facts show that on 2 January 2012 Mr Kelertas said “I resign” and tendered his resignation in a handwritten note to MPW. In my view, MPW’s acceptance of that resignation was sufficiently communicated to Mr Kelertas when Mr Frank Raso, a co-owner of MPW, told Mr Kelertas late on the afternoon of 2 January 2012 that he [Kelertas] had done the right thing to resign as the work was getting too much for him [Kelertas] like Brian from Ringwood and Andrew from Hoppers Crossing (both former mature-aged employees of MPW) and that his [Kelertas] performance had dropped. No subsequent discussions between Mr Kelertas and MPW or other actions of MPW establish that MPW resiled from its acceptance of Mr Kelertas’s resignation.
[23] I do not accept that Mr Kelertas’s state of mind was such that he did not intend to resign or offer his resignation or that MPW should have allowed him or given him an opportunity to withdraw his resignation or offer of resignation. In this regard, it is relevant that Mr Isoldi attempted to dissuade Mr Kerletas from resigning but was rebuffed. On Mr Kelertas’s own evidence he had “calmed” down within a few hours of telling Mr Isoldi of his resignation and giving him the resignation note. Mr Kelertas then scrunched up his resignation note and threw it in the bin, however he did not advise MPW that he had done so. He met with Mr Frank Raso, a co-owner of MPW, late in the afternoon of 2 January 2012 but still did not tell Mr Raso that he did not have any intention of resigning or that he had retracted, was retracting or was going to retract the resignation note. Further, there is no evidence that Mr Kelertas advised anyone at MPW on 3 January 2012 that he did not have any intention of resigning or that he had retracted, was retracting or was going to retract the resignation note. I do not accept that the fact that Mr Kelertas’s resignation note was scrunched up and binned required MPW to inquire of Mr Kelertas as to whether he had any intention of resigning or whether he had retracted, was retracting or was going to retract the resignation note. Up to the time when the resignation note was found scrunched up and binned and for a reasonable period thereafter, Mr Kelertas did not advise MPW that he did not have any intention of resigning or that he had retracted, was retracting or was going to retract the resignation note, despite him meeting with Mr Frank Raso, a co-owner of MPW, during that period. In those circumstances, I accept Ms Raso’s evidence that she thought Mr Isoldi had inadvertently scrunched up Mr Kelertas’s resignation note and thrown it in the bin.
Conclusion
[24] Having regard to my conclusion that Mr Kelertas was not dismissed, the unfair dismissal remedy application of Mr Kelertas in matter U2012/4446 is dismissed. An order to that effect is being issued at the same time as this decision as PR526923.
SENIOR DEPUTY PRESIDENT
Appearances:
J McDougall of counsel for the applicant.
N Howells-Schramm with T Page of the Victorian Employers’ Chamber of Commerce and Industry for the respondent.
Hearing details:
2012.
Melbourne:
May 8, 9.
Final written submissions:
Respondent, 14 May 2012.
Applicant, 18 May 2012.
Endnotes:
1 Fair Work Act 2009 (Cth) s.394(1).
2 Exhibit A1 at paragraph 27.
3 Ibid at paragraph 20
4 Exhibit R1 at CR5.
5 Exhibit R2 at paragraph 7.
6 Ibid.
7 Ibid.
8 Exhibit A1 at paragraph 27.
9 Ibid at JK2.
10 AC305307.
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