Mr John Secker v Leighton Contractors Pty Limited & MacMahon Contractors Pty Ltd T/A MacMahon Leighton Joint Venture
[2010] FWA 5780
•6 AUGUST 2010
[2010] FWA 5780 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr John Secker
v
Leighton Contractors Pty Limited & MacMahon Contractors Pty Ltd T/A MacMahon Leighton Joint Venture
(U2010/249)
COMMISSIONER WILLIAMS | PERTH, 6 AUGUST 2010 |
s. 394 Termination of employment.
[1] Mr Secker, the Applicant, has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Respondent is Leighton Contractors Pty Ltd and McMahon Contractors Pty Ltd T/As McMahon Leighton Joint Venture.
[2] The application was the subject of a conference before a conciliator however the matter has not been resolved.
[3] Section 394 of the Act allows “a person who has been dismissed” to apply to Fair Work Australia for an order under Division 4 granting a remedy.
[4] The meaning of “dismissed” is set out in section 386(1) as follows:
s. 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.
[5] Subsection (2) of s 386 sets out a number of exceptions to the above definition that are not relevant in this case.
[6] The Respondents have objected to the application on the basis that the Applicant resigned and so the employment was not terminated at the employer’s initiative.
Background
[7] The Applicant commenced working for the Respondents on 12 May 2009 as a Rigger. The Respondents are engaged in building a heavy haul rail line in the Pilbara region of Western Australia in connection with the BHP Billiton Iron Ore Rapid Growth Project 5 Rail Project.
[8] On 2 February 2010, the Applicant and other workers were instructed to report to the rail site. During the day the Applicant left the rail site work area because he had a headache however he did not notify his supervisor or his leading hand at the time that he was doing so.
[9] Later that afternoon one of the Respondents leading hands, Mr Radford, saw the Applicant sitting in the crib shed at Quarry 1. The Applicant told Mr Radford that "he wasn't feeling well and had a headache". There is some disagreement as to what else was said during this discussion.
[10] The Applicant remained at Quarry 1 until the end of his shift.
[11] At the end of that shift Mr Radford explained to Mr Clayton, the Construction Supervisor, what had occurred.
[12] The next day 3 February 2010 the Applicant was requested to attend a meeting with Mr Clayton and Mr Wotherspoon the Construction Superintendent.
[13] The parties disagree as to what happened and what was said at this meeting. The Respondent says that the Applicant made it plain he wanted to leave the site and he resigned. The Applicant says he was dismissed by Mr Clayton.
[14] At the hearing Mr Secker gave evidence and for the respondent Mr Clayton and Mr Radford gave evidence and a written statement from Mr Wotherspoon was tendered.
The Events of 3 February
Mr Secker
[15] Mr Secker’s evidence was that around 9:30 am he was approached by Mr Radford who told him to go with him to the office for a meeting with Mr Clayton.
[16] At the office he was met by Mr Clayton and another person he only knew as Jock. He was unaware at that time this was Mr John Wotherspoon the Construction Superintendent. Mr Radford did not stay for the meeting.
[17] Neither Mr Clayton nor Mr Wotherspoon explained what the meeting was about or that he could have a representative present at the meeting.
[18] The meeting began by him asking what was going on.
[19] Mr Clayton then accused him of walking off the rail site the previous day without telling anybody stating that it could have put undue stress on his fellow workers, Paramedics, and Search and Rescue, because nobody knew where he was.
[20] He told Mr Clayton that he found it hard to believe that nobody knew where he was.
[21] Mr Wotherspoon then said that the applicant had a bad name on other worksites. He did not provide any specific details of this.
[22] Mr Secker denies that he had a bad name on other worksites and says he has received no formal warnings for performance or conduct whilst employed by the Respondent.
[23] He tried to tell them that he had told two other employees “Kingy” and “Chris” and that there was no leading hand to tell he was returning to the crib hut at Quarry 1.
[24] Mr Clayton and Mr Wotherspoon interrupted a lot while he was trying to explain and he was becoming quite annoyed.
[25] He then said words to the effect, ‘we all know why we are here just fucking get on with it and get me the hell out of here’. By this he says he meant that he knew they were going to sack him and so he just wanted them to get on and do it.
[26] Mr Clayton said that he had to sign some paperwork. He had all the paperwork there and he just reached behind him and grabbed it.
[27] He said that he should read it and they said just to sign it. He signed it because he was fairly worked up and wild at that stage and just wanted to get out of there. He signed and printed his name on the piece of paper they put in front of him.
[28] Mr Clayton then told him that his employment was terminated and that he would be leaving the site immediately. He was then asked to wait in the crib room until they could organise somebody to take him back to the camp. Whilst waiting he rang Joe McDonald from the CFMEU and told him that they had just sacked him. Mr McDonald told him to come into the CFMEU offices when he got back to Perth and speak with the Union lawyers about taking an unfair dismissal claim.
[29] He says at no time did he resign from his employment.
[30] He says neither Mr Clayton nor Mr Wotherspoon told him that they were only giving him a written warning.
[31] The first time that he became aware that the Respondent was claiming that he resigned was when he received a Separation Certificate on 24 February 2010.
[32] Mr Radford did speak to him after the meeting but the applicant says he did not tell Mr Radford he was glad he had resigned. He said he was glad he was going.
Mr Clayton
[33] Mr Claytons evidence was that on 3 February 2010 at approximately 9:10am Mr Secker came to his office as requested and upon entering Mr Secker stated "what's all this?" Mr Wotherspoonand Mr Clayton asked Mr Secker if he would like to have someone present as his witness but Mr Secker declined.
[34] Mr Clayton says he asked Mr Secker if he had informed anybody that he had left his place of work the previous day. He responded "there was nobody to tell". He asked Mr Secker if he had informed anybody that he had come back to the crib rooms at Quarry 1. He said no. He asked Mr Secker why he went back to Quarry 1. He replied "because I was feeling sick".
[35] Mr Clayton told Mr Secker that Mr Radford had spoken to him and offered to call the paramedics for him because he was feeling sick, and that he had declined that offer.
[36] Then Mr Wotherspoon told Mr Secker that he had received reports from other bridge areas stating that other supervisors had been complaining about his attitude and performance. At this stage Mr Secker became hostile and aggressive.
[37] Mr Clayton says he then interrupted to defuse the discussion and told Mr Secker that it was unacceptable that he leave his designated work area without notifying, at the very least, the Leading Hand. He told him that upon his arrival to Quarry 1 he should have informed the other Leading Hand who was there.
[38] He says he explained to Mr Secker that, should an evacuation or anything else happen, he needs to be accounted for. He told him that they had no way of knowing his whereabouts if he has not informed his supervisors.
[39] He says he thentold Secker that he was going to issue a written warning as hedeemed his behaviour to be unacceptable.
[40] Mr Secker becamehostile again and started to move toward the door to leave and said "just get me a fucking plane out of here then”. Mr Clayton responded that he would do that, but that Mr Secker had to sign the resignation form first so that he could put it in the system.
[41] Mr Secker then gave him his personal details to write down on the resignation form, which hedid in front of him. Mr Secker then signed the form. Mr Clayton then instructed him to go into the crib room and wait.
[42] Approximately 30-40 minutes later, Mr Clayton drove Mr Secker back to Wedgefield Camp and gave him instructions as to what time the bus would pick him up and what time his flight was. When dropping Mr Secker off, he thanked Mr Clayton who then left.
[43] Mr Clayton said that Mr Secker’s statements were clear that he was resigning and he was not terminated by the respondent.
[44] Mr Clayton says that Mr Secker was paid the Project Incentive Payment provided for under the applicable project agreement because he was not terminated but resigned. 1
Mr Radford
[45] Mr Radfords evidence was that on the morning of 3 February 2010, Mr Radford was asked to fetch Mr Secker and to take him to the office for a discussion with Mr Clayton and Mr Wotherspoon. He was not party to the discussion.
[46] Approximately 30 minutes after the meeting finished, he was told by Mr Clayton that he was going offsite to take Mr Secker to his accommodation because Mr Secker had elected to resign, rather than receive a written warning.
[47] He then went into the crib shed and wished Mr Secker well. Mr Secker seemed to be happy that he was leaving and he told Mr Radford that he was fed up with the job anyway and was glad he had resigned.
Mr Wotherspoon
[48] The statement by Mr Wotherspoon is as follows:
“On 3 February 2010 at approximately 9:00am, Iwas called to Quarry 1 to witness a written warning for John Secker (Becker).
Secker was given a written warning because he had left his work area without informing his supervisor, leading hand or work colleagues and did not return to his work area. This behaviour is classed as dereliction of duties.
When Secker arrived at the office he was in a fairly hostile mood and asked what the meeting was about. I proceeded to ask him why he had left his work area without notifying his supervisor, leading hand or work colleagues.
Secker replied that he had had a sore head and was having a break. Secker told me that Jason Radford (Leading Hand) had asked if he needed a paramedic. Secker said that he declined because he had taken a couple of panadol. He said that he then walked around the lay down area and went back to the crib shed where he spent the rest of the day. During the meeting, we also discussed with Secker his attitude towards other supervisors of the BHPBilliton Iron Ore Rapid Growth Project 5 Rail Project project. In the past, I have attempted to relocate Secker to other bridge sites, but none of the supervisors were happy to take him back due to his attitude and blatant disregard to fellow workers around him.
When Secker was handed the written warning, he said words to the effect of "give me a termination form and get me the fuck out of here'.
Secker then filled in the termination form and waited for transportation back to Port Hedland. That was my last contact with Secker.”
Consideration of the Evidence
[49] I have reviewed the evidence of the witnesses including the statement of Mr Wotherspoon and the exhibits in this matter.
[50] With respect to the meeting held in Mr Clayton's office on 3 February 2010 there is disagreement between Mr Secker and Mr Clayton on some important aspects of that meeting.
[51] Mr Clayton says he had arranged for the Human Resources staff to draft a written warning 2 prior to the meeting being held and during the meeting he told Mr Secker that he would be given a written warning for his actions of the previous day. Mr Secker to the contrary says there was no mention of him receiving a written warning at all during the meeting.
[52] I note that the statement of Mr Wotherspoon says that Mr Secker was handed a written warning.
[53] On behalf of Mr Secker it was submitted that Mr Wotherspoon’s statement in this regard contradicts the evidence of Mr Clayton who said only that it was explained to Mr Secker that he was to receive a written warning but that it was never actually handed to him.
[54] I do accept that there is a discrepancy on this point between Mr Wotherspoon’s statement and Mr Clayton’s evidence however, whether or not Mr Secker was handed the written warning, the statement of Mr Wotherspoon does support the evidence of Mr Clayton that Mr Secker was aware he was to receive a written warning (for his actions of the previous day) before he made the statement that both Mr Wotherspoon and Mr Clayton understood to mean he wanted to leave the site and was resigning.
[55] On this point then the weight of evidence favours the Respondents version of what occurred in this meeting and I find that Mr Secker was aware he was to receive a written warning for his actions of the previous day and he was aware of this before he made any statements about wanting to leave the site.
[56] With respect to what Mr Secker did say about wanting to leave the site his evidence was that the words he used meant that he knew they were going to dismiss him and so he just wanted them to get on with it.
[57] He agrees that Mr Clayton then asked him to sign some paperwork which he did but that he did not read this. He says at no stage did this mean he was resigning.
[58] Mr Clayton says that, having been told he was to receive a written warning, Mr Secker moved towards the door to leave the office and said that he wanted them to get him a plane out of there. Mr Clayton says he told him that if that's what he wanted he had to sign a resignation form first so the appropriate arrangements could be made for him to leave site. This paperwork was then filled out and Mr Secker signed it.
[59] Mr Wotherspoon's statement was that after Mr Secker received the written warning he said that he wanted a termination form and to get out of here. Again this statement is generally consistent with Mr Clayton’s evidence of what occurred although not exactly the same.
[60] It is clear then on the evidence that both Mr Clayton and Mr Wotherspoon understood Mr Secker, by his actions and his words, to be resigning.
[61] The Respondent provided a number of forms that had been completed by both Mr Secker and Mr Clayton. Firstly the form that Mr Secker signed during the meeting is headed “Termination Notice” 3. The evidence of Mr Clayton is it is a generic form used whenever an employees employment ends. He says there is no separate form for employees who resign to fill in.
[62] In the middle of the form there is a heading “Termination Reason” and there are 13 boxes that can be ticked adjacent to various reasons for termination. The reasons for termination that can be ticked include some that usually would indicate that the termination of employment has come about at the employees initiative. These listed reasons include career change, personal issues, remuneration, unhappy with role, unhappy with manager, ill health and other employment. Other of the termination reasons are ones that would usually indicate that the termination of employment had come about at the employers initiative. These include termination in probationary period, accommodation withdrawn, and performance. The remaining few reasons are ambiguous and include relocated, finished contract and abandoned employment. There is no provision on the form for resignation to be identified as a reason for termination.
[63] On the Termination Notice that Mr Secker signed at the meeting 4 Mr Clayton ticked two boxes being “unhappy with role” and “performance”. The first of these, unhappy with role, would suggest a termination at the initiative of the employee whereas performance would suggest a termination at the initiative of the employer. In my view then the Termination Notice that was filled out and then signed by Mr Secker at the meeting does not assist in the consideration of whether Mr Secker resigned or was terminated by the Respondent.
[64] In terms of other paperwork filled out on the day Mr Secker's employment ended Mr Clayton completed a “'Demobilisation Evaluation” 5. This form also includes seven boxes that can be ticked which denote different reasons for the employee leaving the project. These are other employment, health related, personality conflict, dissatisfaction with remuneration, laid off at the end of contract, terminated by the employer and demobilised.
[65] Again these are a mixture of reasons for an employee leaving some of which would indicate the employment ended at the initiative of the employee and others would indicate the employment ended at the initiative of the employer.
[66] On this form Mr Clayton did not tick any of these options but instead drew an additional box on the form and wrote next to this “Other”. Underneath this there is a line headed “Explain Reason(s)”. Underneath this in the space provided on the form Mr Clayton has handwritten in the word “Resignation”.
[67] This Demobilisation Evaluation form, completed after the meeting with Mr Secker, does support Mr Clayton’s evidence that his understanding of what occurred was that Mr Secker had resigned. I note also that Mr Secker's evidence was that the separation certificate that was subsequently provided to him also indicated resignation as the reason for the employment ending. Again this is consistent with the evidence of Mr Clayton and the statement of Mr Wotherspoon that they understood Mr Secker to have resigned.
[68] It was submitted on behalf of Mr Secker that on both the Termination Notice and the Demobilisation Evaluation Form Mr Clayton had indicated by ticking particular boxes that he would prefer not to re-employ Mr Secker. It was submitted that this indicated that Mr Clayton’s evidence that his intention was to only give Mr Secker a written warning at their meeting was not true because he viewed the actions of the previous day as so serious that Mr Secker should not be re-employed. This submission is not the only explanation and ignores the fact that Mr Secker had been hostile during the meeting with Mr Clayton and Mr Wotherspoon and in their view he had then resigned. These additional actions of the applicant would be further reasons why Mr Clayton may not have preferred to re-employ Mr Secker in the future in addition to Mr Secker having left his worksite the previous day without notifying his supervisor or leading hand.
[69] The respondent referred to clause 4.7 (e) of the applicable project agreement 6whichprovides that a Project Incentive Payment, a weekly amount of $180 that accrues and is paid out to employees on the completion of their employment, will not be paid to an employee whose employment ceases due to dismissal for “conduct reasons”. The evidence was that the Respondent did pay the accrued Project Incentive Payment to Mr Secker which is not consistent with him having been terminated by the Respondent as the Applicant asserts occurred.
[70] There is other evidence that supports Mr Clayton’s and Mr Wotherspoon's view that Mr Secker had resigned and that is the evidence of Mr Radford. Mr Radford was not present in the meeting on 3 February 2010. His evidence was that after the meeting Mr Clayton told him that Mr Secker had elected to resign rather than receive a written warning. Mr Radford also says that he then spoke to Mr Secker and he seemed happy that he was leaving and Mr Secker told him that he was glad he had resigned. Mr Secker however denies that he said this to Mr Radford.
[71] Mr Secker in his evidence says that having left the office and having been terminated by his employer he rang Mr McDonald of the CFMEU. Mr Secker says he told Mr McDonald that he had just been dismissed. On this point I note it was open to the Applicant to call Mr MacDonald to give evidence that would confirm that this is what Mr Secker had said to him shortly after the meeting with Mr Clayton and Mr Wotherspoon. Mr McDonald however was not called to give evidence.
[72] On a range of other issues there was conflict in the evidence of Mr Secker with that of Mr Clayton and Mr Radford both regarding the events of 2 February 2010 and other issues including simple factual matters such as the distance of the rail work site from Quarry 1.
[73] These evidentiary conflicts were of no direct relevance to determining this application but the respondent says that these differences in evidence between Mr Secker and Mr Clayton and Mr Radford, who were generally consistent on these points, demonstrates that Mr Secker's credibility is poor.
[74] On the question of the credibility of the three witnesses my view was that Mr Clayton and Mr Radford gave open and detailed answers in their responses whereas by contrast at times Mr Secker limited his responses when challenged on particular points to “I disagree”, without any elaboration. Considering this and the matters the respondents representatives have highlighted overall Mr Secker impressed me as a less credible witness than the witnesses for the Respondent.
[75] In conclusion then Mr Clayton and Mr Wotherspoon say that Mr Secker clearly resigned and Mr Randall gave evidence that Mr Secker told him he had resigned. Considering all of this evidence then on balance I am satisfied that by his words and his actions at the meeting with Mr Clayton and Mr Wotherspoon that Mr Secker did indicate to them that he was resigning.
Conclusion
[76] The Applicant argues that if the tribunal concludes that as a matter of fact there was a resignation by Mr Secker the tribunal must be satisfied that it was a real resignation being one that was voluntarily given such that it was reasonable for the Respondent to rely upon it. It is submitted that the tribunal must consider all the circumstances surrounding the resignation.
[77] In this instance the evidence is that Mr Secker became hostile during the meeting on 3 February 2010 but there is no evidence that he was so upset or agitated that his actions and statements should have been recognised by the Respondent as aberrant or ones made in anger to the degree that they should have been ignored by the Respondent.
[78] After Mr Secker's statements in the meeting with Mr Clayton and Mr Wotherspoon he cooperated with Mr Clayton in the completion of the termination notice. After this he waited for 30 minutes or so in the crib room before transport was arranged. He then spent a further period in a vehicle with Mr Clayton on the way to the camp. There was obviously during all this time an opportunity for Mr Secker to attempt to retract his resignation if in fact it was given in anger or on the spur of the moment, but he did not do so.
[79] It cannot be said that the conduct of Mr Clayton and Mr Wotherspoon in having the meeting with Mr Secker was inappropriate in some way and in particular it cannot not be said that their conduct forced him to resign. The evidence is that there was no intention by Mr Clayton to bring Mr Secker's employment to an end and in fact he had no authority to do so in any event. It could not be said that the actions of the employer was such that the probable result of the meeting with Mr Secker was that he had no real choice but to resign. 7
[80] I am satisfied that the resignation by Mr Secker was not forced by the conduct of the employer. 8
[81] Mr Secker was not dismissed and so there is no jurisdiction to hear this application.
[82] This application is dismissed.
COMMISSIONER
Appearances:
Mr M Swinbourn of the Construction, Forestry, Mining and Energy Union on behalf of the Applicant
Ms Erica Hartley, Partner, Freehills on behalf of Leighton Contractors Pty Limited & MacMahon Contractors Pty Ltd T/A MacMahon Leighton Joint Venture
Hearing details:
2010.
Perth:
July 21.
1 See Clause 4.7 (e) of the Macmahon Leighton Joint Venture Rapid Growth Projects - BHPIO Employee Collective Agreement 2009.
2 Exhibit R5
3 Exhibit R1
4 Exhibit R1
5 Exhibit A3
6 The Macmahon Leighton Joint Venture Rapid Growth Projects - BHPIO Employee Collective Agreement 2009
7 O’Meara v Stanley Works Pty Ltd, PR973462 at PN23
8 Mohazab v Dick Smith Electronics Pty Ltd (No 2, (1995) 62 IR 200 at 207, 28
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