Mr Keith Taylor v Agas National

[2016] FWC 3435

[2016] FWC 3435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mr Keith Taylor
v
AGAS National
(U2016/4880)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 13 JUNE 2016

Unfair dismissal – whether resignation – no effort to cure the breach - innocent party (employer) accepted the contractual breach (by employee)

[1] This decision concerns an application by Mr Keith William Taylor under section 394 the Fair Work Act 2009 (“the Act”) seeking an unfair dismissal remedy arising from his alleged dismissal by AGAS National Pty Ltd T/A AGAS National (“the employer”) on 4 February 2016.

[2] Mr Taylor performed duties as a Truck Driver transporting gas cylinders for the residential and commercial markets. He had done so since 9 July 2013 on a full-time basis.

[3] On Thursday, 4 February 2016, Mr Taylor was approached by Mr Stuart Potter, the Operations Manager for the employer, having just completed his delivery run. Mr Potter sought to hold a discussion with Mr Taylor about a vehicle accident that had occurred in the course of Mr Taylor undertaking his delivery duties on a prior date. Mr Potter contends that when he attempted to speak to Mr Taylor, Mr Taylor became abusive and argumentative about this issue and other matters that were raised during the conversation. Critically at that juncture, Mr Potter contends that Mr Taylor told him to “shove your job I won’t be back”. The exchange in this regard was witnessed by Mr Julio Las Heras, the General Manager, who was standing nearby to the Mr Potter and Mr Taylor. Mr Las Heras gave corroborative evidence in relation to Mr Potter’s claims as set out above.

[4] Mr Potter and Mr Las Heras claimed that Mr Taylor made disparaging remarks about both of them before leaving the workplace.

[5] Mr Taylor’s version of the above events differs, which is unremarkable. Mr Taylor contends that the only salient comment made was by Mr Potter to himself after they discussed the vehicle damage, and following Mr Taylor having suggested that the trucks should be fitted with reversing cameras, was to the following effect:

“If you don’t like the job find another.”

[6] With that said, Mr Taylor walked away without comment, having concluded that Mr Potter had terminated his employment.

[7] Following Mr Taylor leaving the workplace, Mr Leonard Martin, the Logistics Manager for the employer, made four telephone calls to Mr Taylor between 3:45 PM and 7 PM. On each occasion there was no answer.

[8] Mr Potter made also made two telephone calls to Mr Taylor on 4 February 2016. The first of these was at 4 PM and the second was at 5 PM. On neither occasion did Mr Taylor answer the telephone calls.

[9] All in all, Mr Taylor’s employer made six telephone calls to him following his departure from the workplace on Thursday, 4 February 2016.

[10] At 5:25 AM on Friday, 5 February 2016, immediately prior to the commencement of his shift, Mr Taylor sent a text message to Mr Martin. That text message read as follows:

“Will not be in”

[11] Mr Martin, having received this text message, made two further to telephone calls to Mr Taylor. The first of these was at 5:30 AM. There was no answer. The second telephone call was at 6:30 AM. There was no answer on this occasion either.

[12] Thereafter, Mr Martin sent to text messages to Mr Taylor. The first message was sent at 7:43 AM on Friday, 5 February 2016, and read as follows:

“Mate will u be in Monday cheers Lenny”

[13] There was no response to this text message (even though evidence was given that the use of SMS texting was ubiquitous in the workplace).

[14] Mr Martin sent a further text message to Mr Taylor at 9:44 AM that same day. The text message read as follows:

“Mate can U please call me or send me a text and I will call you”

[15] There was no response to the second text message.

[16] On Monday morning, Mr Taylor presented for his shift at the usual time. He was advised at this time that his employer had accepted his resignation and his services were no longer required.

Consideration

[17] There is only a very narrow field of evidence before me, and both parties exhibited strong, adverse views as to the conduct of the other party. Notwithstanding, I am required nonetheless required to reach a finding as to the nature of the conduct exhibited by Mr Taylor on Thursday, 4 February 2016, and whether that conduct in the context of the circumstances of the following days, warrants a finding that Mr Taylor resigned his employment, and if so, whether his employer was entitled to accept that resignation as an indication that he (Mr Taylor) was no longer committed to giving service to his contract of employment.

[18] If I accept the evidence of Mr Taylor, it follows that Mr Taylor was the recipient of a comment by Mr Potter to the effect that if he (Mr Taylor) no longer enjoyed his job he should seek out another job. Mr Taylor’s viva voce evidence was that there was no strong emotion in the exchange between himself and Mr Potter, and no heightened tension or abusive language was exhibited by either he or Mr Potter. That is, the exchange was conversational in tone.

[19] On Mr Taylor’s viva voce evidence, he (Mr Taylor) simply left the workplace following Mr Potter’s comment, and did so on the basis that Mr Potter’s comment to him (conveyed in the manner set out above) was sufficient to demonstrate that he had been dismissed from his employer’s employment, an action that had caused him considerable stress. This, according to Mr Taylor, was the reason why he did not respond to Mr Potter and Mr Las Heras’ telephone calls and text messages.

[20] Despite having reached this view, and refusing to respond to his employer’s approaches, Mr Taylor explained in his viva voce evidence that he sent a text to his employer on the Friday morning indicating that he would not be coming to work on the basis that he surmised that there was some uncertainty in respect of his dismissal. But having reached this view by early Friday morning, Mr Taylor still did not taken any steps at that time or thereafter to respond to his employer’s continuing overtures. By Monday morning, Mr Taylor, who had remained incommunicado, sought to recommence work, but was denied that opportunity by his employer.

[21] Mr Taylor’s evidence about his responses to his employer’s conduct, as I have set it out, does not make for a continuous narrative or convey a realistic pattern of conduct arising from a realistic context. If the exchanges between Mr Taylor and Mr Potter were so mild and temperate, why did Mr Taylor believe (on a reasonable basis) himself to have been dismissed? Why was it that Mr Taylor firstly believed himself to have been dismissed, and refused contact with his employer, but subsequently believed that his circumstances might be otherwise, and that a return to work was possible? If Mr Taylor had by Friday morning reached the view that he may not have been dismissed by Mr Potter (as he said he had in explanation for his text message), why did he not make some endeavour to respond to any of the texts and phone messages left for him?

[22] There are other matters that trouble me in relation to Mr Taylor’s evidence.

[23] It seems to me that the words said by Mr Potter to Mr Taylor (as alleged by Mr Taylor) were not sufficient in the context to warrant the employer’s subsequent conduct in repeatedly attempting to contact Mr Taylor to ascertain his disposition in relation to his position. That is, the events that followed Mr Taylor leaving the workplace do not explain the employer’s conduct.

[24] If I accept Mr Taylor’s evidence; that Mr Potter said to him (in a conversational tone) words to the effect that if he did not like his job he could find another, then without more, it would not be reasonable for the employer to have fallen into genuine doubt as to Mr Taylor’s continuing commitment to his position such that it would make such unusual efforts to make contact with him that afternoon and the following day.

[25] Put another way, having heard the evidence, Mr Potter’s words as they were said to have been uttered do not in themselves give sufficient warrant for the employer’s subsequent conduct. On what reasonable basis then would Mr Potter and Mr Martin telephone Mr Taylor six times, and text message him on two further occasions (all of which went without reply) if the exchange had amounted only to what is pressed in Mr Taylor’s evidence?

[26] However, if I accept the evidence of the employer then it becomes palpably clearer that the employer’s subsequent conduct in attempting to contact Mr Taylor is made explicable on the balance of probabilities by reference to Mr Taylor’s remark (to the effect) that he no longer wish to work for the employer, and that the comment had been made in the context of Mr Taylor being agitated and having made wider, abusive comments. An exchange of this kind reasonably would bring the prospect of Mr Taylor’s future attendance at work into reasonable doubt and warrant the employer making the subsequent efforts it did to contact Mr Taylor.

[27] I make another point about the witness evidence of Mr Potter and Mr Las Heras. I questioned both of these witnesses separately. I asked them questions which did not relate to specific evidence given in their statements. In particular, I asked Mr Potter and Mr Las Heras what were the particular abusive comments allegedly said by Mr Taylor in his exchange with Mr Potter. Neither witness volunteered this information, and it was necessary for me press my questions in order to elicit a response. Both Mr Potter and Mr Las Heras eventually disclosed that Mr Taylor had referred to Mr Las Heras as being “gay” or a “homosexual” and Mr Potter as being a “kiwi” of some colourful description.

[28] It could not be said that this evidence is elicited under my questioning when each of the witnesses was separated was rehearsed or fabricated. Neither witness could have anticipated my questions and neither witness volunteered their responses. Further, neither drew upon identical language in recollecting Mr Taylor’s comments. The evidence unfolded in a natural manner which compels me to the finding that both Mr Potter and Mr Las Heras were witnesses of truth.

[29] On the balance of probability, I accept the employer’s evidence as it is credible and provides a more readily explicable narrative that integrates agreed facts (as to the frequency and manner of the employer’s efforts to contact Mr Taylor) with the evidence of Mr Potter and Mr De Las Heras.

[30] Because I have so found, I consider that Mr Taylor, in stating to his employer on Thursday, 4 February 2016 that he could “shove his job”, not presenting for work and giving no reason for his absence on Friday, 5 February 2016, and failing to respond to his employer’s frequent and varied efforts to contact him between 4 February and 5 February 2016, effectively repudiated his contract of employment.

[31] That is, Mr Taylor’s conduct in total was sufficient for his employer to reach a reasonable state of belief that he (Mr Taylor) had renounced his contract of employment and no longer wished to offer his services for the benefit of his employer.(See Koompahtoo Local Aboriginal Land Council v Sapine Pty Ltd (2007) 233 CLR 115 at [44-49]).

[32] Having so concluded, the employer elected to accept the conduct in repudiation and Mr Taylor ceased to be an employee of the employer.

[33] Mr Taylor presented for work on Monday, 8 February 2016, but did so without explanation or apology or any other effort making to cure the breach. The employer, as the innocent party I have found it to be, having accepted Mr Taylor’s repudiatory breach arising from the circumstances of 4-5 February 2016, was not satisfied it should review its decision in this regard, and Mr Taylor was not re-employed, or taken to have remained a continuing employee, as the case may be.

Legislative Provisions

[34] The relevant legislative provisions, which require that a person can only be dismissed if they have been dismissed at the initiative of his or her employer are as follows:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

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.

[…] [My emphasis]

Conclusion

[35] To the reasonable person, Mr Taylor’s conduct as a whole manifested an intention to no longer be bound by his contract of employment and to no longer render dutiful service to his employer. Mr Taylor’s employer elected to accept the repudiatory breach and Mr Taylor’s employment came to an end. As such, the reason for the termination was not the election by the employer as such, but the conduct in repudiation by Mr Taylor (no less than the acceptance of an express resignation brings the employment relationship to an end, though the resignation remains the determining reason for the cessation of the relationship).

[36] Thus there was no dismissal at the initiative of the employer as such, and the requirement of s.385(a) of the Act has not been made out. The application under s.394 of the Act is itself dismissed, as a consequence.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr Taylor for himself

Mr De Las Heras for the respondent

Hearing details:

10AM, Thursday 9 June 2016.

Brisbane, Qld.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR580891>