Mr M K v The Company

[2011] FWA 4692

[2011] FWA 4692

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Mr M K
v
The Company
(U2011/4980)

COMMISSIONER ROBERTS SYDNEY, 9 SEPTEMBER 2011

Application for unfair dismissal remedy - jurisdictional question - no termination at the initiative of the respondent company.

[1] This decision concerns an application by Mr M K (the Applicant) lodged on 11 February 2011, pursuant to s.394 of the Fair Work Act 2009 (the Act) for relief in respect of the termination of his employment by the Company.

[2] The application was dealt with by a Fair Work Australia conciliator on 8 March 2011 but the conciliation was unsuccessful. On 18 March 2011 the Company filed an objection to the application arguing that the Applicant was not terminated on the employer’s initiative.

[3] The jurisdictional objection and arbitration came before me for hearing in Sydney on 5 July 2011. The Applicant was represented by his father, Mr W K and the Company was represented by its owner Mr C. Directions were initially issued on 25 March 2011 for the filing of submissions, witness statements and other documentary materials. The Applicant failed to comply with the Directions and a hearing before Senior Deputy President Drake took place on 21 April 2011 in relation to the non-compliance. Further Directions were issued by her Honour and both parties complied with those Directions with that process completed on or about 26 May 2011.

[4] The Applicant gave sworn evidence on his own behalf and Mr C and his wife Mrs C gave sworn evidence for the Company. During the proceedings I explained to the parties that both the jurisdictional objection and the substantive arbitration would be heard together. My decision would then deal with the jurisdictional objection as a threshold matter and only proceed to determine the substantive application should the jurisdictional objection be dismissed.

Background

[5] The Applicant was employed by the Company from September 2008 (the approximate date given by the Applicant) or 17 March 2009 (the date given by the Company). The variance between the two dates is not significant to my consideration in this matter. However, on the balance of probabilities, I am satisfied that the date provided by the Company probably is the correct one. The employment relationship ended on 2 February 2011, which date is not in dispute between the parties. However, the Applicant claims that his employment was terminated at the initiative of the employer while the Company maintains that he resigned from his employment.

[6] During the period of his employment, The Applicant worked as an apprentice Panel Beater.

Evidence

The Applicant

[7] The Applicant gave sworn evidence and submitted a witness Statement 1. In his witness statement, the Applicant said, in summary:

• That Mr C had arranged an apprenticeship for him and enrolled him for TAFE with an arrangement between Mr W K and Mr C that the TAFE fees would be reimbursed to Mr W K at the end of each year.



• That he often worked extra time for Mr C.



• That: “Towards the end of my second year and start of my third year [Mr C]’s attitude towards me changed dramatically saying I was slacking off due to the fact I had a girlfriend and had gotten my licence and a car.”



• That: “[Mr C] would push me to get work out not really concerned with the work quality then he would discipline me and say I wasn’t doing a good enough job.”



• That he was not allowed to use the tool box paid for by the Apprenticeship Board for his own use at home.



• That on 1 February 2011, Mr W K and Mr C: “had words regarding the TAFE fees and [Mr C]’s wife rang my father that afternoon to say that she had rang the apprenticeship board and told them I no longer worked for [the Company].”

[8] The Applicant went on to say that he sought an order for reinstatement and compensation for lost wages.

[9] In supporting oral evidence, the Applicant said that after finishing work on 1 February 2011, Mr W K had conversations with Mr C about the TAFE fees and he also was told by his father that Mrs C had telephoned him and informed him that the Applicant was no longer working for the Company and the Apprenticeship Board had been informed.

[10] He went on to say that he attended the Company’s premises on 2 February with his father. “We went in to pick up my tool box. I had begun to take my tools and put them into the back of the car. Dad had a talk with [Mr C] and they had a bit of an argument. We had left. And yes, that was it. We came back and we picked up my car that I had been doing up.” 2

[11] The Applicant said that he had a discussion with Mr C on 2 February “and he told me that everything that happened was a result of what happened between him and my father ...” 3

[12] In response to a question from me, the Applicant said that he relied on his father’s account of his conversation with Mrs C. He did not hear Mrs C say anything about the termination of his employment.

[13] In cross-examination, the Applicant agreed that he was not told by Mr C that his employment had been terminated. 4 He was then asked: “Did you come in with your father and just collect your tools on your own behalf?” and replied: “Yes I did.”5

Mr C

[14] Mr C gave sworn evidence and submitted a witness statement 6. In summary, Mr C said that:

• Mr W K approached him in February 2009 to take the Applicant on as an apprentice.



• He dealt with all matters concerning the Applicant through Mr W K.



• “I have on several occasions asked [the Applicant] to deal with me direct as I have employed him and not his father however this has never happened.”



• In December 2010 he told Mr W K that he was unhappy with the Applicant’s work as the Applicant was being distracted by a new girlfriend and the obtaining of his driving licence.



• Around Christmas 2010 he told the Applicant and Mr W K that: “over the holidays [the Applicant] had to revaluate what he wanted and if panel beating was the right choice for him as he was not where he should be regarding his workmanship and skills level.”



• He had an altercation on the telephone with Mr W K on 1 February 2011 concerning the Applicant.

[15] Mr C went on to say that during the telephone conversation on 1 February 2011: “This was where [Mr W K] started to yell and told me to ‘listen here that [the Applicant] is only 17 and can’t be expected to think like an adult. [Mr W K] then wanted to know where I was and then hung the phone up on me’. So I then called [Mr W K] back to try and sort this out again [Mr W K] was yelling at me saying I was working his son too hard and to look at myself before judging others. He also said that I need to spend more time at the workshop and why was his son always babysitting the workshop. This is where I told [Mr W K] that this is my business and I can do what I like and that I had employed [the Applicant] not him. This was when he told me he wanted to come down and sort this out like real men and hung up on me again.”

[16] M C went on to say that he then received a SMS on his mobile phone from Mr W K concerning the repayment of TAFE fees. “This is when my wife [Mrs C] called [Mr W K] to try and sort this mess out calmly when he started yelling at her telling her he was a 45year old man and knows the law and will destroy our business. He asked her why was I not willing to sort this out like men and this was when my wife said we will not tolerate threats of violence and that if [the Applicant] was so unhappy not to come back tomorrow. [Mr W K] then was still yelling saying ‘So what your going to sack him over the phone through his father and she said well can we speak to [the Applicant] and [Mr W K] said no. This was when he then hung the phone up on my wife.”

[17] Mr C went on to say that on 2 February 2011 the Applicant and his father came to the workshop to collect the Applicant’s tools and Mr W K behaved in a hostile manner towards Mr C. Mr C subsequently reported the threats allegedly made by Mr W K to police. He went on to say: “Unfortunately due to the involvement of [the Applicant]’s father through the whole of [the Applicant]’s employment his father has made it very difficult for myself to communicate with [the Applicant]. I will not tolerate threats of violence from anyone and unfortunately due to [the Applicant]’s father’s interference in [the Applicant]’s employment. [The Applicant] no longer works for [the Company].”

[18] In his supporting oral evidence, Mr C repeated that he had not told Mr W K that the Applicant’s employment was terminated. 7 He went on to say that prior to Christmas 2010, the Applicant was a good worker.8 He went on to deny that he had ever offered anything beyond ‘constructive criticism’ to the Applicant.9

[19] In cross-examination, Mr C:

• Said that he did not speak with the Applicant directly on 1 February because Mr W K had initiated the phone conversation. 10



• “Said that he had tried to call the Applicant’s mobile phone but had only reached his message bank. 11



• “Was questioned at length concerning the Applicant’s work performance and skill level.



• “Agreed that he told the Applicant on 2 February words to the effect: ‘This has all transpired due to your father's actions.’ 12

Mrs C

[20] Mrs C gave sworn evidence but did not submit a witness statement.

[21] In her evidence, Mrs C said that to her knowledge the Applicant had never directly expressed any unhappiness relating to his work or the workplace. 13 In relation to the termination issue, Mrs C denied advising Mr W K that the Applicant’s employment had been terminated. She said that Mr W K had asked “are you firing [the Applicant]?”, she had replied “No” and asked to speak to the Applicant. Mr W K had then hung up the telephone. She did not contact the Apprenticeship Board to cancel the Applicant’s apprenticeship until approximately 8.30 to 9.30 am on 2 February 2011. “That was after they'd already said that [Mr W K] had already been in contact with them that morning. And that's when I tried to see where we stood in regards to his apprenticeship because at that stage [the Applicant] had already come and collected his tools.”14

[22] In cross-examination, Mrs C:

• Denied that she told Mr W K on 1 February 2011 that she had contacted the Apprenticeship Board to inform that body that the Applicant no longer worked for the Company. 15



• “Said that she would have been unable to contact the Board as its office would have been closed at the time of the conversation. 16



• “Said that she was not present when the Applicant came to collect his tools around 8 am on 2 February 2011. 17



• “Said that she contacted the Apprenticeship Board on 2 February 2011 after Mr W K had already spoken to them. 18



• “Strongly denied telling Mr W K that the Applicant’s employment had been terminated: “I just said if he was that unhappy, why does he want to come back and work with us.” 19



• “Was asked: “Did you anticipate he would return to work the next day?” and replied: “I didn't think he would to be honest with you, but I didn't know.” 20

Submissions

[23] Both parties made oral submissions and relied on documentation which was entered into evidence. I have paid regard to the submissions made and to all the relevant documents in addition to the sworn evidence.

Conclusions and Finding

[24] Subsection 386(1) of the Act provides:

“(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.”

[25] In the case before me, the Applicant maintains that subsection 386(1)(a) applies to his situation. Jurisdiction can only exist where termination of employment at the initiative of the employer has occurred. “Initiative” is relevantly defined in the New Shorter Oxford Dictionary as:

“initiative 1. The action of initiating something or of taking the first step or the lead; an act setting a process or chain of events in motion; an independent or enterprising act.”

[26] This definition was considered in Mohazab v Dick Smith Electronics Pty Ltd 21 (Mohazab) where at p205 a Full Court of the Industrial Relations Court of Australia said, “… a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship.”

[27] In Mohazab, the Full Court also said:

“In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship.” 22

[28] In P O’Meara v Stanley Works Pty Ltd 23(O’Meara), a Full Bench of the AIRC said:

“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” 24 Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.”25

[29] On the evidence and materials before me, I am unable to conclude that the Applicant’s employment was terminated at the initiative of the Company.

[30] The ending of an employment relationship can only be an unfair dismissal if that relationship was terminated at the initiative of the employer. After a careful examination of all the material and evidence before me, on the balance of probabilities, I am satisfied that the ending of the Applicant’s employment relationship with the Company did not occur at the initiative of the Company. The untangling of the events, particularly those on 1 and 2 February 2011, has not been an easy task. All in all, as I expressed to the parties on more than one occasion during the hearing, this was a case that should have been settled between them on an amicable basis without recourse to a determination by this Tribunal. Due to the nature of the allegations flying between the parties, this is a case where the identities of the parties should be suppressed so that both sides can move on after this decision.

[31] The most unusual factor in this case has been that the Applicant appears to have played no role at all in the ending of the employment relationship beyond turning up on 2 February 2011 to pick up his belongings. The apprenticeship with the Company was arranged by his father who made certain alleged arrangements with the Company for him to pay the Applicant’s TAFE fees and then be reimbursed by the Company at the end of each year. Subsequent disputes over the payments seem to have coloured the relationship between Mr W K and the Company which ultimately led to the events of 1 and 2 February 2011. In fact, all aspects of the employment relationship apart from the actual work performed by the Applicant appear to have been conducted directly between Mr W K and Mr and Mrs C. The Applicant appears to have been a bystander in any discussions concerning his workload, work performance, need to take leave etc. In this context, it is important to note that the Applicant apparently never complained to Mr or Mrs C about any matter relating to his employment. Complaints were made and pursued directly by Mr W K.

[32] The telephone discussions between Mr W K and Mr C and Mrs C on 1 February 2011 appear to have been highly emotional ones and I accept that the parties may have honestly-held differences in their memories of what was said. However, I am satisfied on balance that the evidence of Mrs C can be relied upon in my forming the conclusion that she did not say words which could be reasonably interpreted as constituting the termination of the Applicant’s employment. What is clear to me is that by 1 February 2011 the relationship between Mr W K and Mr C was totally fractured. The relationship between Mr W K and Mr C had deteriorated to the point of invitations ‘to step outside and settle it like men’ and other alpha male chest-beating behaviour. The action of Mr W K and the Applicant attending the Company’s premises on the morning of 2 February 2011, and subsequently, to remove the Applicant’s property constituted an ending of the employment relationship at the initiative of the Applicant. The Applicant’s evidence is clear that he never personally heard Mr C or Mrs C say anything about the ending of the employment relationship and was not told by Mr C on 2 February 2011 that he had been terminated.

[33] On one view, the close involvement of Mr W K in seeking to ‘protect’ his son and to assert his son’s alleged rights is understandable and, in some ways, commendable. However, it inevitably led to a situation where it was fair of Mr C to wonder whether he was employing the son or the father. This, combined with disputes over money between Mr W K and Mr C, led to the inevitable result of the ending of the employment relationship between the Applicant and Mr C. I don’t believe that the Applicant had any say in the outcome.

[34] Therefore, I find that there was no termination of employment at the initiative of the employer and consequently the Tribunal does not have jurisdiction to further determine the application. The application for relief is therefore dismissed.

[35] An order reflecting this decision is in PR512196.

COMMISSIONER

Appearances:

W K for the Applicant.

C for the Company.

Hearing details:

2011.
Sydney:
5 July.

 1   Exhibit K1.

 2   Transcript PN79.

 3   Transcript PN85.

 4   Transcript PN115.

 5   Transcript PN116

 6   Exhibit B2.

 7   Transcript PNs183-184.

 8   Transcript PN190.

 9   Transcript PN193.

 10   Transcript PN221.

 11   Transcript PN230.

 12   Transcript PN265.

 13   Transcript PN313.

 14   Transcript PN308.

 15   Transcript PN320.

 16   Transcript PN324.

 17   Transcript PN333.

 18   Transcript PN338.

 19   Transcript PN368.

 20   Transcript PN369.

 21 62 IR 200 (1995).

 22 62 IR 200 at pp205-206.

 23   PR973462, 11 August 2006 (Giudice P, Watson VP, Cribb C).

 24   Mohazab at page 205.

 25   PR973462, above n 75 at para 23.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR512195>