Mr Martin Holland v Omega Plumbing Pty Limited

[2013] FWC 1843

[2013] FWC 1843

FAIR WORK COMMISSION

DECISION

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

Mr Martin Holland
v
Omega Plumbing Pty Limited
(U2012/9968)

COMMISSIONER CAMBRIDGE SYDNEY, 26 MARCH 2013

Unfair dismissal - jurisdictional objection - s.386 - employment not terminated on initiative of employer - application dismissed.

[1] This matter involves an application for unfair dismissal remedy made pursuant to section 394 of the Fair Work Act 2009 (the Act). The application was made by Martin Hubert Holland, (the applicant) and the respondent employer has been identified as Omega Plumbing Pty Limited (the employer).

[2] The application was lodged at Sydney on 15 October 2012. The application indicated that the date of the applicant’s dismissal was 2 October 2012. Consequently the application was made within the 14 day time limit prescribed by subsection 394 (2) of the Act.

[3] Conciliation of the claim was unsuccessful and the employer raised a jurisdictional objection to the matter primarily on the basis that the applicant was alleged to have resigned from employment and was therefore not a dismissed employee. The matter proceeded to a Jurisdictional Hearing before the Fair Work Commission (the Commission) conducted in Sydney on 25 January 2013.

[4] At the Hearing, the employer was “self represented” by Mr Allan Ferguson the owner of the employer’s business. Mr Ferguson called one witness, Mr Darren Wayne Lee who gave evidence in support of the jurisdictional objection. The applicant was represented by Mr Jake Boghossian, solicitor from Connect Legal. Mr Boghossian called the applicant as the only witness to give evidence in opposition to the jurisdictional objection raised by the employer.

The Factual Contest

[5] The jurisdictional objection raised by the employer turns upon a direct and blunt factual contest involving the conduct that occurred at the time that the applicant’s employment came to an end on 2 October 2012 (the termination event).

[6] The witness for the employer, Mr Lee, was one of two managerial staff present at a meeting held with the applicant on 2 October 2012. The meeting was arranged for the purpose of discussing with the applicant questions which had arisen about the validity of the applicant’s plumbing licence and the status of his motor vehicle driver’s licence.

[7] According to Mr Lee, shortly after the meeting commenced and in response to a question about his plumbing licence, the applicant stood up, reached into his back pocket and produced a folded piece of paper which he described as his resignation letter. The letter was unfolded and the applicant gave it to the managers who read its contents and verbally confirmed that the applicant’s resignation was accepted.

[8] In somewhat amazingly stark contrast, the applicant said that the termination event involved Mr Lee and the other manager, threatening him, standing over him, producing a piece of paper and a pen and forcing him to write out the letter of resignation.

[9] Consequently the determination of this case has involved an unusually black or white conclusion. The nature of the factual conflict regarding the different versions of what was alleged to have occurred at the termination event does not, unfortunately, permit some attribution or accommodation for natural human foibles such as those which might be associated with a faulty or even selective memory. Regrettably, the Commission has been presented with a scenario which, absent some physiological delusive condition, compels a finding that either Mr Lee or the applicant has provided untruthful, false and misleading evidence.

The Employer’s Evidence

[10] Mr Lee was one of the two managers present at the termination event. The other manager, a Mr Paul Horan, no longer worked for the employer and despite attempts made by the employer to have him provide evidence he was apparently “uncontactable” 1.

[11] Mr Lee swore an oath and confirmed the contents of a statement that he had made about the termination event. In summary, he flatly denied the version of the termination event as had been asserted by the applicant. Relevantly he stated, inter alia:

“The events that had taken place in the witness statement are factual, and in regards to Mr Holland's statement that's been tendered, it is the complete opposite to what's happened. What he's purportedly saying is that, you know, I forced him - or myself and the other manager, Paul Horan, forced him to resign is completely untrue and will be, sort of challenged directly. Like - what happened on that day is exactly what happened under the statement. I didn't hand him a pen and ask him to resign. I wouldn't do that. Mr Holland offered that resignation letter. It was folded up in his back pocket. At no point did I coerce or demand that he sign - the letter. Which I think is important that we draw the Commissioner's attention to the previous - which is now exhibit 3, which is the previous resignation letter, which adheres to the fact that Mr Holland did resign and that I - me or Mr Horan, did not force him to do so...” 2

[12] Despite the clear contradiction which arose between the evidence of Mr Lee and that of the applicant, Mr Lee was complimentary of the applicant’s work record. He said that the applicant was “...always a good employee. Never too much dramas....” 3.

[13] Mr Lee gave evidence in a calm and uncomplicated manner. He exhibited a fairly relaxed, respectful and considerate disposition. He provided direct, succinct and helpful answers and he did not seek to embellish his testimony. I observed his demeanour and other non-verbal behaviours both as a witness and at other times during the Hearing, to be consistent with a person who was respectful of the Commission and genuinely helpful to assist in the pursuit of the truth.

[14] As mentioned earlier, given that the fundamental contradiction in the evidence was manifestly blunt, I decided to advise both Mr Lee and the applicant of the provisions of section 678 of the Act and the potential penalties which apply if a witness gives false or misleading evidence to the Commission. The following response from Mr Lee to my questioning was given with conviction and demeanour consistent with that of a witness of truth:

“There's a section of Fair Work Act which deals with giving false and misleading evidence. It is section 678. It is an offence to give false and misleading evidence to this Commission. It is an offence which carries a penalty of 12 months' imprisonment. You've seen what Mr Holland says you did on 2 October. It hasn't been put to you and specifically and properly but, in effect, what has been put is that you threatened Mr Holland with repercussions if he did not resign, and you produced a piece of paper and a pen and you instructed him to write out what is the contents of exhibit 2. Did you do that?---No.” 4

[15] At the time of the Hearing I was strongly impressed by Mr Lee as a witness of truth and a person of honourable character. Following further consideration of all of the evidence and upon careful reflection, my initial impressions have been confirmed.

The Applicant’s Evidence

[16] The applicant gave evidence as a witness and he provided an affirmation to the Commission. The applicant attested to the truthfulness of a statement that he had made which became exhibit 4. The applicant commenced his testimony by providing confusing suggestions about the accuracy of paragraph 20 of his statement.

[17] The applicant presented as a nervous and excited witness and he gave contradictory and confusing answers to simple questions. The applicant gave overly loquacious answers to straight forward propositions. For example, when he was asked to explain how he went about writing the resignation letter (exhibit 2), the applicant gave a response that included 788 words and which occupied 51 lines of transcript. 5

[18] There were numerous aspects of the applicant’s evidence which were, upon even a cursory analysis, simply unbelievable. Perhaps the most notable example of unambiguously false evidence involved the applicant’s assertion that during the termination event Mr Lee grabbed a “scrip [sic] bit of paper” 6 from a waste bin and it was on this “ripped bit of paper”7 that the applicant was forced to write out his resignation. Unfortunately for the applicant his resignation letter which became exhibit 2, is a full size A4 sheet of paper with no rips or tears and it bears fold marks which indicate that it had at some time, been folded into quarters.

[19] When the applicant was presented with the manifest contradiction between what he repeatedly described, both in his statement and in his oral testimony, as a scrap of paper, and the full size undamaged A4 sheet which became exhibit 2, he provided entirely unconvincing evidence. In addition, the applicant provided no coherent or believable explanation for the existence of another letter of resignation 8 made as a diary entry and which the employer discovered when cleaning out his company motor vehicle after the termination event. The following extract from transcript provides an example of the unfortunately unpersuasive evidence given by the applicant:

“Can you provide any explanation for why the wording on the diary entry, which I'll show you again - why the wording is so similar to the wording of the letter that you were allegedly forced to write on 2 October?---I can't explain that. As I said, Mr Commissioner, I can't even recall writing that. I'm mean, if I was to do that, I would have done it honourably, and resigned honourably, you know, on that day. Yes, I don't - I suppose it is a coincidence. But as I said I can't recall the wording in that and if I did I would have - I wouldn't have been working there.

Does it surprise you to know that the original of the letter is not a scrap of paper, but a full sheet of paper? That's, in fact, written on the back of one the pages of employment document?---Yes. I don't know whether - they just got out of the bin, as I said - - -

Do you see what's on the other side of it? Do you remember reading that in your employment document, about the tools?---No, I've never seen that before. I don't need half that stuff, basin spanners and fenders, all that. I mean, that's not a list for me, that's a list for the sales guys - - -

Does that look like the piece of paper that was pulled out of the bin?---It may well be. I mean, at the time I was in shock. I wasn't thinking straight.

It doesn't appear to be torn. It doesn't appear to be a scrap of paper?---Well, that's not a (indistinct) it was rubbish, it's just scrap in the scrap - in the rubbish bin. And that's what was pulled out, yes.

**** MARTIN HUBERT HOLLAND XN

Do you see what I'm presented with there?---I certainly do, yes.

Are you telling the truth?---Yes, I am, Mr Commissioner. I wouldn't have gone to all this effort otherwise.” 9

[20] During the Hearing when the applicant gave evidence as a witness, the strong impression that I obtained was that he was not a truthful witness. Regrettably, I must record that following further consideration of the evidence and upon additional reflection, my earlier adverse assessment of the applicant is confirmed.

The Employer’s Submissions

[21] Mr Ferguson, the owner of the respondent business, said that the unfair dismissal application taken against his company was treated as a very serious matter particularly because it challenged the integrity of his management team. Mr Ferguson said that he had grown his business by doing things ethically and he was concerned about the very serious allegations which had been made regarding the termination event.

[22] Mr Ferguson suggested that the applicant had become unhappy at work and he was looking to obtain some form of redundancy or other payout as part of his departure from employment. Mr Ferguson said that he abided by the law and he was happy to give any employee who wished to leave his company every cent that they were entitled to.

[23] Mr Ferguson said that the evidence provided during the Hearing, even without the benefit of being able to call the other manager who was present at the termination event, satisfied him that his management team had done the right thing and he was confident and reassured in the trust that he had in his staff.

The Submissions Made on Behalf of the Applicant

[24] Mr Boghossian from Connect Legal made submissions on behalf of the applicant. Mr Boghossian commenced his submissions by saying that it was a difficult task to determine who was telling the truth and his role was to assist his client.

[25] Mr Boghossian said that the applicant was asked to resign and did not actually hand down a resignation letter. Strangely however, Mr Boghossian then submitted “...that the respondent willingly accepts” the resignation and “...that the applicant wasn’t given a chance to reconsider at all.” 10

[26] Mr Boghossian made further submissions which suggested that the applicant enjoyed work and that he “...came to work as such.” 11 The submissions made by Mr Boghossian returned to the criticism of the employer for accepting the resignation of the applicant with inappropriate haste, in this regard Mr Boghossian said:

“So we say that the events - we say that another striking is when the applicant tenders that resignation there is no time out given by the respondent's managers....

There is no time out given to the applicant to reconsider.” 12

[27] The submissions made by Mr Boghossian then touched upon the issue of credit in respect to the factual conflict that would be determinative of the matter. Mr Boghossian submitted:

“Who is telling the truth or not? That's a matter for your judgment not mine, I'm only trying to assist my client. But client in the witness stand was very forthright in his answers, quite expansive, he gave very coherent answers to the point on every issue did not transgress one bit from his statement.” 13

[28] In conclusion, Mr Boghossian said that he preferred the evidence of the applicant on numerous issues, especially events leading up to the termination event. Mr Boghossian urged that the Commission dismiss the employer’s jurisdictional objection and that the matter be referred to arbitration on the merits.

Consideration

[29] Section 385 of the Act stipulates that the Commission must be satisfied that 4 cumulative elements are met in order to establish an unfair dismissal. These elements are:

(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.

[30] In this case there was a jurisdictional objection raised in respect to that element contained in subsection 385 (a) of the Act, specifically whether the applicant was a person who had been dismissed. Section 386 of the Act prescribes a meaning for “dismissed”. Relevantly sub-section 386 (1) of the Act is in the following terms:

“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.”

[31] The question of whether or not a person has been dismissed from employment will usually involve mixed findings of fact and law. In this instance the applicant had completed a letter of resignation, the original of which became exhibit 2. However, a dramatic and diametrically opposite factual contest arose in respect to the circumstances which gave rise to exhibit 2.

[32] The applicant asserted that he had been forced to write exhibit 2 during the termination event of 2 October 2012. The employer contended that the resignation letter was prepared before the termination event and given freely by the applicant.

[33] I have carefully considered the directly conflicting evidence provided by Mr Lee and that provided by the applicant. As the evidence of each individual was given during the Hearing, I developed a clear preference in favour of the material given by Mr Lee as opposed to the applicant’s version. As explained above, this preference developed as a consequence of both the substance of the evidence given and the demeanour and other observed characteristics of the respective individuals. Upon further review and reflection, I confirm my unequivocal preference for the evidence of Mr Lee over that of the applicant.

[34] Regrettably, evidence such as that relating to the applicant’s assertion that exhibit 2 was a ripped piece of scrap paper taken from a waste bin upon which he was forced to write words which were strikingly similar to the words contained in exhibit 3, compels me to find that the applicant provided the Commission with deliberately false and misleading evidence.

[35] In my 16 years experience this case represents something of a nadir.

[36] It is highly regrettable and disappointing that the serious adverse findings that I have been compelled to make against a witness who gave false and misleading evidence in proceedings before this Commission should arise in respect to an applicant in an unfair dismissal claim. I have great sympathy for the employer who has clearly conducted his business with great emphasis upon acting with honesty and integrity at all times. An honest and decent employer has been challenged with a spurious unfair dismissal claim advanced with manifest mala fide. A claim of this nature operates to discredit the broader unfair dismissal regime and provides a perspective which potentially damages the position for all genuine and legitimate claimants. Realistically, not all employers operate with the same level of ethical integrity as displayed by the employer in this case.

[37] I cannot confine my criticism to the applicant. I am reluctant to make comment about the conduct of any representative who appears in proceedings. However Connect Legal conducted this case with a disconnect for the truth. The submissions made by Mr Boghossian which criticized the employer for accepting the resignation of the applicant with inappropriate haste, recognised the fallacy of the applicant’s invented story about being forced to write out exhibit 2. Mr Boghossian appeared to attempt to justify this contradiction with the suggestion that his role was to assist his client. This suggestion fails to recognise that particularly as a lawyer, Mr Boghossian also has legal and ethical obligations to the Commission. It is simply wrong and improper for anyone, let alone a lawyer, to advance a plainly untenable case which is based upon a falsehood.

Conclusion

[38] The determination of the jurisdictional objection raised in this matter has involved a contest about whether or not the applicant was a person dismissed from employment. An analysis of the evidence involving the direct conflict about the termination event has provided for a conclusion that the words and actions of the applicant and not the employer caused the employment to come to an end.

[39] Consequently the applicant was not a person dismissed from employment and the jurisdictional objection raised by the employer must be upheld. The application is dismissed as it is without jurisdictional foundation.

COMMISSIONER

Appearances:

Mr J. Boghossian, solicitor from Connect Legal, on behalf of the applicant.

Mr A. Ferguson on behalf of the employer.

Hearing details:

2013.

Sydney:

January, 25.

 1   Transcript of proceedings (25 January 2013) @ PN200 - PN210.

 2   Ibid @ PN134.

 3   Ibid @ PN140.

 4   Ibid @ PN525.

 5   Ibid @ PN622.

 6   Exhibit 4 @ paragraph 20.

 7   Transcript of proceedings (25 January 2013) @ PN686.

 8   Exhibit 3.

 9   Transcript of proceedings (25 January 2013) @ PN726 - PN732.

 10   Ibid @ PN772.

 11   Ibid @ PN783.

 12   Ibid @ PN816 and 817.

 13   Ibid @ PN829.

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