Mr Norman Booshand v Sneaths Freightlines Pty Ltd T/A Sneaths Transport
[2011] FWA 1843
•29 MARCH 2011
[2011] FWA 1843 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Norman Booshand
v
Sneaths Freightlines Pty Ltd T/A Sneaths Transport
(U2010/1850)
SENIOR DEPUTY PRESIDENT HAMBERGER | SYDNEY, 29 MARCH 2011 |
Whether applicant was dismissed; whether resignation forced because of employer’s conduct.
[1] The applicant, Mr Norman Booshand, filed an application on 17 November 2010 seeking an unfair dismissal remedy. The applicant had signed a letter on 4 November 2010 notifying his employer Sneaths Transport (the respondent) of his resignation with effect from that day. An applicant can only be found to have been unfairly dismissed if, inter alia, he or she has been dismissed. Section 386 (1) (b) provides that a person who has resigned from his or her employment has been dismissed if he or she was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer. This decision is concerned with whether the respondent in this case had indeed forced Mr Booshand to resign.
[2] Hearings were conducted on 16 and 25 March 2011. The applicant represented himself and the respondent was represented by Mr Gotting of counsel. The applicant gave evidence on his own behalf. Three witnesses gave evidence on behalf of the respondent:
- Mr Michael Edwards (the respondent’s General Manager);
- Mr Matthew Hurring (the respondent’s National Operations Manager); and
- Mr Robert Wise (formerly Manager of the depot where the applicant was employed).
[3] There were a number of inconsistencies between the evidence presented by the applicant on his own behalf, and that of the three witnesses of the respondent. I will indicate at the outset that where there is a conflict, I have generally preferred the evidence of the respondent’s witnesses over that of the applicant. I have done so for a number of reasons. First all of the evidence of the respondent’s witnesses was mutually consistent. By contrast, the applicant failed to provide the evidence of any other person to corroborate his version of events. Secondly, the evidence of the respondent’s witnesses was consistent with a memorandum prepared by Mr Edwards shortly after the events in question and before Mr Booshand’s unfair dismissal application was made 1. Thirdly I found the version presented by the respondent’s witnesses in relation to a number of key events as inherently more plausible than the version presented by the applicant. Finally I found the demeanour of the respondent’s witnesses while presenting their evidence as more convincing than that of the applicant.
[4] The respondent is involved in the transportation of freight. The applicant was employed at a depot as a forklift driver to assist in the movement of that freight. Based on the evidence presented during the hearings I find that the following events occurred. On 29 October the operations clerk for the respondent advised Mr Hurring that a carton of freight had been damaged at the depot and appeared to be missing some of its contents 2. The respondent commenced an investigation into what had happened to the carton.
[5] On 3 November 2010 Mr Hurring and Mr Edwards spoke to the applicant about the tampered carton because he was the person who unloaded the trailer with the relevant carton. The applicant told them that he had unloaded the contents of the trailer onto a truck for delivery to a store in Liverpool. About 10 minutes after the truck had left another fork lift driver (known as ‘Munch’) noticed a carton left in the trailer. The applicant told them he thought the carton must have come loose and ended up at the rear of the trailer out of view. Munch had asked the applicant what to do with the carton and had been told to put it with the freight bound for Liverpool to go with the next load. At no point during this discussion was it suggested to the applicant that he was under any suspicion 3.
[6] On 4 November 2010 Mr Hurring, Mr Edwards and Mr Wise watched video footage of the events in the depot on 29 October 2010. Mr Edwards was concerned that there appeared to be some inconsistencies between the version of events as outlined by the applicant and the video footage. For example, the Liverpool bound truck was still next to the trailer when Munch got down from the trailer with the carton 4.
[7] A second interview was then conducted with the applicant later that day. The applicant was given an opportunity to change his story but declined to do so. When a number of apparent inconsistencies between his version of events and the video footage were put to him he was unable to provide an explanation. No mention was made during the interview of any possible repercussions for the applicant’s employment 5.
[8] An interview was then conducted with Munch. He was unable to provide an explanation for his conduct on the day in question. After about 15 or 20 minutes, Mr Edwards stood up and said words to the effect of:
“Well, I think we should give Norm (i.e. the applicant) the opportunity to resign.”
[9] At this point Munch took his keys out of his pocket and slid them over to Mr Wise and said:
“Well I might as well hand in my resignation as well.” 6
[10] Mr Hurring then went outside and spoke to the applicant. The conversation went along the following lines:
“What is going to happen to me - if I don’t resign will I be sacked?”
“That would be up to Mick (Mr Edwards).”
“But I can’t afford to lose this job - you have to believe me - I can’t lose this job.”
[11] At that point Mr Edwards told Mr Hurring that Munch had resigned. Mr Hurring then passed this on to the applicant who said words to the effect of:
“Fuck Munch, that doesn’t give me a choice, I’ll have to resign now too.” 7
[12] Consistent with my previous findings concerning the relative credibility of the applicant and the witnesses for the respondent, I do not accept the applicant’s contention that he was told by Mr Hurring during this conversation that if he did not resign he would be charged with theft.
[13] Mr Hurring said that he would accept the applicant’s resignation and walked with him over to the office to get a resignation letter typed up, which the applicant then signed 8.
[14] It may well be that if the applicant had not resigned, he would have eventually been dismissed by the respondent. However I am satisfied that the respondent had not yet reached a decision to terminate his employment. Clearly things were looking bad for the applicant. However giving him an opportunity to resign as the respondent did, in the circumstances of this case, was quite different from forcing him to resign. On the basis of the facts as I have found them, I am satisfied that the applicant’s resignation was voluntary and not forced. Accordingly, I dismiss his application for an unfair dismissal remedy.
SENIOR DEPUTY PRESIDENT
Appearances:
N. Booshand, for the applicant.
A. Gotting, of Counsel, for the respondent.
Hearing details:
2011.
Sydney.
17 and 25 March.
1 Attached to Exhibit S3
2 Exhibit S4, paragraph 2
3 Exhibit S3, paragraphs 5 to 18, Exhibit S4, paragraphs 16 to 24
4 Exhibit S3, paragraphs 19 to 31, Exhibit S4, paragraphs 25 to 33
5 Exhibit S3, paragraphs 32 to 40, Exhibit S4, paragraphs 34 to 45
6 Exhibit S5, paragraphs 21 to 48, Exhibit S4, paragraphs 46 to 57
7 Exhibit S4, paragraph S4 paragraphs 58 to 61
8 Exhibit S4, paragraph 62
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