Mr Raymond Vipan v Drapers Smash Repair
[2012] FWA 3328
•26 APRIL 2012
[2012] FWA 3328 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Raymond Vipan
v
Drapers Smash Repair
(U2012/4592)
SENIOR DEPUTY PRESIDENT RICHARDS | BRISBANE, 26 APRIL 2012 |
Summary: alleged unfair dismissal- unauthorised leave – misrepresentation of purpose for leave - repudiation - ceased to render performance of contract - acceptance by employer.
[1] This is an application under s.394 of the Fair Work Act 2009 (“the Act”) in which Mr Raymond Nigel Vipan (“the Applicant”), sought an unfair dismissal remedy arising from the cessation of his employment relationship with Drapers Smash Repair (“the Respondent”). The owner of the Respondent is Mr Ronald Draper.
[2] The Respondent is a small business for the purposes of s.23 of the Act. The unchallenged evidence was that at the relevant time the Respondent employed only two employees. However, the circumstances of this matter, as set out below, render this fact unimportant.
[3] The Applicant had been an employee of the Respondent for some six years and five months, until such time as the employment relationship ceased on or about 19 January 2012.
[4] The Applicant’s written materials were limited. In those materials as they are, he contended that he fell into dispute with the Respondent in late 2011. At this time, it appears that the Applicant took umbrage at the Respondent's failure to advise him of the annual Christmas party until the day on which it was to be conducted, and the (alleged) fact that a cash bonus was withheld from him as a punishment for not attending the function. The Applicant also appears to have had difficulties in his relationship with Mr Draper's wife, who was employed at the workplace. The Applicant claimed Mrs Draper would not converse with him freely and often ignored him in a social context.
[5] But it was the events in the post Christmas period that were to become critical in the relationship between the Applicant and the Respondent.
[6] The Applicant contended that upon the resumption of work after the Christmas break he advised the Respondent (Mr Draper) of his wish to take annual leave between 10 February 2012 and 5 March 2012. The leave was partly a draw down on his accumulated leave and partly unpaid leave, on a 50:50 split. The reason the Applicant have Mr Draper for taking such leave was in order to attend to his sick mother who lived interstate.
[7] The Applicant claimed that Mr Draper’s response to this request placed his employment in jeopardy:
Okay. So you had that conversation on or about 10 January. What did Mr Draper say to you when you raised that with him?---I couldn't recall exactly what he said. He wasn't exactly happy with it. He said, "I'm going to have to start to look for someone else to work here because I can't afford to take - for you to take time off.
Well, can you just be a bit - can you just be a bit more detailed about the - what you're saying there? Mr Draper said precisely what to you? He wasn't happy with your request - - -?---For taking time off.
- - - for taking time off? That amount of time off presumably?---Exactly.
What did he say to you? What else did he say to you?---He just said he wasn't happy taking time off - with me taking the time off. So he was going to have to look for someone else to fill my position.
So you say you're going to have to look for someone - is that whilst you're away? He was going to look for someone to fill the position whilst you were away?---It seemed like he was going to look straightaway (indistinct) that's what it sounded like.
So are you saying that he was going to dismiss you and replace you with someone else, or was he just going to look for someone temporarily to do the work that you were required to do?---No, he was going to dismiss me. 1
[8] The Applicant’s evidence was that from that point onwards he was adamant that he would take the leave that he had booked, anticipated dismissal, and commenced looking for new employment.:
That's what you thought then and there?---Yes.
If you - that's if you just took that leave?---Yes.
Without his agreement?---Yes. I believe my job would (indistinct)
Sorry?---I believe my job would have been on the line then if I took those holidays.
What did you - how did you respond to that at the time?---Well, I had full intention of taking the holiday anyway, so I just went back to work.
Did it concern you though - if you had the full intention of taking the holiday, were you concerned that it could lead to your termination?---(indistinct)
Did you raise this issue again with Mr Draper?---No (indistinct)
So how in your mind was the matter ever going to be resolved? You'd had a conversation, you'd requested leave, he'd said, "No. If you do it your employment is in jeopardy." That's what you assumed he said. Then he went back to work. How were you going to (indistinct) going to - how were you going to deal with that issue?---Basically waiting to be terminated. I was looking for work straightaway. 2
[9] A further related incident compounded the difficulties in the relationship between Mr Draper and the Applicant. The Applicant claimed that about a week after he had advised Mr Draper of the duration of his annual leave, Mr Draper had advertised a position for a panel beater on the Internet. The Applicant confronted Mr Draper in relation to the Internet job advertisement. Mr Draper informed him, the Applicant says, that the position as advertised was not for Drapers Smash Repairs.
[10] Notwithstanding this, the Applicant remained of the belief that Mr Draper's alleged conduct (in threatening his employment and then advertising his job) had placed him in an untenable position.
[11] Given the deterioration in the relationships, the Applicant, out of a concern that he might be held responsible for any incidents or property loss or damage issues, returned his keys to the workshop to Mr Draper. He stated that he informed Mr Draper that he would not be quitting his job just because Mr Draper was making that job untenable for him. The Applicant argued that Mr Draper would have to dismiss him from his employment or else make him redundant.
[12] On 18 January 2012 the Applicant received correspondence from Mr Draper. The correspondence read as follows:
Nigel regarding your un agreed leave to go to Thailand from 10th February 5th March.
If you take this unapproved leave this will terminate your employment with us as you have no right to take leave that is not entitled or agreed to.
Also I need to know your intentions regarding your employment here as yesterday you packed up your tools and told me that you could not work here anymore and in the afternoon handed in your workshop keys, I took that as you were leaving yesterday but now you turn up for work today I would like to know where I stand and whether you are leaving now or staying until the 10th February, as far as I am aware to receive your entitlements you are required to give me four weeks notice. (sic)
[13] The Applicant states that on the morning of 20 January 2012 he found his work tools had been left out in the rain (or at least left outside in circumstances where it has “sprinkled” that morning) 3 and that he was told to leave. He claimed the value of these tools amounted to some $35,000. The Respondent challenged both the claims as to the value of the tools and the fact that they were left out in the rain, and this is discussed below.
[14] The Applicant states that later that day he received an email from Mr Draper indicating that he had resigned his employment and would receive no other monies other than his accrued entitlement to annual leave.
[15] I will make some further observations about the Applicant's evidence in the context of the following discussion of the Respondent’s claims. This will include further context for the correspondence of 18 January 2012, cited above.
[16] The Respondent - through Mr Draper - posed a denser factual matrix by far that that posed by the Applicant. Mr Draper contended that the Applicant had been “very grumpy” in the period prior to Christmas 2011 and he and his wife had come to understand it was best to leave him alone during those times. On the last day of work before Christmas, Mr Draper said the Applicant requested to go home early as there was no work to do. Mr Draper claims that he asked the Applicant to clean up until lunchtime as everyone was going around to his house for a barbecue and Christmas drinks after that.
[17] The Applicant insisted on going home as he had a headache. Mr Draper responded by saying he would have his wife drop off his Christmas card and a cash bonus later that day. According to Mr Draper, however, the Applicant merely stated in reply that he was a Buddhist and didn't believe in Christmas and walked away. Mr Draper states that thereafter his wife located the Applicant’s Christmas card and cash bonus and placed it on the counter where the Applicant was standing with another employee watching a You Tube video. But upon that activity ceasing the Applicant walked out of the office without saying a word to anyone, and did not take his Christmas card and bonus.
[18] According to Mr Draper, upon the resumption of work following the Christmas break, the Applicant informed him that he required leave for the purposes of visiting his sick mother in Western Australia. Mr Draper’s evidence was that owing to the reason for the leave requested he was equivocal about how to respond to the request for leave for such a long period of time (given that he only employs one panel beater - the Applicant - and one spray painter).
[19] Subsequently – on 17 January 2012 – Mr Draper was informed that the reason the Applicant had requested leave was for a reason other than which the Applicant had informed him. That is, the Applicant had been untruthful about the reasons why he sought the extended leave. The Applicant gave evidence himself that it was his sister who informed Mr Draper, when she visited the workplace (on 17 January 2012), of the actual purpose for which the leave was sought. That is, it was not for purposes of caring for his ailing mother in Western Australia at all, but for purposes of a holiday in Thailand with his friends.
[20] On that same day, 17 January 2012, the Applicant approached Mr Draper in relation to what he believed was an internet-based advertisement for a panel beater in Proserpine (to which I have made reference above). Mr Draper informed him that he needed somebody to perform the work over the period of the Applicant’s impending absence (as he had at other times when the Applicant was on leave) but other than holding that view he did not place any advertisement on the Internet.
[21] I mentioned at this point that the advertisement tendered by the Applicant does not disclose the identity of the employer. The position as advertised was for a permanent part-time position for a panel beating business in Proserpine. Both the Applicant and the Respondent agreed that there are two other panel beating businesses in Proserpine.
[22] Mr Draper, at the time of these exchanges about the Internet application, appears to have taken the opportunity to question the Applicant about the purpose of his leave and why he was not truthful with him. Mr Draper claimed that upon raising this issue with the Applicant he became very agitated and “stormed” off, saying that he would have to look for another job. Mr Draper claimed the Applicant backed his ute up to the shop and started loading his tools. Mr Draper claims that whilst the Applicant was doing so he commented to him that is this the way he wanted to finish up six years of working with the Respondent.
[23] The Applicant is said by Mr Draper to have replied with the words: “I had better go and get another job I can't stand to work with people that give me the shits every day.” (sic) 4
[24] Mr Draper says that he said in reply, “You need to calm down mate and look at what you doing to your life, you did not have to lie to me about your Mother.” 5 Mr Draper says the Applicant then said, “It doesn't matter what I say it is not your business where I go and I just need the time off.”6
[25] The Applicant is then said to have driven off only to come back sometime later declaring that Mr Draper had sacked him (a claim Mr Draper resisted), before leaving the workplace again.
[26] On the afternoon of 17 January 2012 Mr Draper claims the Applicant (seemingly after he had returned from lunch) appeared in the office and through the workshop keys on the counter and left without saying a word. At 3:49pm that same day Mr Draper claimed he received an SMS text message from the Applicant stating, “I will need my termination certificate tomorrow thank you” (sic). 7
[27] On 18 January 2012, the next day, the Applicant is said to have arrived in the workshop. Mr Draper asked him what he was doing there. The Applicant is said to have replied that he was staying at work until Mr Draper sacked him. The Applicant is said to have lit a cigarette only to be informed that you cannot smoke in the workshop. The Applicant then said, “Well sack me for smoking and besides there is no work so I will just sit here for three weeks till I go to Thailand sack me to sitting around”. (sic) 8 Mr Draper claims that he then asked rhetorically how he could dismiss the Applicant when the Applicant had informed him yesterday that he had finished up.
[28] The Applicant, according to Mr Draper, remained present in the workshop for a period of time, but before he left Mr Draper gave him correspondence explaining to him his employment situation as he understood it to be. That correspondence of 18 January 2012 is cited in full above.
[29] According to Mr Draper, the Applicant again returned to the workplace on 19 January 2012. This time the Applicant is said to have taken his stereo and more of his tools and placed them in his ute. The Applicant is said to have telephoned Mr Draper at 9:37 am from his car and said. “I am sick I am going home”. 9
[30] According to Mr Draper, the Applicant came into the workshop a further time on 20 January 2012 around 7:30 am and started yelling about his toolbox outside under the awning. The Applicant is alleged to have said that they were his tools and because they were left outside that means the Respondent had “sacked” him. He then requested a separation certificate.
[31] Mr Draper states that he explained to the Applicant that he had placed the remainder of these tools outside so that he (the Applicant) would not need to come into the workshop to collect them. He also stated that he would not give the Applicant a termination certificate as requested. At this stage, Mr Draper claims that the Applicant became very aggressive stating that he would not leave without his termination certificate. There then appears to have been an exchange between the Applicant and Mr Draper (according to Mr Draper that is) whereupon the Applicant was encouraged to leave the premises. It is then said the Applicant’s behaviour deteriorated further and that he began abusing Mr Draper and staff and began kicking stools over and throwing tools around the workshop.
[32] Mr Draper says that he ordered the staff out of the paint room and called the Police. The Police supervised Mr Draper's departure from the workplace.
[33] Mr Draper thereafter contacted Fair Work Australia and sought advice on notice arrangements in circumstances such as that which he now encountered. Regardless of this advice, Mr Draper states that he paid the Applicant for the final week of his employment even though he had only worked two full days of that week. The Applicant is said to have also been paid his accrued annual leave.
[34] It appears that on 25 January 2012 the Respondent issued an employment separation certificate for Centrelink purposes. The employment separation certificate indicates that the reason for the separation was the employee ceasing work voluntarily, which was supported by the claim that the Applicant had said, “I cannot stand working with people that give me the shits every day” and had proceeded to pack up his tools.
CONSIDERATION
[35] The Applicant’s written materials were devoid of any particularised chronology or discussion of key events between 10 January 2012 and 20 January 2012. But it was not this so much as the dramatic changes in the Applicant’s evidence over the course of the proceedings which causes me readily to prefer Mr Draper’s evidence over that of the Applicant.
[36] For example, in his expanded evidence-in-chief, the Applicant initially denied any interactions with Mr Draper ever took place on 17 January 2012. He maintained that for all intents and purposes that the 17 January 2012 was an ordinary day. He confirmed he had loaded some tools into his ute for a project he was working on privately, but other than that he simply drove out at around lunchtime as he might normally and returned to perform his afternoon duties in the conventional way. He also claimed that there were no substantive interactions between him and Mr Draper:
Is that 17 January?---It would have been, yes.
So you packed your small toolbox and stereo on the one day?---Yes.
You put those on the back of your ute, did you?---Yes.
Did you back your ute up to the workshop?---Yes, I did. Yes.
Did you say anything to Mr Draper about your desire to continue to work at the workplace? You didn't say anything?---No.
Sorry, I can't quite hear?---No, I just carried on as if tomorrow is another day.
So there was no exchange between you and Mr Draper at the time?---None at all.
No exchange whatsoever?---No. Not when I took my little toolbox, no.
Mr Draper you'll see gives - says there's quite a deal of exchange at that time. He says you said that you didn't want to work with people of a particular nature. Did you recall saying those things?---No. Not at all, your Honour.
So you say there was no conversation at the time between you and Mr Draper?
---No.
You simply left the workplace - - -?---To go and get my lunch, yes. It was around lunchtime at the time. 10
[37] But later in his evidence the Applicant conceded that there were indeed exchanges with Mr Draper leading up to the departure (which Mr Draper claimed to have been around 10.30am and not lunch time). The Applicant’s evidence in this regard is as follows:
THE SENIOR DEPUTY PRESIDENT: But in any event your evidence is that you maintain that you had no conversation about your job or - and you expressed no views about your work colleagues or- - - ?---No, not at all.
At that time. It was just you going off for lunch?---He asked me why I was taking some of my tools off. I told him that I had a job to do. That's where the conversation ended.
You must have been surprised when you received the letter of 18 January when he said, "You said you could not work (indistinct) any more." You say that was never ?---I didn't say I (indistinct) people are going to treat me bad, but I didn't actually - - -
Sorry. So - - - ?---There was no resigning in it. I said I (indistinct) it wasn't an actual resignment.
THE SENIOR DEPUTY PRESIDENT: Resignation. So what - sorry, you say when you had backed your ute up that day on 17 January there was a conversation about your willingness to work with other people there?---I don't know if it was that day or later on - if I said that on that day.
What do you recall saying at least. Putting aside the date, did you ever say that you don't want to work with the people here?---I have said that.
That you don't want to work with the people here?---That's right.
Do you remember when? About this time, or what it some other time the previous year, or years in the past, or was it about this time?---About that time.
It was around this time somewhere, but you can't remember where it was exactly - on what day?---No, I can't.
Do you recall the language that you used to describe the people in the workplace? Was it the language that Mr Draper says you used?---Yes, it would have been colourful, yes. 11
[38] The exchanges to which the Applicant now admitted appeared to have some emotional intensity in them. The Applicant concedes he used colourful language in describing his fellow workers. This also accords with the evidence of Mr Draper, and the evidence of Mr Zane Reid, the spray painter, who observed that the Applicant appeared “upset” at the time. It also accords with the evidence of Mr Lindsay Campbell who overhead the Applicant and Mr Draper “having words” that same day.
[39] The Applicant’s revised evidence - if I can so describe it – also accords with his correspondence to Mr Draper on 18 January 2012 in which he makes reference to “our discussions” that day, and had raised the subject of his employment status. I am at a loss to explain why the Applicant persisted in claiming initially that he had no exchanges of any kind with Mr Draper on 17 January 2012.
[40] Mr Draper’s evidence, by way of contrast, provided a much more consistent and coherent narrative, and was largely free of exaggeration.
[41] I qualify my view of Mr Draper’s evidence slightly as I was not satisfied that the Applicant threw tools around or kicked over multiple stools in the workplace, as he alleged. The Applicant appears to have kicked over one stool in anger, on which there had been a tray of tools. While there was aggressive use of language at this time, I would not take the Applicant's physical conduct any further than this. The Applicant's own evidence, along with that of Mr Reid’s evidence, as a third party observer of the relevant incident, leads me to this view.
[42] That said, the Applicant’s conduct as I have found to be between 17 January 2012 and thereafter was sufficient to demonstrate that he had repudiated his employment relationship with his employer.
[43] The facts are sufficient to show that the Applicant, by his conduct, ceased to render the required performance of his contract of employment to Mr Draper as his employer. It may be that the Applicant was disgruntled at not having his leave approved without question. But the Applicant can hardly complain that Mr Draper was the source of his problems in circumstances in which:
● the purpose of that leave had been flagrantly misrepresented to his employer;
● the request comprised a request for several weeks of unpaid leave; and
● the Applicant had pre-booked his leave without the approval of his employer; and
● remained adamant that he would access the leave regardless.
[44] It appears to me on the basis of the evidence that the Applicant had formed a mistaken view that as a consequence of his request for leave the Respondent had planned to replace him in his employment with a new employee. The tensions between the Applicant and the Respondent were exacerbated when it was disclosed on 17 January 2012 that the Applicant had misrepresented the reason for the request for annual leave and unpaid leave to his employer.
[45] The evidence further suggests that the Applicant, on 17 January 2012, affected by the incident as discussed above, had expressed an uncharitable view of his fellow employees and\or employer, took steps to remove his personal tools from the workplace, claimed he had better find a new job, requested his termination certificate and claimed that he had been “sacked”.
[46] The Applicant’s conduct from 18 January 2012 serves only to compound the conclusion that he was no longer capable of fulfilling the various obligations implicit in the employment relationship. In all, this period evinced conduct on the part of the Applicant that was inimical to the employment relationship. Even the Applicant's conduct in indicating that he intended to defy Mr Draper’s instruction that he not take unauthorised leave demonstrated the Applicant's unwillingness to obey a reasonable and lawful direction by his employer. This much is evident from the Applicant's reply to Mr Draper’s correspondence to him dated 18 January 2012:
You say in that letter in the last bullet point, "I will be on annual leave from 10 February 2012 to 12 March 2012 inclusive. This will be taken as part of my annual leave entitlement and I expect that I will be both paid for this entitlement leave and that my job will be available upon my return." Now, you have said that knowing, am I correct, that Mr Draper had not authorised that leave? Is that right?---Well, I was unsure, totally unsure, if I had my job back or - - -
Not so much whether you had your job back, I'll come to that in a second. But you said you were going to take that leave in your email of 18 January, even though Mr Draper had not authorised that leave. Is that correct?---That's correct.
That's correct. Okay. And that you knew at that time that if you did that your job might be in jeopardy?---Yes.
[47] There are difficulties in characterising the Applicant as having resigned his employment at any particular point in time (as Mr Draper claimed). The Applicant may have requested a certificate of termination, but he did so for reasons other than that he had resigned. On 17 January 2012, the Applicant had acted, it would appear, on the mistaken belief that Mr Draper had gone about seeking to replace him (by advertising on the internet) and that he had been dismissed in effect.
[48] Arguably, if the Applicant had reflected on the foundation of his claim in this regard and on the terms on which he had approached his employer for leave, the issues may have been capable of resolution on 18 January 2012, and the employment relationship could have stabilised.
[49] But this was not to be the case. The Applicant continued to evince a belligerent stance vis a vis his employer in the subsequent days. Given that the Applicant was committed to taking his pre-booked leave when Mr Draper had not authorised him to take leave (on a paid and unpaid basis), the Applicant was never likely to alter his course.
[50] In all, the Applicant's conduct demonstrated that he had repudiated his contract of employment. The employment relationship thus came to an end upon the acceptance of that repudiation (arguably at the earliest) by way of the Respondent’s conduct of leaving the Applicant’s tools outside the work area or else (at the latest) the issuance of the employment separation certificate on 25 January 2012 (by the Respondent).
[51] There is authority for this approach to repudiation. The Full Bench in Ms Tamicka Louise Dover-Ray v Real Insurance Pty Ltd 12 considered circumstances in which an employee’s conduct had evinced an unwillingness to continue in employment but did not constitute a resignation:
This case is properly analysed by reference to principles of repudiation. In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd 2Gleeson CJ, Gummow, Heydon and Crennan JJ noted:
“The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. … Secondly, it may refer to any breach of contract which justifies termination by the other party. … There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.
In the past, some judges have used the word "repudiation" to mean termination, applying it, not to the conduct of the party in default, but to the conduct of the party relying upon such default. It would be better if this were avoided.”
(footnotes omitted)
As is apparent from this extract, the test for intention is not a subjective one depending on the actual intention of the repudiating party. Intention is to be judged from what the other party reasonably infers from the actions or words of the party who is alleged to have repudiated the contract.
A repudiation of a contract does not automatically terminate that contract. Rather, the contract comes to an end only when the other party elects to accept such repudiation. Such acceptance may be by words or conduct. The learned authors of Macken’s Law of Employment note that acceptance of a repudiation may be easily inferred.
Viewed in their totality, the actions of the respondent evinced an unwillingness to continue the employment of the appellant amounting to a repudiation of her contract of employment, which repudiation was accepted by the appellant when she filed her application for relief against termination of employment. 13
(footnotes omitted)
[52] In my view, the circumstances before me now are to be analaysed against the same authority, that being Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd. The commentary by the Full Bench is apropos.
Conclusion
[53] In view of my findings set out above, I dismiss the application for an unfair remedy under s.394 of the Act as there was no termination on the employer’s initiative (for purposes of s.385(a) of the Act and s.386(1)(a) of the Act.
SENIOR DEPUTY PRESIDENT
Appearances:
Mr R. Vipan for himself
Mr R. Draper for himself
Hearing details:
2012.
Mackay District Courthouse.
12 April.
1 Transcript of proceedings, dated 12 April 2012 at PNS 79-84.
2 Transcript of proceedings, dated 12 April 2012 at PNS 82-92.
3 Transcript of proceedings, dated 12 April 2012 at PN 153.
4 Statement of Ronald Draper dated 12 February 2012 at PN 5.
5 Ibid at PN 5.
6 Ibid at PN 5.
7 Statement of Ronald Draper dated 12 February 2012 at PN 6.
8 Statement of Ronald Draper dated 12 February 2012 at PN 8.
9 Statement of Ronald Draper dated 12 February 2012 at PN 9.
10 Transcript of proceedings, dated 12 April 2012 at PNS 101-111.
11 Transcript of proceedings, dated 12 April 2012 at PNS 203-212.
12 [2010] FWAFB 2670 (Lawler VP, Richards SDP, Larkin C).
13 [2010] FWAFB 2670 at PNS 21-24.
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