Mr Robert Onnis v The Trustee for the Honeycombes Used Cars Cairns Unit Trust T/A Motoco Group Cairns

[2015] FWC 5057

[2015] FWC 5057

FAIR WORK COMMISSION

DECISION

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

Mr Robert Onnis
v
The Trustee for the Honeycombes Used Cars Cairns Unit Trust T/A Motoco Group Cairns
(U2015/1353)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 28 JULY 2015

Summary: whether applicant protected from unfair dismissal - whether applicant resigned his employment voluntarily or was forced to do so because of employer’s conduct in potential restructure - subjective response to circumstances - employee acted on own initiative precipitously.

[1] This decision concerns an application by Mr Robert Onnis under s.394 of the Fair Work Act 2009 (“the Act”), through which Mr Onnis seeks an unfair dismissal remedy in relation to his alleged constructive dismissal by his employer, the Trustee for the Honeycombes Used Cars Cairns Unit Trust T/A Motoco Group Cairns (“the employer”).

[2] Mr Onnis performed the role as Foreman Technician in his employer’s Audi Centre in Cairns from September 2012 until 5 March 2015, whereupon he tendered his resignation for reason that he states he discovered his employer was seeking to replace him in his foreman role, and had advertised his position (on SEEK.com) with that intention.

[3] Mr Onnis argues that:

“[...] I believe that continuing to work with them [the employer] may have been seen that I was accepting their planned replacement of me as Audi Foreman, forcing me to resign.”

[4] He further contended that:

“It is my argument that Mr Alan Baxter [the dealer principal] intended to bring the employment relationship to an end by advertising the position [...] That if [Mr Baxter] had not placed the ad and forced me to resign I would have remained in the employment relationship.”

[5] Mr Onnis’s resignation read as follows:

“5th March 2015

Audi Centre Cairns

I hereby terminate my employment with Audi Centre Cairns and Motoco Group as Audi Foreman giving two weeks notice effective as of 5th March 2015 as per the National Employment Standards.” (sic)

Background

[6] On Wednesday 4 March 2015, Mr Onnis became aware of an advertisement placed on Seek.com for a Foreman Technician at the Audi Centre Cairns. Mr Onnis argued that the position as advertised was described in the same terms as his position and that therefore it “described my current role as Foreman.”

[7] On Thursday 5 March 2015, Mr Onnis approached Mr Mick Tringale, his manager.

[8] Mr Onnis bought the ad to Mr Tringale’s attention and Mr Tringale explained, Mr Onnis says, that the intention of the advertisement was to find a person to replace Mr Onnis as Foreman. Mr Onnis says Mr Tringale stated that the employer was looking for a “better class of mechanic.”

[9] Once Mr Tringale had confirmed this intention to Mr Onnis, Mr Onnis took out and handed over his letter of resignation (given on the basis of two weeks’ notice) directly to Mr Tringale.

[10] On Friday 6 March 2015, Mr Alan Baxter, the dealer principal, invited Mr Onnis to a meeting.

[11] According to Mr Onnis, Mr Baxter stated that “in hindsight [I] probably should have discussed the advertising of the position but thought it might cast some doubt in your [Mr Onnis’s] mind and decided against it.”

[12] Mr Baxter was said to have explained that once the employer identified a suitable candidate that he (Mr Onnis) would cease to be a Foreman. Mr Onnis also stated that though Mr Baxter advised he would lose his position as Foreman, his “employment was secure.”

[13] Mr Baxter was said by Mr Onnis to have provided an opportunity for Mr Onnis to reconsider his resignation over the forthcoming weekend and that he (Mr Baxter) would follow the matter up with him on Monday 9 March 2015.

[14] On Monday 9 March 2015 Mr Onnis met with Mr Baxter and explained that he “hadn’t changed [his] mind and that [he] would be working out [his] notice period.”

[15] Mr Onnis complained through his evidence that:

“I had a close working relationship with the business and my managers, and believe that there was a mutual trust and respect and that together we would act in the best interests of each other. Finding the ad for my position was a betrayal of that trust and showed no respect toward me as an employee. How could I work with people, who had betrayed me, knowing they had instigated a plan to constructively remove me from my position?”

[16] Mr Onnis continued:

“I was humiliated and embarrassed working out my notice period. I lost confidence that the business or my manager would have supported me in fulfilling my role. When I spoke to Alan he compounded the betrayal. I was forced to resign as I could not continue to work for Motoco under these conditions.”

[17] Generally, Mr Onnis explained his circumstances as follows:

“I maintain that the actions by Alan (Baxter) and Mick (Tringale) led me to feel that I had no choice other than to resign on Thursday 5th March 2015.”

[18] Mr Tringale came to dispute the evidence of Mr Onnis in relation to the conversation with him on 5 March 2015.

[19] Mr Tringale contended that on that day, Mr Onnis approached him about the position as advertised on Seek.com and asked him to confirm that the employer had placed the ad. Mr Tringale replied by confirming that the employer had placed the ad. Upon so communicating this to Mr Onnis, Mr Tringale said that Mr Onnis “then slide the envelope with his resignation letter inside and said that’s all I need to know.” (sic).

[20] Mr Tringale contended that he said, “Would you like to know why” to which Mr Onnis replied “no it don’t matter.” (sic)

[21] Mr Tringale explained that he then placed Mr Onnis’s resignation letter on Mr Baxter’s desk.

[22] It should be noted that the evidence of Mr Tringale (as set out above) was led as a statement filed on behalf of Mr Onnis (under the heading “Applicant’s Statement of Evidence - Witness Statement Number 3”).

[23] Mr Baxter contended that he met with Mr Onnis on Friday 6 March 2015 and tried to talk him out of resigning his position. Mr Baxter explained that he had placed an advertisement on Seek.com for an experienced Senior Technician but had not managed to obtain any suitable applicants. He went on to explain further that the advertisement had been recently altered to include “Foreman” in an effort to identify brand experienced quality applicants.

[24] Mr Baxter explained that should the right applicant become available he would look to restructure the current arrangements as the employer had two workshops on the same site. Mr Baxter contended that he had explained to Mr Onnis that the changes were hypothetical as no suitable applicant had emerged and it was also contingent on other developments as the employer’s plans may change. Mr Baxter maintains he used words to the following effect:

“Dependent on the applicants we receive we may make changes to improve the department and none of these would affect your present income, conditions or employment security.”

[25] Mr Baxter went on to state that it was necessary for the employer to consider change as the business was losing money, service customers and staff from the service department.

[26] Mr Baxter stated that he assured Mr Onnis that he had no reason to fear any future developments as his employment was secure in respect of his hourly rate and conditions; he would be in receipt of additional monthly bonuses; and that should the hypothetical circumstances come to pass he would have less daily stress than he did currently. Mr Baxter further submitted that he informed Mr Onnis that he didn’t want him to leave and that if he resigned his position he would be doing so for the wrong reasons.

[27] Mr Baxter also explained that in the course of the conversation on Friday 6 March 2015 Mr Onnis had thanked him (Mr Baxter) for providing him the full context of the advertisement and that Mr Onnis had agreed that he had overreacted in his conversation with Mr Tringale. This claim was also set out in Mr Baxter’s original materials in response to the application (and was denied by Mr Onnis).

[28] Mr Baxter - as confirmed by Mr Onnis - proceeded to give Mr Onnis the weekend to reconsider his circumstances and to withdraw his resignation.

[29] Mr Baxter confirmed the evidence of Mr Onnis that on Monday 9 March 2015 Mr Onnis approached him and indicated that he maintained his resignation and would not withdraw it. Mr Baxter also claims that Mr Onnis had mentioned to him that he had been thinking of changing jobs for some six months prior.

[30] I add that there were some other issues that have come between Mr Onnis and his employer over the course of his employment. Mr Onnis maintained in his evidence that he had never been warned in relation to any matters over the course of his employment. The employer, in its response, took a different view and cited a number of occasions in which Mr Onnis’s conduct had fallen into question (with some of these being supported by statements from co-workers and through other documentation).

[31] Another issue was on foot at the time Mr Onnis gave his resignation, and that involved a claim by the employer that Mr Onnis should pay the excess in relation to an insurance claim arising from damage for which he was responsible in relation to a customer’s vehicle.

[32] None of these circumstances appear on the evidence of Mr Onnis to have been factors that were relevant to his resignation or to the claim of constructive dismissal.

Legislative context

[33] Section 385 of the Act sets out that a person can only be unfairly dismissed if the Commission is satisfied that the person has been dismissed:

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.

[34] Section 386 of the Act sets out the definition of “dismissed” in the following (relevant) 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.

(2) However, a person has not been dismissed if:

[...]

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

[35] Here Mr Onnis contends, in effect, that he was forced to resign because he had no effective or real choice but to resign (Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200, 206).

[36] The facts as adduced must demonstrate that the employer engaged in a course of conduct (or in conduct) which forced Mr Onnis to resign his employment(Australian Hearing v Peary (2009) 185 IR 359, 367 at 30). That is, the action on the part of the employer must either be intended to bring Mr Onnis’s employment to an end or have had the probable result of bringing his employment to an end (O'Meara v Stanley Works Pty Ltd (2006) 58 AILR 100 at 23).

[37] In this case:

• The employer had taken no action to replace and had not replaced Mr Onnis in his role as a Foreman Technician at the time he resigned his position.



• Mr Onnis handed his resignation to Mr Tringale upon Mr Tringale having confirmed the existence of the advertisement (only) and Mr Onnis did so without making any further inquiries as to its context or its actual or immediate implications.



• The employer - through Mr Baxter - had indicated to Mr Onnis subsequently that it may take a course of action in the future that was conditional or contingent upon a successful recruitment exercise (or, as Mr Onnis put it, “once a successful applicant was found”).



• No person was recruited subsequently, other than a Technician who stepped into Mr Onnis’s position upon his resignation.



• The employer did not demote and had not acted to demote Mr Onnis on or prior to 5 March 2015.

[38] It may be the case that Mr Onnis responded subjectively to the circumstances and felt aggrieved because of the potential (only) for the employer to replace him as Foreman Technician in the context of a restructure, and to maintain his engagement on different terms (although with unchanged remuneration arrangements). But those events had not come to pass.

[39] Mr Onnis therefore resigned his employment at his own initiative. The employer by its conduct or course of conduct did not force Mr Onnis to resign his employment. The conduct of the employer on or prior to 5 March 2015 was not such that it had forced Mr Onnis to resign his employment.

[40] At all times, Mr Onnis had other options reasonably at hand other than to resign his employment. One of these options was to await developments and act in that context, at that time. Mr Baxter mentioned in this context that there may have been promotional opportunities and other options potentially at hand.

Conclusion

[41] On the evidence before me, Mr Onnis acted precipitously in effecting his voluntary resignation; he was not forced to do so and had other reasonable options at his disposal at the time. Mr Baxter afforded Mr Onnis an opportunity to withdraw his resignation but Mr Onnis chose not to rescind his decision of 5 March 2015.

[42] Mr Onnis’s subjective response to his circumstances (such as his sense of personal “betrayal” etc) does not meet the requisite tests.

[43] Mr Onnis, as a consequence, is not a person protected from unfair dismissal because he was not dismissed at the initiative of his employer (in the context of the legislative arrangements set out above).

[44] The application by Mr Onnis under s.394 of the Act must therefore be dismissed for want of jurisdiction (given the operation of s.385(a) of the Act).

SENIOR DEPUTY PRESIDENT

Appearances:

Mr R. Onnis, Applicant

Mr A. Baxter, of the Respondent

Hearing details:

By video

2015

23 July

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