Mr Rogan Coyles v Velix Pty Ltd
[2012] FWA 7941
•13 SEPTEMBER 2012
[2012] FWA 7941 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Rogan Coyles
v
Velix Pty Ltd
(U2012/611)
COMMISSIONER ROE | MELBOURNE, 13 SEPTEMBER 2012 |
Application for unfair dismissal remedy - jurisdiction - resignation.
Introduction
[1] This matter concerns an unfair dismissal remedy application made by Mr Rogan Coyles (the Applicant) on 23 March 2012. The application was made against Velix Pty Ltd (Velix or the Respondent).
[2] The Applicant was employed as a site supervisor for Velix. The Applicant commenced employment with Velix on 29 September 2008. He was engaged as a trades assistant. He was promoted to the role of site supervisor in October 2011. From that time he was working at the Atwell Secondary College in WA. Velix contend that during the period from September 2008 to October 2011 the Applicant was engaged as a casual employee. It is not in contention that after October 2011 the Applicant was engaged on an ongoing basis and that the Respondent is not a small business. It is therefore not in contention that the Applicant is protected from unfair dismissal. However, the Respondent argues that the Applicant resigned and was not terminated at the initiative of the employer. It is not in contention that the resignation or termination took place on 9 March 2012 and that it took effect from that date.
[3] The Fair Work Act 2009 (Cth) (FW Act) provides that a person who has been dismissed may apply to Fair Work Australia (FWA) for an order granting a remedy for unfair dismissal. 1
[4] Section 386(1) of the FW Act provides that 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.”
[5] The Respondent argues that the Applicant was not dismissed and, as a result, he was unable to make his application for an unfair dismissal remedy and his application should be dismissed.
[6] In the circumstances of this case it is appropriate to first determine whether or not the Applicant was dismissed.
Relevant evidence and facts in respect to dismissal or termination.
[7] Prior to the commencement of the hearing both parties filed in FWA and served on the other party an outline of their submissions and witness statements. These dealt with both the issue of whether or not there was a dismissal and also with the merits of the case.
[8] The Applicant was responsible to ensure that metal fabrication orders from the Respondent’s factory in Melbourne were organised to fit the work requirements on site and to ensure an effective process of installation occurred.
[9] Monday 5 March 2012 was the Labour Day public holiday in WA and the Applicant was requested to work on that day. Monday 12 March was the Labour Day public holiday in Victoria. The Applicant was working for Velix in Victoria prior to commencing the job as site supervisor in WA.
[10] Ms Allen says that there was an agreement between the Applicant and Velix that the Applicant could take the Labour Day holiday at a different time. “It was agreed that he could but just give us notice as to when he wished to use it.” 2 The Applicant says that there was no such discussion.
[11] Due to lack of materials the Applicant only worked half the day. He was not paid penalty rates. It is not in contention that under the Agreement he was entitled to a substitute day. It is not suggested that there was any discussion between the Applicant and management of the Respondent about when the time off would be given.
[12] On Thursday 8 March 2012 the Applicant booked a flight to Melbourne and a ticket to a festival in Melbourne. The flight was to leave at 1.40pm on Friday 9 March and return on the evening of 12 March 2012.
[13] At around 8am Perth time on 9 March 2012 there was a telephone conversation between the Applicant and Ms Allen in Victoria. The Applicant says that there was a conversation shortly before that with Ms Morris. Ms Allen says that there were two conversations with her. However, it is not in contention that in the conversation(s) with Ms Allen the Applicant requested the day off on Monday 12 March 2012 so that he could return to Melbourne. The Applicant advised that he had booked a ticket but did not advise that he was flying out before normal finishing time that day. Ms Allen explained that there was pressure to complete the work and that it would not be possible to have the day off. Ms Allen agreed to discuss the Applicant’s concerns further with management. Ms Allen and the Applicant agreed that the Applicant stated that he should have the day off because it was a public holiday in Victoria.
[14] In evidence before FWA the Applicant confirmed that the flight he had booked on Thursday 8 March was leaving Perth at 1.40pm on Friday 9 March. The Applicant confirmed that his normal working hours were until approximately 2.30pm and that he had not sought approval to leave early on the Friday and when he sought approval to have Monday 12 March off in his initial conversation with Ms Allen he did not mention that he was leaving work early. The Applicant said that he thought that he did not need approval to leave early given that he would make appropriate arrangements for necessary work to be done at the site.
[15] At around 9.15am Perth time there was a telephone conversation between the Applicant and Mr Kumschick. Ms Allen and Mr Mahler were also present with Mr Kumschick. There was some difference between the evidence of Ms Allen and Mr Kumschick as to when the call occurred but Ms Allen was clearer about this matter and I prefer her evidence.
[16] Mr Kumschick confirmed that it was not possible for the Applicant to have the day off due to the requirement to get works done on the site and because of lack of notice. Mr Kumschick gave evidence that he was aware that a delivery of materials was due on Monday 12 March 2012 but he did not specifically raise that in the conversation. The Applicant confirmed that he knew that material was coming in but that he had made appropriate arrangements for others to handle it. The Applicant agrees that Mr Kumschick made it clear that the company was busy and needed him to work.
[17] The Applicant was upset and explained the inconvenience this would cause. The Applicant says that he said that he would be “better off returning to Melbourne” if he couldn’t have public holidays. 3 Mr Kumschick says that the Applicant said that he will be going back to Melbourne to find another job and finished with the words “I resign”. Mr Kumschick then says he asked how much notice was being given and the Applicant then hung up.4
[18] The Applicant accepts that he became angry and frustrated and says that he ended the conversation abruptly by advising those present that he would call back when he had calmed down. He then told others at work that he was leaving the site for the day and was contactable by mobile phone if required.
[19] Ms Allen says that “Rogan advise (sic) that he was resigning; Michael then asked Rogan how much notice he was going to give us and with this he hung up.” 5 In cross examination Ms Allen said that the Applicant said “I quit” not “I resign” but she was not sure about which was said when pressed. Ms Allen says that the Applicant rang her back about 45 minutes later and she “advised him to settle down as he might regret his actions”. Ms Allen also says that 30 minutes later she received an email from the Applicant that he would meet with management on Tuesday 13 March 2012 to discuss the matter. I accept this evidence.
[20] The same day, Friday 9 March 2012 at 10.07 am Perth time, Mr Kumschick sent an email to the Applicant stating:
“As per your phone call from earlier today to myself and in presence of Hermann and Sandra at head office, HM Metal craft accepts your immediate resignation. We have also noticed that you have left site without informing management which is disappointing and destructive to progress on site. Please return any tools/equipment that belong to the company (if any) to the head office in Melbourne within the next week.” 6
[21] On Friday 9 March 2012 at 4.42 pm Perth time the Applicant sent an email in reply to Mr Kumschick. The Applicant said that he did not receive Mr Kumschick’s email until later in the day on which it was sent. In part the email in reply said:
“You and I both know that I never offered you my resignation, but you on the other hand, have committed Hermann’s company, in writing, to my immediate termination... So unless you now wish to commit Hermann’s company to some potentially costly legal proceedings and reputational risk in the market, I suggest you pull your head in and we can discuss this at length on Tuesday after the long weekend.” 7
The Applicant also denied that he had left the site without informing management and explained that he had spoken to a local manager in Perth.
[22] On Friday 9 March 2012 at 4.42 pm Perth time Mr Mahler immediately responded to the Applicant. In part that email said:
“You have been on speaker phone when you resigned!... We have accepted your resignation. Additionally you hang up the phone on us without giving us the opportunity to talk you (sic) resignation through. As we heard later you left work straight after the call unauthorised by us. You have resigned, and we have accepted!” 8
[23] The Applicant did not return to Perth on Monday as planned. He did attend the festival in Melbourne.
[24] On Tuesday 13 March 2012 Mr Kumschick emailed the Applicant:
“We would like you to come to head office in Worri Yallock tomorrow 14/3/12 9.30 am to finalise the below stated matter. Hermann, Sandra and myself will be present. Could you please confirm by return email.” 9
[25] The Applicant advised he was ill and unable to attend the meeting on 14 March 2012. Mr Kumchick responded that “Sad to hear of your illness. Please keep us posted and advise of revised meeting time.” The Applicant proposed a new meeting time for 16 March in Melbourne city. Mr Kumschick said that the meeting time and place was not suitable and set a new time for 19 March at the office in Woori Yallock which is quite some distance from Melbourne. This was not acceptable to the Applicant and his representative. The meeting never took place.
[26] There were some inconsistencies between the evidence of Ms Allen and Mr Kumschick. The evidence of Ms Allen and the Applicant were generally more consistent on these points of conflict. For example Ms Allen and the Applicant agreed that it was clear the Applicant was angry and upset during the conference call. Generally where the evidence is in conflict I prefer the evidence of Ms Allen to that of Mr Kumschick.
Conclusions in respect to resignation or termination at the initiative of the employer
[27] The enterprise agreement, HM Metalcraft Enterprise Agreement 2011, provides that an employee is entitled to a public holiday in the place where the employee is based for work (Clause 17.5) There is therefore no basis for the Applicant to claim a right to a Victorian public holiday. The Agreement does provide for substitute public holiday by agreement between the employer and the employee. There is no doubt that the employer did not agree to 12 March 2012 as the substitute public holiday.
[28] The Applicant asserted that his call on the Friday to head office concerning him taking the day off on Monday 12 March 2012 was just a courtesy call because it was understood he was entitled to the Victorian public holidays. In the period the Applicant had been in Perth there were only two earlier public holidays which were not consistent with the WA public holidays, Queens Birthday and Melbourne Cup Day in Melbourne and Queens Birthday and Foundation Day in Perth. There was no evidence that the Applicant had been granted the Melbourne Queens Birthday and Melbourne Cup Day as public holidays. Even if the Applicant had been granted those days off in the absence of any evidence of an agreement about Victorian public holidays applying in lieu of Western Australian public holidays the time period involved is not sufficient to establish an agreement which overrides the Agreement.
[29] Having considered all of the evidence I do not accept that the Applicant was entitled to leave work early on Friday 9 March without seeking approval from his managers in Melbourne. The evidence shows that there was no requirement to fill in a leave form for RDOs or for public holidays however this does not suggest an entitlement to take a substitute public holiday or other time off without approval.
[30] The Applicant submits that if the Applicant did resign he did so in the heat of the moment and after only a few hours confirmed that he had not resigned. Alternatively the Applicant submits the conduct of the Respondent resulted directly or consequentially in the termination of employment, that is, it was a constructive dismissal. The Applicant argues that the actions of the Respondent in accepting the resignation after less than 45 minutes was also action taken in haste which did not provide the Applicant a proper opportunity to calm down and reconsider.
[31] The Respondent submits that if the Applicant had sincerely withdrawn his resignation then he would have attended work on 12 March 2012. The Applicant by not attending work on 12 March 2012 as directed showed that he did not intend to return to work consistent with an ongoing employment relationship being in place. The failure of the Applicant to attend the meeting on 19 March 2012 to discuss the situation, even though the location may not have been convenient, further suggests that the resignation was not sincerely withdrawn. In other words the Applicant did not use every available avenue to assert the continuing employment relationship.
[32] I do not accept that the circumstances of this case can be described as a constructive dismissal. The actions of the employer did not force a resignation. The employer refused to allow the Applicant time off on 12 March 2012. The Applicant was upset about this but it could not be said that the actions of the employer were a repudiation of the employment contract or in any way forced the worker to resign. The worker had three choices: accept the direction of the employer and abandon the trip to Melbourne and attend work on 12 March 2012; or refuse the direction of the employer and return to work on 13 March 2012 knowing that there might be disciplinary consequences; or resign from employment.
[33] I accept that the evidence is clear that if the Applicant did resign he withdrew that resignation only a few hours later by clearly advising the employer in writing that he had not resigned. It is not unreasonable in such a circumstance for the Applicant to assert that he had not resigned but had been terminated. I regard the email from the Applicant 10 as a prompt action to withdraw the resignation if the resignation occurred.
[34] The Applicant made it clear that he was prepared to discuss the matter further after the long weekend. The employer agreed to entertain further discussion. There were some difficulties arranging the discussion but in the end the Applicant did not persist with it.
[35] In the circumstances of this case if there was evidence that the Applicant had, within a few hours of the telephone conversation offered to return to work on Monday 12 March, then I would have concluded that he had not resigned and if the employer then refused to let the Applicant return to work I would have concluded that it had been an unfair dismissal. However, this did not happen.
[36] In the circumstances of this case I conclude that the Applicant did say something which gave the Respondent the impression that he was resigning. The statement that he would be better off returning to Melbourne could easily be understood in this manner. Both Ms Allen and Mr Kumschick say that the Applicant said “I resign” or “I quit”. Given Ms Allen’s uncertainty about which word was used and the Applicant’s denial he used either word, I am satisfied that there is some doubt as to the exact words used. However, I am satisfied that it was reasonable for the Respondent to conclude that the Applicant was resigning. I found Ms Allen to be a convincing witness. I am satisfied that the Applicant did say something more than that he would be better off returning to Melbourne and said words which clearly communicated that it was not his intention to return to work. It is quite possible that the Applicant was so upset that he sincerely did not recall what he communicated at the time. There is no doubt that the actions and words of the Applicant were in the heat of the moment. However, I am satisfied that they did constitute a resignation which the employer reasonably understood was not ambiguous.
[37] The Applicant as soon as was practical made it very clear in writing that he had not intended to resign. It was however written in a manner which is not consistent with a desire to restore and continue the employment relationship. The email criticised the chief executive of the company by reference to his nationality. The email also stated: “I suggest you pull your head in and we can discuss this at length on Tuesday after the long weekend.” I am satisfied that in context these words are a demand that the employer withdraw their insistence that the Applicant attend work on Monday 12 March and that the employer approve the day off, hence the reference to discussions on Tuesday. The words are also an insistence that the employer accept the withdrawal of any resignation they understood to have occurred. If it were not for the first element I would have no doubt that any resignation had been withdrawn in a timely manner and would have concluded that the Applicant had been dismissed at the initiative of the employer. However, the tone of the email and its clear continued refusal to consider acceptance of the employer’s instruction that the Applicant work on Monday 12 March suggests that there was no sincere withdrawal of the resignation. The Applicant was in no doubt about the reasonable instructions of the employer that he attend work on Monday 12 March. The immediate response by email from Mr Mahler certainly suggests that the Respondent did not interpret the Applicant’s email as a sincere withdrawal and I think with good reason.
[38] I therefore consider that the Applicant resigned and was not dismissed at the initiative of the employer.
[39] However, I accept that there is some doubt about this matter for two reasons. Firstly, because the telephone conversation was very much in the heat of the moment and therefore it is quite possible that the Applicant did not mean to resign, and secondly, because the Applicant did in a timely fashion seek to withdraw the resignation. Therefore I consider it appropriate that I consider whether or not the termination would have been unfair in the event that I am wrong and the Applicant was dismissed at the initiative of the employer.
Was the dismissal unfair.
[40] If the Applicant was dismissed then I am satisfied that the Applicant was terminated for refusal to obey an instruction to attend for work on 12 March 2012. I am satisfied that the instruction of the employer was a reasonable instruction. The evidence of the work requirements on 12 March 2012 was documented, clear and convincing. I am satisfied that the work requirements were also apparent to the Applicant. Furthermore there is no evidence of an entitlement to Victorian public holidays and the Agreement explicitly provides that the WA holidays apply to the Applicant.
[41] The Applicant did not provide reasonable notice in any case. A request on Friday morning for the day off on Monday is, in the absence of any compelling reason, very short notice. The evidence clearly establishes that the Applicant was not incapable of working and there was no pressing family or personal reason why the time off was required. The Applicant gave evidence that he wanted to get back to Melbourne to be with friends which I accept as a legitimate reason for the request for the time off but not at such short notice.
[42] The evidence establishes that the Applicant refused to attend work when clearly instructed to do so. The Applicant was in a responsible supervisory position and I accept the evidence of the Respondent that his absence could significantly affect the work efficiency of the other workers and therefore the progress on a time sensitive project.
[43] The email response of the Applicant to the “acceptance of his resignation” was intemperate and insulting. The statement “I suggest you pull your head in and we can discuss this at length on Tuesday after the long weekend” unequivocally reaffirmed the Applicant’s intention to not return to work on Monday 12 March 2012 as directed. In a real sense by doing this the Applicant was asserting that he had not resigned but he was in practice acknowledging that his termination would proceed in that the employer had made it clear that they were not compromising on the requirement to work on Monday.
[44] In this context the immediate response of Mr Mahler confirming that the resignation had been accepted was understandable.
[45] The evidence clearly establishes that the Applicant repeatedly maintained the refusal to adjust his long weekend plans knowing that his employment would be terminated should he not change his position. The Applicant had opportunities to change his position but he failed to take those opportunities both before and after 12 March 2012.
[46] Although the employer made it clear that the Applicant’s employment had been terminated, the employer was open to further discussions and made some efforts to set up those discussions. It is not clear where those discussions might have led but the failure of the Applicant to follow through on those discussions is further evidence that the Applicant made inadequate effort to restore the employment relationship.
[47] I understand that the Applicant was upset given that he had expended considerable resources on buying the airline ticket to Melbourne and the festival tickets but I could find nothing to support the assumption made by the Applicant that he was entitled to assume that he could have Monday 12 June 2012 off work and could therefore make the arrangements before consulting the employer. There was no obvious reason as to why the Applicant could not have raised the matter with the employer before making the bookings.
[48] In the particular circumstances of this case the failure to obey an instruction to attend for work on 12 March 2012 was a valid reason for dismissal which was related to the conduct of the Applicant.
[49] The Applicant was clearly informed of the reasons for the termination of the employment relationship.
[50] The Applicant was given an opportunity to explain why he wanted to take 12 March 2012 off work and why it was inconvenient to him to change these arrangements. The Respondent considered those reasons and rejected them.
[51] The circumstances meant that the conversations were not held at times chosen by the employer and were conducted by telephone and email. This made it difficult for the employer to provide the opportunity for a support person to be present. In the circumstances I do not consider that there was an unreasonable refusal by the employer to allow a support person to be present. The Applicant did not request that a support person be present.
[52] There is no suggestion that the performance of the Applicant was unsatisfactory. The termination was for misconduct. The absence of warning is not relevant.
[53] The employer is not a small business employer and the size of the employer and the absence of human resources expertise did not have an impact on the procedures followed in the termination of employment.
[54] The length of employment was neither short nor long.
[55] In the normal circumstances a refusal to obey an instruction to work on a particular day should not lead to disciplinary action until after the employee is given an opportunity to consider the position. That is the action should not be taken until after the employee has actually failed to attend for work. However, in the circumstances of this case the Applicant himself made it very clear that there was no chance of any other outcome and did not in any way seek to revisit the situation over the weekend. Also I consider that the actions of the Applicant in refusing to attend work on a single day and leaving work without authority another day would arguably warrant dismissal with notice rather than summary dismissal. However, in the circumstances of this case I have found that the Respondent reasonably believed that the Applicant had resigned. The Applicant clarified that he had not intended to resign and withdrew any resignation that did exist. However, the Applicant at the same time made it abundantly clear that he was persisting with his refusal to obey a reasonable instruction to attend work on Monday 12 March 2012. By this time the Applicant had had some time to reflect on the situation which had been the subject of a number of discussions throughout the day. In all of the circumstances summary termination may be justified. The actions of the Applicant were in the particular circumstances of this case inconsistent with the continuation of the contract of employment.
[56] Taking all of the factors into consideration the termination of the employment was not unfair.
Conclusion
[57] I have found that the Applicant resigned and was not dismissed at the initiative of the employer. In the event that I am wrong about this I have concluded that the termination of employment was not unfair. An order will be issued dismissing the Application.
COMMISSIONER
Appearances:
Mr Jenshel appeared for the Applicant.
Mr Harrington appeared for the Respondent.
Hearing details:
2012
Melbourne
September 7
1 Fair Work Act 2009 (Cth) s.394(1).
2 Exhibit V8.
3 Exhibit C1.
4 Exhibit V7.
5 Exhibit V8.
6 Exhibit C1, Attachment RC1.
7 Exhibit C1, Attachment RC2.
8 Exhibit C1, Attachment RC3.
9 Exhibit V5.
10 Exhibit C1, Attachment RC2.
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