Mr Stanislaw Gospos v Cibeka Pty Ltd T/A Resch Electronic Repairs

[2015] FWC 3336

[2015] FWC 3336

FAIR WORK COMMISSION

DECISION

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

Mr Stanislaw Gospos
v
Cibeka Pty Ltd T/A Resch Electronic Repairs
(U2015/2231)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 15 MAY 2015

Application for relief from unfair dismissal - dispute as to whether Applicant expressly stated his intention to resign - conflicting claims - long service leave not available when employee resigns - employer not obligated to rescind its acceptance of the Applicant's express resignation - mutual agreement necessary for rescinding resignation

[1] This decision concerns an application by Mr Stanislaw Gospos, who seeks an unfair dismissal remedy arising from his alleged dismissal on or about 24 December 2014 from his position as an electronics technician with Cibeka Pty Ltd T/A Resch Electronic Repairs (“the employer”).

[2] Mr Gospos claims that his employer mistakenly assumed that he wished to resign his employment at a given time, and proceeded to dismiss him (against his protests). The employer contends, however, that Mr Gospos expressly resigned his employment and at a subsequent date - after such time as it has accepted service of the resignation and accommodated his pending departure within the business - Mr Gospos changed his mind (without communicating this to his employer).

[3] Section 385 of the Act provides as follows:

 A person has been unfairly dismissedif FWA is satisfied that:

(a)  the person has been dismissed; and [...].

[4] Section 386 of the Act provides the definition of a dismissal in following terms:

Meaning of dismissed

(1)  A person has been dismissedif:

(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 employer therefore contends that Mr Gospos’ application is not jurisdictionally competent for reason he resigned his position and was not dismissed, for either the purposes of either s.386(1)(a) or s.386(1)(b) of the Act. It is to the determination of this claim that I must turn before I can consider the merits of the application under s.394 of the Act (notwithstanding the same facts are overlapping in either case).

Discussion of the witness evidence

[6] Mr Gospos claims that in early December 2014 he decided to contact Centrelink about his retirement options.

[7] He claims he was so prompted because of pending changes to the superannuation legislation.

[8] Mr Gospos claims further that on 5 December 2014 he advised his employer of his intention to consider his retirement options but that he would only confirm his intentions following obtaining further advice from Centrelink on 16 December 2014.

[9] Over the following two weeks, Mr Gospos claims that he discussed with his employer his access to his long service leave accrual.

[10] Mr Gospos stated that he was advised by Centrelink - at the time of the 16 December 2014 meeting - that he should transition to retirement by working two days a week, which would allow him time to accrue his full entitlement to long service leave.

[11] Mr Gospos went on to argue that he advised his employer on 16 December 2014 of the advice he had received from Centrelink and requested a letter from them agreeing to this new work arrangement - to revert from full-time work to performing work on two days per week only. Mr Gospos claimed that he needed this response from the employer promptly as it needed to be actioned before the end of the calendar year.

[12] The employer, Mr Gospos contended, interpreted his approaches in relation to these matters as constituting a resignation. Mr Gospos contended that at no point did he offer “any form of resignation”.

[13] On 17 December 2014, Mr Gospos explained that his employer conducted a meeting in the workplace, indicated that the business was under financial stress and that cost savings would need to be found, and that he (Mr Gospos) had offered his resignation. At that point Mr Gospos rebutted this claim and says that he indicated that he had “never offered [his] resignation.” Mr Gospos recollected that his employer did not respond to this counter claim.

[14] Mr Gospos went on leave on 23 December 2014, and received correspondence from his employer dated 24 December 2014 (which he received, he says, on 29 December 2014). That correspondence relevantly read as follows:

“Following statements to both Cindy and Marion in early December, to the effect that you would be resigning- and required all entitlements to be paid out before the end of the year, we made plans to restructure staff arrangements [...].”

“In the week before Christmas you then retracted your resignation to Marion, in front of both Geoff and Paul and stated that you wanted to continue to work full time as we couldn't promise you regular part-time hours.”

“As you then seemed to have doubts about your resignation, we contacted the Fair Work Ombudsman. We are always keen to ensure that we act in a way that is within the understanding of fair treatment. The Ombudsman's office advised that a verbal resignation was binding and could only be withdrawn by mutual agreement. [...].”

“Enclosed is a cheque to cover all your entitlements due [...] For the period of your employment.”

“As requested, at the time of your resignation, this payment has been made in time for you to maximize your Social Security benefits prior to the changes due to take place on January 1, 2015.”

“We trust this will enable you to maximize your future income and we wish you all the best in your future retirement.”

[15] Mr Gospos replied to the above correspondence on 9 January 2015. In that correspondence he relevantly stated as follows:

“I note your statement that I advised Cindy and Marion early December that I would be resigning, and that I later retracted this “resignation” a week before Christmas.

You will be aware that at no point in any conversation with you, Marion or Cindy did I ever offer my resignation. The point of any discussion with you was to explore the possibility of restricting my work arrangement to 2 days a week.

I cannot understand how you can have misunderstood my conversations with you other than as a deliberate misconstruction of my intentions.

In the circumstances I have decided to have this matter referred to the Fair Work Commission.”

[16] Mr Gospos held that his employer had “deliberately misconstrued [his] conversations [...] as a means of avoiding payment of [...] his long service, which would have accrued on 23/05/2015. Mr Gospos further contended that the reason his employer did not wish to pay him long service leave was because:

“It suited his stated objective of cutting costs by reducing working hours”.

[17] The employer's evidentiary case was based on five statutory declarations and the sworn evidence by: Ms Marion Ereaut; Ms Cindy Ereaut; Mr Daryl Ereaut; and Mr Paul Mitchelson and Mr Geoffrey Kinzett, an employee of the employer and a co-worker of Mr Gospos. Mr Ereaut and Ms Marion Ereaut the directors of the employer's business. Ms Cindy Ereaut is the manager of research for the employer, whilst Mr Mitchelson and Mr Kinzett are co-workers of Mr Gospos and perform duties as technicians for the employer.

[18] Ms Marion Ereaut gave evidence that on or about the last week of November or the first week of December 2014, Mr Gospos approached her and said words to the effect:

“Marion, because of changes to superannuation and pension eligibility coming into being on January 1, 2015, I want to finish up and I must have all my entitlements paid out for 31.12.14 so I can apply to get the pension and health card.”

[19] Ms Ereaut acknowledged Mr Gospos’ request and indicated that she would respond to him. Ms Ereaut also set about a few days later to ascertain Mr Gospos’ accruals, including his entitlements to long service leave.

[20] Mr Daryl Ereaut and Mr Mitchelson both indicated in their evidence that Ms Marion Ereaut had communicated the same information about Mr Gospos’ intentions to him around the same time.

[21] Ms Cindy Ereaut claimed that in late November or early December 2014, Mr Gospos approached her and said words to the effect of:

“I am resigning due to changes in the rules of Centrelink. I need to be paid any entitlements by December 31, 2014, and I wanted to give you as much notice as possible as I am not sure of the financial position of the business."

[22] Ms Ereaut thereafter claims that she engaged in a conversation with Mr Gospos concerning training another technician, Mr Geoffrey Kinzett, to repair the drain camera equipment, which is specialised equipment constituting a large part of the employer's business. Ms Ereaut claimed that she was obligated to ensure Mr Kinzett was fully trained in the future use of the drain camera equipment to ensure the business operated smoothly in Mr Gospos’ absence. This was particularly so because the employer's business is a smaller business and it was necessary to ensure the changed circumstances were accommodated quickly.

[23] Mr Kinzett gave evidence himself that over the course of December Mr Gospos engaged in some general talk about how he would get on in Mr Gospos’ absence and how he would fill in these days once retired. Mr Kinzett also gave evidence that Mr Gospos had him repair some of the specialist drain equipment so Mr Gospos could teach him ( Mr Kinzett) how to repair the equipment quickly and effectively:

“Stan got me to repair some of the specialist drain camera equipment he works on so he could teach me how to do the repairs efficiently and correctly. This was re termination of cameras, checking pushrods the damage and checking slip rings etc. He didn't want to leave the business in a position of not being able to service its equipment.”

[24] Mr Kinzett claimed that Mr Gospos was training him in an active manner and that he had not carried out the Ridgid camera repair work to any extent previously as it was not his ordinary work. That role, he claimed, belonged to Mr Gospos.

[25] Mr Kinzett went on to give evidence that Mr Gospos had claimed to him that:

“I could possibly come in to help out if you are having difficulties with the work every now and again, if Resch was in agreement with this.”

[26] Ms Cindy Ereaut and Mr Mitchelson contended that Mr Gospos had time off work on three or more occasions over the succeeding weeks so he could attend Centrelink or meet with his financial adviser.

[27] Ms Ereaut also commented that she had faxed some 18 pages of superannuation documentation to Mr Gospos’ superannuation fund at his request.

[28] Around 11 December 2014, Mr Kinzett claimed that Mr Gospos came up to him and said words to the effect that [Ms Marion Ereaut] had informed him that “Resch Electronics does not pay long service leave entitlements.”

[29] Mr Gospos also indicated that Centrelink had informed him that it would be more beneficial to him to stay employed for two days a week until his long service leave was due, which was in May 2015.

[30] Immediately prior to the employer's business’ Christmas shutdown, on 17 or 18 December 2014, Mr Daryl Ereaut conducted a meeting in the workshop to discuss Mr Gospos' resignation with the remaining two technicians - Mr Kinzett and Mr Mitchelson. Upon mentioning Mr Gospos’ resignation, Mr Gospos interjected and stated:

“I haven't resigned”.

[31] Mr Ereaut replied to Mr Gospos and stated that he believed he had resigned.

[32] Mr Mitchelson called the conversation in the following terms:

“Daryl (to Geoff) “do you feel confident that repairing the cameras after stands training, as there's no more time to learn before Stan goes in its nearly Christmas break?”

“Stan “I’m not resigning now, I'm staying on”.

“Daryl “No, you resigned”.

“Stan “No, I never said I was resigning, that's not what I was saying”.

[33] Mr Kinzett also stated expressly that he recalled Mr Gospos stating:

“I am not resigning now.”

[34] Prior to the Christmas shutdown, Mr Gospos also informed Mr Kinzett that he was not resigning and that he was returning after the Christmas break to perform duties five days per week on a full-time basis.

Consideration of the evidence

[35] The evidence of Mr Kinzett is quite important in this matter. I see no practical reason whatsoever that Mr Gospos would have engaged in training Mr Kinzett other than for the purposes of handing over his duties to Mr Kinzett upon his (Mr Gospos’) retirement. Mr Gospos claimed he was only sharing his knowledge, but Mr Kinzett gave contrary evidence; Mr Gospos was training him in a job that he had conducted on an ordinary basis in preparation for his departure.

[36] This conduct on Mr Gospos’ part to provide training to Mr Kinzett lends strong support to the evidence of Ms Cindy Ereaut (both in her written statement and in her viva voce evidence) that she discussed with Mr Gospos the need to train Mr Kinzett upon Mr Gospos having communicated to her his intention to resign his employment at the end of December 2014. As the manager of Research, her interest in business continuity ought to be reasonably assumed (and she so asserted in any event).

[37] That communication as given to Ms Ereaut was communicated to Mr Daryl Ereaut and Mr Mitchelson.

[38] Having heard the evidence in this matter, I considered Mr Kinzett’s evidence to be truthfully given, not just for reasons of his honest demeanour, but because he was not personally involved in any of the interactions between the employer and Mr Gospos and had no ostensible motive to concoct his evidence. Further, neither Mr Kinzett or Mr Mitchelson gave evidence that was directly supportive of the claims by Ms Marion Ereaut and Ms Cindy Ereaut - their evidence was carefully recounted and reflected their direct interactions with Mr Gospos only.

[39] But I also found the evidence of Ms Marion Ereaut to have been given candidly and without ambiguity. Ms Ereaut demonstrably in her detailed, stepped out evidence was informed by Mr Gospos that he sought to resign his employment in order to accrue benefits that might be foregone, and that he had to act quickly.

[40] I also observe that both Mr Mitchelson and Mr Kinzett gave evidence that Mr Gospos had stated that he was not resigning any more or any longer. That is, their evidence supported Mr Gospos having had a change of heart. Mr Gospos claims he had never resigned so he could never have had a change of heart. I place considerable weight upon the evidence of Mr Mitchelson and Mr Kinzett, as they were individuals removed from the direct confrontation between the Ereaut family and Mr Gospos.

[41] True it is that the Company was under cost pressures, but the evidence as led by the employer was not in my view tainted for that reason.

[42] On the balance of probability, the weight of the evidence of the employer is to be preferred to that of Mr Gospos. It is my view, that Mr Gospos announced his resignation in late November or early December 2014 and subsequently found that one of the financial premises on which he had based his understanding of his entitlements proved to be false.

[43] Mr Gospos subsequently sought to amend the basis of his employment to accommodate those changed premises (such as the basis on which he might access his long service leave by working a two-day week).

[44] Mr Gospos put this counter proposal, as it were, to his employer - Ms Marion Ereaut - but this proposal was not accepted.

[45] The difficulty for Mr Gospos is that upon having expressly communicated to his employer that it was his wish to resign his position effective as of a particular date, his employer was entitled to accept that resignation on its face. The fact that Mr Gospos may have come to realise that he miscalculated his due entitlements and the financial premises on which he had planned his retirement is a matter for which he is personally responsible.

[46] Mr Gospos’ employer was not obligated to reverse its acceptance of his [Mr Gospos’] resignation. It had taken steps to accommodate Mr Gospos’ absence and to ensure that the business was organised to operate effectively in his absence. It did this by requiring Mr Gospos to train Mr Kinzett in the more technically complex areas of his duties.

[47] Even if the employer was not inclined to reverse its acceptance of Mr Gospos’ resignation for reasons of its financial circumstances at the time, that gives rise to no unfairness or breach of any other kind on the part of the employer. It was of course open to the employer to accommodate Mr Gospos’ changed view of his circumstances. But it did not, and it did not wish to do so for its own business purposes. In the circumstances, the resignation could only have been rescinded on the mutual agreement of the parties, and no mutuality was in existence.

Conclusion

[48] Mr Gospos resigned his employment effective 31 December 2014. That resignation was accepted by Mr Gospos’ employer. Because Mr Gospos resigned his employment, Mr Gospos was not dismissed for the purposes of s.385 of the Act. That is, Mr Gospos was not dismissed at the initiative of his employer (s.383(1)(a) of the Act), nor did Mr Gospos resign his employment because he was forced to do so as a result of the conduct or course of conduct on the part of his employer (s.386(1)(b) of the Act).

[49] Because of these findings, I must dismiss Mr Gospos’ application under s.394 of the Act.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr S Gospos for the Applicant

Mrs M Ereaut for the Respondent

Hearing details:

2015.

14 May.

Brisbane.

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