Mr Stefan Szymanski v Melness Fabrications Pty Ltd
[2010] FWA 8770
•26 NOVEMBER 2010
[2010] FWA 8770 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Stefan Szymanski
v
Melness Fabrications Pty Ltd
(U2009/14708)
COMMISSIONER CRIBB | MELBOURNE, 26 NOVEMBER 2010 |
Application for unfair dismissal remedy.
[1] This decision concerns an application by Mr Stefan Szymanski (the applicant) under section 394 of the Fair Work Act 2009 (the Act) alleging that the termination of his employment by Melness Fabrications Pty Ltd (the respondent) was harsh, unjust and unreasonable. The applicant is seeking a remedy in respect of his dismissal.
[2] The matter was subject to telephone conciliation but was not settled. The applicant elected to have the matter arbitrated. The hearing took place on 5 and 6 May 2010.
[3] The applicant was represented by Mr M Champion, of counsel, and the respondent by Mr R Dalton, of counsel.
[4] The applicant gave oral evidence as did Ms M Szymanski, the applicant’s daughter. On behalf of the respondent, Mr G Ilgoutz, Manager of the Mulgrave site and Mr N Strachan, Foreman at the Mulgrave site, gave evidence.
[5] The respondent has raised a question of jurisdiction, namely, whether there was a dismissal in the terms of section 386 of the Act. During the hearing, both the jurisdictional and the merits aspects of the case were dealt with. Remedy will be addressed separately, and subsequently, if necessary.
WITNESS EVIDENCE
MR SZYMANSKI (The Applicant)
[6] It was Mr Szymanski’s evidence that in September 2007, following the respondent winning the PSS job, he had asked Mr Ilgoutz for more money as he was required to perform polishing work in addition to welding. He said that he had not said that he would resign unless he was paid more money. 1 Mr Szymanski stated that, in January 2009, he had not asked for more money; he had not been given a pay rise and had not threatened to resign unless he was paid more.2
[7] He confirmed that, in November 2009, he had asked for a pay increase. 3 He refuted the proposition that he had sought a pay rise three times since September 2007. The applicant stated that, in 23 years of employment, there was nothing wrong in asking for more money.4 He confirmed that he believed that, as a first class welder, he was being underpaid.5 The applicant rejected Mr Strachan’s statement that he had threatened to resign on numerous occasions.6 He said that, when he had asked for more money he had not threatened to resign.7
[8] The applicant stated that he had worked overtime on Saturday 21 November 2009 but not on 5 December 2009. It was his recollection that Mr Strachan and Mr Do had worked on 5 December 2009. He said he was unsure as to whether Mr Ilgoutz had worked. Mr Szymanski said that welding work had been done and that Mr Strachan had told him that Mr Ilgoutz had worked that day. It was recalled that, on the following Monday morning, he had found welding work that had been done over the weekend. The applicant stated that it was work that he could have undertaken. 8
Monday 7 December 2009
[9] Mr Szymanski indicated that, on Monday 7 December 2009, he was upset about not having been given overtime on the Saturday. He therefore wanted to talk to Mr Ilgoutz about it. 9 He stated that, prior to the meeting with Mr Ilgoutz about the overtime, he had not intended to resign. He had wanted to ask the reason for his not getting any overtime on 5 December 2009.10
Meeting on Wednesday 9 December 2009
[10] It was Mr Szymanski’s recollection that, when he walked into Mr Ilgoutz’s office, Mr Ilgoutz was seated at his desk. Mr Ilgoutz asked him why he was there and was he asking for more money? The applicant said that his response had been - no, that he was not there about money. Rather, he wanted to know what was going on as, since he had come back in September 2009 from 14 weeks long service leave, he felt that there was a different atmosphere in the factory. He said that nobody talked to him much now. 11
[11] The applicant recalled that when he had asked why he had not been given overtime on the Saturday, Mr Ilgoutz had told him that he had not had a welding job for him on the weekend. 12 Mr Szymanski had responded that he could have done the work that had been given to the other employees. He recounted that Mr Ilgoutz had said that the applicant was too expensive.13 The applicant had replied that, if he was too expensive, why had someone done his welding job? Mr Ilgoutz was said to have replied that he did not need him.14 The applicant recalled that Mr Ilgoutz had got him more and more upset and annoyed and frustrated and that he had pushed him.15
[12] Mr Szymanski recalled that Mr Ilgoutz had then asked him what he wanted to do and whether he wanted to finish? 16 The applicant had said no and that he had just wanted to know the reason for the not getting overtime. He said that he had told Mr Ilgoutz that he was not being fair. It was stated that Mr Ilgoutz had then got up from his chair and was standing.17 The applicant said that Mr Ilgoutz had told him to get out18 and that he was not to tell him how to do his job. Mr Ilgoutz had then said that if he wanted to resign, to write him a letter and sign it. He recounted that he was shocked and extremely upset. He said that he had responded by saying that he would not do that - would not sign a letter.19 The applicant recalled raising his voice and said that Mr Ilgoutz had started yelling.20
[13] The applicant recounted that Mr Ilgoutz had cut him off and had said:
“”What do you want to do? You finished?” I was, shocking, I don't know what to do, I was, “Yes, yes, I'm finish 23 December.” That's it, that's what I said to him.” 21
[14] During cross-examination, Mr Szymanski confirmed that he had said “I’m finishing on the 23rd.” 22 He stated that it had not been his intention to say that he was quitting on the 23rd. Rather, the applicant was saying that he would be finishing work with everyone else (for the Christmas holidays) on the 23rd.23 Mr Szymanski stated that he had not meant, and not intended, to resign.24 He denied that Mr Ilgoutz had asked him to reconsider his decision.25 It was his recollection that Mr Ilgoutz had asked him whether he wanted to resign and that he had replied that he did not want to.26
[15] Mr Szymanski indicated that he had then turned away and gone downstairs with Mr Ilgoutz following. He recalled Mr Ilgoutz going and talking to Mr Strachan and then asking him to tell Mr Strachan what he had said in the office. 27
[16] The applicant said that his response had been that he was not going to talk to anyone. Mr Szymanski stated that he did not hear Mr Ilgoutz tell Mr Strachan in front of him that he had resigned on two weeks’ notice. He stated that Mr Ilgoutz had told him that he was not to finish up on 23 December 2009 but this Monday and that he would be paid out. 28 Mr Szymanski stated that he understood Mr Ilgoutz to be sacking him when he told him that he would not finish on the 23rd but on Monday.29 It was recounted that he had started shaking and did not know what to do so he had clocked off an hour early and gone home.30
10 December 2009
[17] On Thursday, 10 December 2009, Mr Szymanski recounted that he had given his medical certificate to his daughter, Monica, and asked her to telephone the office and to tell them that he was unwell and would not be working. 31 The applicant confirmed that his daughter had told him that she had had three conversations with Mr Ilgoutz on 10 December 2009. With respect to the confirmatory resignation letter from the company, dated 10 December 2009, Mr Szymanski indicated that he had received it by post on Friday 11 December 2009. He also indicated that he and his daughter had prepared the letter of 14 December 2009 which he had sent to the company.32
[18] It was stated that he was 62 years old when this situation had occurred and he was now 63. He said that he had not been thinking about retiring due to his mortgage. The applicant gave evidence that, in 2006, he had finished building his home and still had a mortgage so, therefore, it was against his interests to resign. 33 He had wanted to keep working as long as he was able to, healthwise.34 The applicant explained that he was not looking for work at the moment due to not feeling well. He said that when he was feeling better, there would be no problem looking for another job.35
[19] In terms of his application to Fair Work Australia, Mr Szymanski was questioned by Mr Dalton regarding who had prepared the application. He indicated that he had had a two hour meeting with his solicitor (without his daughter) about a week after 9 December 2009. His solicitor was said to have lodged the application and the applicant indicated that he had been given a copy and was satisfied that the details were correct. 36 He refuted that he had resigned - despite his application stating that he had told Mr Ilgoutz during the meeting on 9 December 2009 that he would resign on 23 December 2009.37
MS SZYMANSKI
[20] Ms Szymanski, the applicant’s daughter, gave evidence that she had not spoken to her father’s lawyer prior to typing the letter of 14 December 2009. 38
[21] It was confirmed that she had had three conversations with Mr Ilgoutz on 10 December 2009 and that the first one was at about 10.00am. Ms Szymanski recalled that she had telephoned Mr Ilgoutz because her father had given her a medical certificate and had asked her to ring the factory and let them know that he was not coming into work because he was ill. 39 She recalled saying to Mr Ilgoutz that she was going to fax in a medical certificate as her father was ill but would be back at work on Monday. Ms Szymanski confirmed that Mr Ilgoutz had told her that her father had resigned the previous day. It was accepted that she had not disputed whether her father had resigned. Rather, Ms Szymanski confirmed that the issue she had raised with Mr Ilgoutz was whether the resignation was legally binding because it was not in writing.40
[22] Ms Szymanski agreed that it was during the second conversation that Mr Ilgoutz proposed a meeting with her father which she indicated was agreeable to she and her father. She confirmed that, during the third conversation with Mr Ilgoutz, he had said that it was not necessary for there to be a meeting on Monday as he had decided to leave things as they were. 41 It was Ms Szymanski’s recollection that, during the third conversation, she had tried to challenge Mr Ilgoutz’s statement that her father had verbally resigned but he had disregarded her side of the conversation, had tried to talk over her and had hung up abruptly.42
RESPONDENT
MR ILGOUTZ
Meeting on 9 December 2009
[23] It was Mr Ilgoutz’s recollection that, when the applicant had entered his office, he had been standing halfway between the door (which was open) and his desk. He (Mr Ilgoutz) had then started to walk around his desk and had sat down. He had offered the applicant the chair across from his desk but the applicant had declined to sit down. 43 Mr Ilgoutz indicated that he had started the meeting with the thought that it was going to be a meeting about the applicant wanting more money.44 Mr Ilgoutz recalled noticing that Mr Szymanski looked upset and worried45 and so he had asked what was troubling him. The applicant had responded that others had been working overtime but that he had not been asked. He had wanted to know why he had not been given overtime.46 Mr Ilgoutz recounted that his response had been that he had not been needed on those weekends but that, when he was, he would get overtime.47
[24] It was recalled that he had explained to Mr Szymanski that, as the company had not been profitable for some time, it had to be careful where money was spent. 48 Mr Ilgoutz stated that Mr Szymanski had not asked him why he had been doing welding work on the Saturday because he was more polite than that.49 It was Mr Ilgoutz’s view that, at that point in the meeting, the applicant had a determined and not friendly look on his face but that he was not upset. Mr Ilgoutz denied that he had then got upset with the applicant as he had learnt that the best way to negotiate with Mr Szymanski was to be gentle and understanding but firm.50 Mr Ilgoutz also denied that he had told Mr Szymanski that he did not need him and had asked him if he wanted to resign. It was stated that this was completely contrary to what he wanted. Mr Ilgoutz disagreed with the rest of the applicant’s account of their conversation.51
[25] Mr Ilgoutz stated that the applicant had told him that he was giving him two weeks’ notice and that he would finish on the 23rd. 52 He recalled being shocked as he had not expected the meeting to have resulted in that. Mr Ilgoutz recalled that he had tried to get Mr Szymanski to reconsider what he had said - to talk him out of resigning.53 However, he said that the applicant did not respond other than by repeating that he was finishing on the 23rd December.54 The meeting had ended after Mr Ilgoutz had responded by saying that, if the applicant insisted, he accepted his resignation.55 It was recalled that the applicant had just looked at him and walked out of the office.56 It was Mr Ilgoutz’s evidence that he had not gone to great lengths to persuade Mr Szymanski not to resign as he had the feeling that the applicant had his mind made up.57 Further, Mr Ilgoutz stated that it would have been completely against his or the company’s wishes to seek that the applicant resign. He stated that this was particularly so at that time as new work was expected. As well, there was existing work that only the applicant was capable of doing.58
[26] It was denied by Mr Ilgoutz that he had got upset at the meeting and had yelled at Mr Szymanski. He said that it was not a heated discussion. Mr Ilgoutz denied telling the applicant to write and then sign a letter of resignation. He stated that he did not ask the applicant what he wanted to do and did not tell him that he was finishing up. 59
[27] It was recounted that he had then gone downstairs to tell the foreman that the applicant had resigned. Mr Ilgoutz recalled that he told Mr Strachan that Mr Szymanski had just resigned and he called out to the applicant to come over and confirm what he had said in the office. Mr Ilgoutz indicated that he was still hoping that the applicant might change his mind. 60 It was stated that the applicant had come over to Mr Strachan and himself. When he was asked to repeat what he had said on the office, it was recounted that the applicant had turned around and gone back to his work station.61 He denied telling Mr Szymanski that he was not to finish on the 23rd but on Monday.62 Mr Ilgoutz then had a conversation with Mr Strachan and he believed that the applicant was in earshot and so he assumed that the applicant had heard what he said to Mr Strachan.63 It was Mr Ilgoutz’s evidence that he had no doubt that Mr Szymanski had intended to resign and that he had resigned.64 It was Mr Ilgoutz’s recollection that, at this point, the applicant still had the resolved look on his face but was not upset or agitated. He denied asking Mr Szymanski if he was scared or telling him that he would finish on Monday and not on the 23rd.65 Mr Ilgoutz indicated that he had had no further conversation or contact with the applicant after that.66
[28] It was Mr Ilgoutz’s view that the applicant clocking off early on 9 December 2009 was not unusual as it had happened before. He recalled not being surprised by it but it bothered him in terms of whether the applicant would be back the next day and how to manage the work. 67
10 December 2009
[29] It was stated by Mr Ilgoutz that there was no doubt in his mind that the applicant had resigned. The reason for arranging, through Ms Szymanski, to meet with the applicant on Monday 14 December 2009 was said to be because he (Mr Ilgoutz) thought that, if he did offer Mr Szymanski more money, he might reconsider his resignation. He knew that the business was in trouble, particularly with the applicant’s resignation and so was willing to see if there was an opening there whereby the applicant would reconsider. However, he said he was in two minds, hovering between asking the applicant to reconsider and re-hiring him and leaving things alone. 68 He recalled that Ms Szymanski had told him that the meeting was a good idea and that her father would come. Mr Ilgoutz agreed that, if the meeting had taken place, it was possible that things might have been sorted out.69
[30] In the end, he concluded that the applicant would again demand more money and threaten to resign and he was not prepared to go through that again. Therefore, he decided to let the resignation lie. 70 He recounted that, after his second conversation with Ms Szymanski and, prior to making this decision, he had spoken to a number of people including the Managing Director and foreman. He stated that Mr Chadwick and Mr Strachan had agreed with his conclusion that there could no longer be a continuation of the “pay me more money or I will resign” scenario.71 Mr Ilgoutz confirmed that he had never received a written notice of resignation from the applicant.72 Mr Chadwick had sent him a draft confirmatory resignation letter to be sent to the applicant. Mr Ilgoutz was unsure as to whether he had made changes to the draft.73 He recalled that Mr Chadwick had left the decision up to him but had suggested that it may be best to leave things as they were as the problems would re-occur.74 With respect to the confirmatory letter sent by the company, it was Mr Ilgoutz’s evidence that writing such a letter was his idea. He also said that not requiring the applicant to work out his notice was his idea.75 With respect to the applicant’s non appearance at work on Thursday 10 December 2009, Mr Ilgoutz recalled that he was not surprised although he had expected him at work.76
[31] It was Mr Ilgoutz’s evidence that, in deciding not to require the applicant to work out his notice, there were a number of things he had to take into account. These included the morale of the rest of the staff, that Mr Szymanski was unhappy (otherwise he would not have resigned), the work that had to be completed and the work that had not yet arrived. 77 He said also that he could not be sure one way or another that there would not be a major mistake made to render a job useless. He recalled that he had thought it was best if the applicant left straight away, hence the confirmatory letter.78 Mr Ilgoutz indicated that he had put the company’s letter into Mr Szymanski’s letterbox late afternoon on Thursday 10 December 2009. The reason for doing this personally was to ensure that Mr Szymanski understood that his resignation had been accepted and he had wanted to “close that chapter”.79
[32] It was Mr Ilgoutz’ recollection that he had had three conversations with Ms Szymanski, two of which occurred on 10 December 2009. He stated that, firstly, Ms Szymanski had rung him and asked him what had happened. He recalled telling her that her father had resigned but not that Ms Szymanski had said that her father would be absent from work that day but would be back at work on Monday. Mr Ilgoutz also did not believe that a number of other matters were discussed during that telephone call. 80 In terms of the second conversation with Ms Szymanski, it was confirmed by Mr Ilgoutz that he had proposed a meeting the following Monday.81
[33] Mr Ilgoutz confirmed his understanding from the applicant that, when he returned from long service leave, he was still working on his house even though he was living in it. 82 He would not comment about whether or not an increase of $7 an hour over 23 years of employment was unremarkable.83 Mr Ilgoutz recalled that the applicant did not receive a pay rise in January 2009 when he asked for one and said that he had not resigned. Mr Ilgoutz stated that the applicant had threatened to resign more often than the examples given in his witness statement. However, it was not every other day.84
[34] It was confirmed by Mr Ilgoutz that, in November 2009, he had checked what the award minimum was and had told Mr Szymanski that he was being paid $200 above that rate. He agreed that he had told the applicant this and that that was the end of it. 85
[35] With respect to Saturday 5 December 2009, Mr Ilgoutz indicated that he had worked and that it is possible that he had done some welding but initially he could not recall. However, he did remember that he had made a welding jig or jigs ready for production welding. 86 Mr Ilgoutz said that the applicant could not have done that work as it was design work following his visit to a customer. He said that he and two other employees had worked that day but the applicant had not as there was no welding work ready for him.87
[36] Mr Ilgoutz described the applicant’s behaviour (when he asked for a pay rise or else he would resign) as blackmail. 88 It was recalled that the most recent occasion when the applicant had demanded more money or else he would resign was a few months prior to his resignation.89
MR STRACHAN
[37] Mr Strachan indicated that work was busy as at 9 December 2009 but that, personally it did not affect him whether the applicant stayed or left. 90 He said that he did not think that there was anything wrong with an employee asking for more money. It was stated that there were more times when the applicant had asked for money than were set out in his statement.91 Mr Strachan said:
“To me personally yes, he was always complaining about money.” 92
[38] It was explained that he had not told the applicant to stop complaining as he had not wanted to upset him. Mr Strachan indicated that on a few occasions the applicant had coupled his requests for more money with threats that he was going to resign. 93
9 December 2009
[39] Mr Strachan recalled that, on the afternoon of 9 December 2009, Mr Szymanski had come down the stairs from the office with Mr Ilgoutz close behind him. He said that he thought that the applicant was on the way back to his work station when Mr Ilgoutz asked Mr Szymanski to tell him (Mr Strachan) what he had said in the office. He recalled that Mr Szymanski had said “No”. 94Mr Strachan did not remember hearing Mr Ilgoutz then ask the applicant if he was scared; the applicant laughing or Mr Ilgoutz telling the applicant that he would finish on Monday rather than the 23rd December. He indicated that his recollection was that the applicant did not say anything and had walked straight past him.95
[40] It was stated by Mr Strachan that Mr Szymanski was a bit red in the face and that Mr Ilgoutz was a little bit upset as he was taken a bit aback by what was going on. Mr Strachan said that he could see that there had been trouble/something had happened between the two individuals upstairs. He recalled Mr Ilgoutz telling him that the applicant had just resigned and that he had accepted it. 96 It was Mr Strachan’s evidence that he had not said anything as he wanted to stay out of it.97
[41] Mr Strachan indicated that he had not seen the applicant leave work early on 9 December 2009. He said that he was not concerned that he had gone as Mr Szymanski did get upset a bit and he thought that he had gone home to get over it. It was stated that the applicant had never resigned before. 98
10 December 2009
[42] Evidence was given by Mr Strachan regarding a conversation he had with Mr Ilgoutz on 10 December 2009. He confirmed that Mr Ilgoutz had told him that he was considering having a meeting with the applicant to convince him to reconsider. It was indicated that Mr Ilgoutz had told him that two weeks’ notice had been given. He recalled that he thought that there should not be a meeting as he believed that the applicant would start his constant complaining about money again if he was re-hired. 99 Mr Strachan stated that the applicant did not complain to Mr Ilgoutz all the time but to him. Mr Strachan confirmed that his concerns about the meeting related to the applicant continuing to complain.
SUBMISSIONS
APPLICANT
[43] On behalf of the applicant, Mr Champion made submissions regarding various matters which had formed part of the evidence. The first issue dealt with was that of the alleged requests for pay rises and threats to resign by the applicant. It was stated that the evidence revealed that Mr Szymanski had only made three requests for pay rises over a period of eight years. 100 In terms of the suggestion that the applicant made serial threats to resign, this was said to have been denied by the applicant. It was highlighted that Mr Strachan had given three examples over eight years during which the applicant had not said that he would resign.101 It was contended that the Tribunal was not assisted by this evidence.
[44] The second matter addressed by Mr Champion was the applicant’s concern about overtime, which was the reason for the meeting on 9 December 2009. It was stated that the applicant was genuinely concerned that he had been overlooked for overtime on Saturday 5 December 2009. 102
[45] A further issue raised, on behalf of the applicant, was the divergence between Mr Szymanski and Mr Ilgoutz regarding their accounts of their conversation in the office on 9 December 2009. It was stated that the written and oral evidence given by the applicant was consistent. This was said to be in contrast with the differences between Mr Ilgoutz’s written statement and his oral evidence. In the former, the applicant was stated to have said once that he was finishing up on the 23d. In his oral evidence it was said that Mr Ilgoutz had stated that the applicant had said this twice. 103 The reasons the applicant’s evidence should be preferred were set out in detail.104 It was also submitted that, at the commencement of the meeting on 9 December 2009, the applicant had had no intention of resigning.105
[46] Mr Champion submitted that the Tribunal should not decide the matter based on the applicant’s solicitor’s description of events as set out in the application to the Tribunal. It was stated that the lawyer had had little involvement with the application. 106
[47] With respect to the conversation involving Mr Strachan, that followed the meeting between the applicant and Mr Ilgoutz, it was the applicant’s contention that the fact that Mr Ilgoutz asked the applicant to repeat his resignation suggested that there was ambiguity about his resignation. It was argued that the fact that Mr Szymanski refused to repeat his words put the employer on notice that a resignation may not have been what was intended. Further, Mr Champion contended that the applicant clocking off early, which was unusual and inconsistent with having given two weeks’ notice, should have also indicated that the resignation was ambiguous. 107
10 December 2009
[48] In terms of the events of 10 December 2009, Mr Champion stated that there were three telephone conversations between Ms Szymanski and Mr Ilgoutz. Mr Champion said that, from Mr Ilgoutz’s first conversation with Ms Szymanski, he knew that there was a problem and that he could not move forward on the basis of having received an unambiguous resignation from the applicant. 108 Further, it was submitted that, when the applicant did not come to work, the employer should have been very clear that the applicant’s resignation had not been unambiguous.109 It was argued that, at the point in time when Mr Ilgoutz had proposed a meeting with the applicant, the employment relationship was alive and salvageable. The applicant’s preparedness to attend a meeting put the employer on notice that there were special circumstances and that the respondent could not proceed on the basis that it had received an unambiguous resignation from the applicant.110 The applicant submitted that, during the third telephone call, when Ms Szymanski told Mr Ilgoutz that her father had been bullied and coerced into resigning, the employer should have been very clear that this was not a voluntary departure.111
[49] With regard to the absence of evidence from Mr Chadwick, it was contended that the applicant was entitled to a “Jones v Dunkel” inference that Mr Chadwick’s evidence would not have assisted the respondent. 112
[50] Mr Champion submitted that the confirmatory resignation letter, 113 written by the employer, was illustrative of the employer’s determination to bring the employment to an immediate end. A further example was said to be the fact that Mr Ilgoutz personally drove to the applicant’s house and put the letter in his letter box. It was argued that the employer was trying to remove any doubt about the applicant’s resignation.114
[51] The applicant contended that the unilateral cancelling of the agreed meeting, the writing of the confirmatory resignation letter and its hand delivery to the applicant’s home were the events, all at the employer’s initiative, which were intended to bring the employment to an end. It was argued that these events occurred whilst the employer was on notice that “special circumstances” existed. These “special circumstances” were said to be the “heat of the moment” ambiguity in the 9 December 2009 resignation, the refusal by the applicant to confirm his resignation, his leaving early and the conversations between Ms Szymanski and Mr Ilgoutz the following day. 115
[52] It was submitted that the employer had embarked upon a concerted series of actions including cancellation of the meeting and writing and hand delivery of a confirmatory resignation letter which brought the employment to an end. 116 The applicant argued that he had no intention of bringing the employment to an end - he was genuinely concerned about overtime. However, Mr Champion contended that, by the end of the conversation on 9 December 2009, things had been said in the heat of the moment by both parties but, the applicant had not uttered unambiguous words of resignation. It was stated that his words were simply a way of bringing the meeting to an end.117
[53] The applicant submitted that, if the Tribunal found that the employment came to an end at the initiative of the employer, the application would have to be successful. 118 With respect to the authorities on this issue, the Tribunal was referred particularly to the principles set out in O’Meara v Stanley Works Pty Ltd119 and Mohazab v Dick Smith Electronics Pty Ltd (no. 2)120 (Mohazab). Reference was also made to a number of cases which dealt with “heat of the moment” resignation.121
[54] In applying the principles set out in these authorities to the present case, Mr Champion argued that, by the end of 9 December 2009, there were “special circumstances” in play which should have put the employer on notice that there should be inquiry as to whether the applicant’s resignation was really intended. It was contended that the conversations between Ms Szymanski and Mr Ilgoutz on 10 December 2009 were such that the employer could not assume that there had been a resignation. The applicant stated that, at the time the meeting was proposed, the employment was still active. 122
[55] However, it was the applicant’s submission that the employer then embarked on a series of actions which were intended to bring the employment to an end, regardless of whether the applicant intended to leave it voluntarily. These actions were the unilateral cancellation of the meeting, the writing of the confirmatory resignation letter and its hand delivery to the applicant’s home. This was said to have occurred within the content of the three conversations between Ms Szymanski and Mr Ilgoutz which put the employer on notice that the resignation may not have been intended. Therefore, it can be said that the employment of Mr Szymanski came to an end at the initiative of the employer. 123
[56] Finally, the applicant contended that there was no valid reason for Mr Szymanski’s dismissal and that the termination was harsh, unjust or unreasonable. 124
RESPONDENT
[57] On behalf of the respondent, Mr Dalton submitted that, the issue the Tribunal is required to determine, based on the facts, is whether the applicant was dismissed. It was stated that there were two limbs to section 386 of the Act. The first one was defined as termination at the initiative of the employer (Mohazab line of authorities). The second limb was intended to reflect the common law concept of constructive dismissal. 125 A number of examples of constructive dismissals were provided.126
[58] It was argued by the respondent that s.386(b) did not apply as there was no evidence of a threat to dismiss or “resign or we will sack you”. In this matter, it was said that it was not a situation where the employer has given the employee no effective choice but to resign. Rather, Mr Dalton submitted, it was a matter which falls within the purview of section 386(a) and the Mohazab line of cases. The test for determining whether the termination was at the initiative of the employer was argued to be the conduct of the employer which had to be viewed objectively in light of all the circumstances. 127
[59] The Tribunal was taken to a number of authorities and referred to particular passages regarding what constituted termination at the initiative of the employer. For example: where
“the action of the employer.... is the principle contributing factor” 128,
“an important feature is that the act of the employer results directly or consequently in the termination of the employment and the employment relationship is not voluntarily left by the employee.” 129 and the
“termination must result from some action on the part of the employer.... intended to bring the employment to an end and perhaps action which would on any reasonable view probably have that effect..... is the probable result of the employer's conduct.” 130
[60] Further, the Tribunal was referred to the decision of SDP Richards in Hastie v Impress Australia Pty Ltd 131 where he summarised the authorities as delineating between two different types of employer behaviour. It was submitted that this case was a situation where the employer’s conduct did not seek to intentionally bring about a resignation or by other conduct which would have probably resulted in a resignation.132
[61] With respect to the legal position regarding a resignation, the respondent argued that, once clear words of resignation were communicated, it was not open to the employee to unilaterally withdraw it later. If it was accepted by the employer, the resignation could not be unilaterally withdrawn by the employee. 133 Mr Dalton contended that the facts in Canh K Ngo v Link Printing Pty Ltd 134(Ngo) were on all fours with this matter. The principles established in Ngo were said to be that, if unambiguous words of resignation are used by an employee, the proper conclusion of fact is that the employee has resigned. It was argued that Ngo further stood for the proposition that, if the employee did not swiftly retract his resignation, then the employer was entitled to proceed on what the employee had communicated the day before - that he had resigned.135
[62] The facts of this matter were said to be that the applicant had stated clear words of resignation during the meeting on 9 December 2009. The letter from Mr Szymanski, dated 14 December 2009, indicated that the applicant had no other option but to respond in the heat of the moment. 136 However, it was contended by the respondent that the letter did not say or imply that there was no resignation on 9 December 2009 and the application to the Tribunal137 contained two express references to the applicant having resigned.138 Mr Dalton submitted that there was no evidence of a swift retraction of his resignation by Mr Szymanski.
[63] It was argued that, in the applicant’s outline of submissions 139 and followed by oral evidence by Mr Szymanski, the position being put was that, when he said he was finishing up on 23 December 2009, he was not resigning but was saying that he was going on the Christmas break on 23 December. Mr Dalton contended that a different position was now being put by the applicant. This was said to be that, whatever happened on 9 December 2009 was a bit unclear but that, what happened afterwards was ambiguous. Mr Dalton submitted that this was all irrelevant as there had not been a swift retraction of the resignation. He said that the applicant’s case turned on a finding that Mr Ilgoutz should have reasonably understood that the applicant’s words had meant that he was taking his holidays from the 23rd December 2009.140
[64] The respondent argued that the Tribunal was unable to draw a conclusion that, looking at the employee’s conduct, any reasonable person would have taken the applicant to have meant that he was going on holidays when he said he was finishing on 23 December 2009. It was stated that the Tribunal could not conclude this as the factory shut for two weeks every year over Christmas and so, to make that remark, was a very strange thing to suggest. Secondly, the applicant’s evidence that there was all this talk about resignation by Mr Ilgoutz had to be taken in the context of two adults having a conversation with one of those adults not having been afraid to have raised issues of more money and resigning in the past. In addition, it was stated that there was evidence that the applicant had been unhappy about his work situation since his leave in September 2009. Further points were raised regarding Ms Szymanski’s evidence and Mr Ilgoutz’s change of mind about the proposed meeting. 141
[65] It was submitted that, in order for the applicant to be successful, the Tribunal had to be persuaded that, any reasonable person, in the context of the meeting on 9 December 2009, would have understood that Mr Szymanski’s words meant other than he was resigning. Further, there was said to be no evidence that there was conduct by the employer intended, calculated or designed to bring an end to the employment relationship. This was except if the Tribunal accepted the applicant’s evidence that Mr Ilgoutz kept on telling the applicant to go, get out of here etc. Mr Dalton highlighted Mr Ilgoutz’s evidence that Mr Szymanski’s resignation was not what he had been seeking as an outcome of the 9 December 2009 meeting. The respondent also indicated that it was the following afternoon (10 December 2009) when a decision was made to leave things as they were. 142
CONCLUSIONS
[66] In this matter, the respondent has raised a jurisdictional issue as to whether, for the purposes of section 386 of the Act, the applicant was dismissed. The question before the Tribunal, in this case therefore, is whether Mr Szymanski resigned voluntarily or whether he was dismissed.
[67] Section 386 sets out the 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.”
[68] I will deal with the requirements of section 386 first.
[69] It was argued by the applicant that he had not unambiguously resigned and that there was ample “heat of the moment” ambiguity in the conversation of 9 December 2009. Further, it was contended that the subsequent events of that day (Mr Szymanski’s refusal to confirm his resignation and his early clocking off) had increased that ambiguity. This was said to have been confirmed when the applicant did not attend at work the next day and his preparedness to attend a meeting on 14 December 2009. It was argued that all of these events put the company on notice that there were “special circumstances”. This was said to mean that the respondent could not proceed on the basis that it had received an unambiguous resignation the previous day.
[70] Further, the applicant contended that, the actions of the employer in the writing the resignation letter to the applicant and its hand delivery to his home, the unilateral cancelling of the proposed meeting on 14 December 2009 and not allowing the applicant to work out his notice, were all at the employer’s initiative and were said to be intended to bring the employment relationship to an end. It was submitted that these actions by the employer took place when “special circumstances” existed. That is, they occurred at a time when the employer should have been alerted that the “resignation” was ambiguous and maybe that it was not what the applicant had meant.
[71] For the respondent’s part, Mr Dalton submitted that s.386(1)(b) was not applicable in this matter as there was no evidence before the Tribunal of a threat to dismiss or of circumstances where the employer had engaged in a course of conduct which gave the applicant no effective choice but to resign. It was contended that the relevant section was s.386(1)(a) - whether there was a termination at the initiative of the employer. Mr Dalton argued that the applicant, in saying “I’m finishing on the 23rd” brought the employment relationship to an end by the giving of notice on 9 December 2009. He contended that there was no evidence of conduct by the employer which was intended, calculated or designed to bring about an end to the employment relationship. Accordingly, it was the respondent’s submission that the applicant had resigned on 9 December 2009 and that there had not been a termination at the initiative of the employer.
[72] Both parties were in agreement about the key pertinent authorities regarding “in the heat of the moment” resignations. These were Ngo, Bernadette Minato v Palmer Corporation Ltd 143 (Minato) and Gunnedah Shire Council v Grout144 (Grout). The Ngo case was decided after the other two cases and it referred to the principles that had been set out in the preceding cases. As the parties did, I will adopt the principles contained in Ngo, in this matter.
[73] The first issue to be determined is whether Mr Szymanski resigned during the meeting with Mr Ilgoutz on 9 December 2009. Reaching a conclusion on this requires the making of certain findings of fact regarding what was said during the 9 December 2009 meeting. Having carefully considered all of the material before me, I have formed the view that:
- The conversation between Mr Szymanski and Mr Ilgoutz, at some point, became heated. Mr Strachan’s evidence was that, when the applicant and Mr Ilgoutz came downstairs after their meeting, he could tell that something (trouble) had happened during the meeting as they looked a little bit upset and the applicant was also a bit red in the face. 145
- It is probable that Mr Ilgoutz asked the applicant whether he wanted to resign (finish).
- The applicant said the words “Do what you want to do Gunther. I’m finishing on the 23rd.”
- In saying those words, the applicant said that he was resigning and not that he was going off on the Christmas shutdown on the 23rd December. The oral evidence of Ms Szymanski regarding her first telephone call with Mr Ilgoutz 146 together with her contemporaneous notes of the discussion147 indicate that the applicant had verbally resigned the previous day and what was being challenged was whether a verbal resignation was legally binding.
- Neither party intended that the outcome of the meeting would be the ending of the applicant’s employment with the company.
- Mr Ilgoutz accepted the applicant’s resignation. It was Mr Strachan’s evidence that, when Mr Ilgoutz came downstairs, he told him that the applicant had resigned and that he had accepted it.
[74] On the basis of the above views, I find that the applicant resigned in the heat of the moment. The Full Bench in Ngo, relying on Kwik-Fit (GN) Ltd v Lineham, 148 found that:
“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such....Words may be .... in the heat of the moment . . . These we refer to as `special circumstances'. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can be properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.” 149
[75] The finding that the applicant resigned in the heat of the moment triggers the “special circumstances” set out in Ngo above. It was therefore necessary for the respondent to allow “a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link [the employer] on notice that further inquiry was necessary to see whether Mr Ngo’s [the applicant] resignation was really intended.” 150
[76] Applying the above principles to this matter, it is necessary to refer to what happened after the meeting in 9 December 2009. It was the applicant’s submission that the “special circumstances” included the ambiguous resignation, the applicant refusing to confirm his resignation to Mr Strachan, clocking off early, not presenting at work the next day and his willingness to have a meeting on the Monday. It was argued that the employer should have been aware that a “special circumstance” situation existed.
[77] The respondent contended that “special circumstances” did not exist as the applicant had unambiguously resigned on 9 December 2009. It was argued that none of the events following the meeting on 9 December 2009 constituted “special circumstances” and, therefore, the employer was entitled to treat the applicant’s resignation on 9 December 2009 as unambiguous.
[78] Looking at each of the purported “special circumstances”, I have not been convinced that the applicant leaving early on 9 December 2009 and his not presenting at work the next day should have put the employer on notice that the applicant’s resignation may not be what it seemed. Mr Strachan’s evidence, which I accept, was that, in the past, when the applicant had got upset about something at work, he would clock off and go home. Mr Strachan also said that he was not concerned when the applicant was not at work on 10 December 2009. 151 Turning to the other “special circumstances” put forward by the applicant, I have formed the view that the applicant’s behaviour downstairs, immediately after the meeting, was not necessarily such that the employer would have been put on notice that the applicant’s resignation may not, in fact, be that. There could have been a number of reasons why the applicant declined to confirm that he had resigned. It was Mr Strachan’s evidence that it had not really struck him as odd that the applicant had not wanted to repeat his resignation.152
[79] At this point it should be noted that, following the conversation in Mr Ilgoutz’s office on 9 December 2009, there was no direct contact between the employer and the applicant. The communication was conducted through the applicant’s daughter. Given my view expressed earlier, of what Ms Szymanski said to Mr Ilgoutz during their first telephone conversation, by the end of that call, the employer should have known that the resignation was being challenged, albeit on the basis that it was verbal rather than in writing. This knowledge should have been confirmed by the applicant’s willingness to attend a meeting on Monday 14 December 2009. Therefore, it is my view that the employer should have been aware by the end of the first conversation with Ms Szymanski the next morning that the resignation was not a settled matter. This should have been confirmed, for the employer, by the end of the second telephone conversation when the employer initiated offer of a meeting was accepted by Ms Szymanski on behalf of her father.
[80] It was the Full Bench’s view in Ngo, that once the applicant had said that he resigned, it was incumbent on Link to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further inquiry was necessary to see whether Mr Ngo’s resignation was really intended. 153 Applying that reasoning to this matter, following the applicant’s statement that he was resigning, a period of time needed to pass for the employer to see if anything occurred which would have put it on notice that it needed to ascertain whether Mr Szymanski had really intended to resign. Based on my previous findings, there was nothing that occurred between approximately 2/2.30pm on 9 December 2009 and about 10.00am the following morning which would have signalled to the respondent that perhaps the applicant had not actually intended to resign.
[81] In Ngo, the applicant had presented for work the next day, following his resignation the previous afternoon. At that point, he advised the company that he was not resigning. 154 In this matter, at an approximately similar time, Mr Szymanski’s daughter challenged the validity of a verbal resignation. Unlike in Ngo, however, in this matter, there is no evidence before me that the applicant actually retracted his resignation either directly or through his daughter, prior to receiving the letter from the company confirming his resignation, late afternoon on 10 December 2009. It appears from Ms Szymanski’s evidence that it was not until after her second telephone conversation with Mr Ilgoutz that she spoke to her father and asked him what he wanted to do. Ms Szymanski recalled that her father said to her that he had not resigned and that he wanted to return to work on Monday. During the third telephone call, which was about late morning on 10 December 2009, Ms Szymanski’s evidence was that she had wanted to tell Mr Ilgoutz that her father would be returning to work on Monday (retracting his resignation). However, it was her recollection that Mr Ilgoutz would not let her speak and that he had said that her father had verbally resigned and that he was going to proceed on that basis.155
[82] Even if Ms Szymanski had been able to tell Mr Ilgoutz, during the third conversation (late morning), that her father was coming back to work on Monday, applying the principles in Ngo, the retraction was not swift and Mr Szymanski, as Mr Ngo, was not entitled to withdraw his resignation on the day following the giving of it. 156 The Full Bench found that a reasonable period of time had elapsed, well before Mr Ngo had sought to withdraw his resignation when he had resumed work the next day (having “resigned” on the afternoon of the previous day and worked the rest of his shift).157 The Full Bench also concluded that, based on the authorities, a unilateral withdrawal of a notice of termination of a contract of employment is not possible.158
[83] Taking all of this into account, it is my view that the company was entitled to formally accept the applicant’s resignation late the following day as, by then, a reasonable period of time had elapsed. Further, even though the resignation had been given in the heat of the moment, it had not been retracted either swiftly or at all and a unilateral withdrawal of a resignation is not possible. 159 In this case, by writing the confirmatory resignation letter late on the following day, the company was signalling that, even if there had been a withdrawal of the resignation, it would not be accepted.
[84] Consideration was also given in Ngo’s case to the decisions of Mohazab and Grout. Applying the principles set out in these two decisions to this matter, it cannot be said that the conduct of the employer resulted “directly or consequentially in the termination of the employment.” The resignation was given during a heated discussion between Mr Ilgoutz and Mr Szymanski. Neither party had intended that the outcome of that meeting would be the ending of the employment relationship. Both parties became upset and things were said by both parties in that context. There is nothing in the evidence before me that would substantiate a claim that there was a course of conduct or actions by the employer which resulted directly or consequently in the termination of the employment, that the employment relationship was not left voluntarily or that the ending of the employment relationship was the probably result of the employer’s conduct. This included what happened during the meeting on 9 December 2009 and the subsequent events on that day and the following day (10 December 2009).
[85] Finally, based on the facts of this matter, it can also not be said that Mr Szymanski had no effective or real choice but to resign. He resigned, voluntarily, in the heat of the moment and his resignation was not retracted, either swiftly or at all.
[86] Therefore, in terms of the requirements of s.386 of the Act, I find that Mr Szymanski was not dismissed, in that his employment was not terminated at the employer’s initiative (s.386(1)(a)) and that his resignation was not because he was forced to do so, as a result of conduct or a course of conduct engaged in by his employer (s.386(1)(b)).
[87] Accordingly, Mr Szymanski’s application is dismissed for want of jurisdiction. An order 160 giving effect to this decision will be issued separately.
COMMISSIONER
1 Transcript PN 220 - 232 and 486
2 Ibid PN 247 - 255
3 Ibid PN 478 - 479
4 Ibid PN 482 - 487
5 Ibid PN 490 - 493
6 Ibid PN 262 - 265
7 Ibid PN 487 - 489
8 Ibid PN 280 - 299
9 Ibid PN 497 - 502
10 Ibid PN 312 - 331
11 Ibid PN 339 - 341 and 451 - 468
12 Ibid PN 532 - 533
13 Ibid PN 347 - 349 and 538 - 539
14 Ibid PN 346 - 349
15 Ibid PN 349, 540 - 550
16 Ibid PN 349 and 791
17 Ibid PN 349 - 356
18 Ibid PN 804 - 807
19 Ibid PN 817 - 818
20 Ibid PN 356 - 360
21 Ibid PN 364
22 Ibid PN 813 - 816
23 Ibid PN 705 - 706 and 718 - 726
24 Ibid PN 546 - 556 and 768 - 771
25 Ibid PN 799 - 806
26 Ibid PN 813 - 816
27 Ibid PN 727 - 736
28 Ibid PN 751 and 767
29 Ibid PN 785 - 788
30 Ibid PN 370 - 384
31 Ibid PN 856 - 869
32 Ibid PN 877 - 898
33 Ibid PN 391 - 396 and Exhibit A4 at paragraph 21
34 Ibid PN 417 - 426
35 Ibid PN 431 - 436
36 Ibid PN 557 - 658
37 Ibid PN 676 - 680
38 Ibid PN 1005 - 1007
39 Ibid PN 1012 - 1016
40 Bid PN 1018 - 1030
41 Ibid PN 1034 - 1036
42 Ibid PN 1037 - 1039 and 1069
43 Ibid PN 1138 - 1157
44 Ibid PN 1537
45 Ibid PN 1538
46 Ibid PN 1539 - 1540 and 1544
47 Ibid PN 1158 - 1163
48 Ibid PN 1546 - 1547
49 Ibid PN 1552 - 1555
50 Ibid PN 1557 - 1559
51 Ibid PN 1576 - 1586
52 Ibid PN 1164 - 1165, 1173, 1574, 1587 - 1589 and 1622 - 1623
53 Ibid PN 1616 - 1617 and 1636 - 1638
54 Ibid PN 1174 - 1175, 1589 - 1598, 1630 and 1638
55 Ibid PN1618, 1640 - 1641
56 Ibid PN 1176 - 1177
57 Ibid PN 1620 - 1621
58 Ibid PN 1179
59 Ibid PN 1180 - 1186
60 Ibid PN 1652 - 1655
61 Ibid PN 1178, 1187 - 1205 and 1656 - 1657
62 Ibid PN 1216 - 1217
63 Ibid PN 1206 - 1212
64 Ibid PN 1659 - 1663
65 Ibid PN 1676 - 1682
66 Ibid PN 1218 - 1222
67 Ibid PN 1682 - 1695
68 Ibid PN 1736 - 1739
69 Ibid PN 1349 - 1367
70 Ibid PN 1334 - 1348
71 Ibid PN 1413 - 1419
72 Ibid PN 1231
73 Ibid PN 1250, 1255 - 1256
74 Ibid PN 1744 - 1756 and 1783
75 Ibid PN 1762 - 1778
76 Ibid PN 1382 - 1402
77 Ibid PN 1271 - 1281
78 Ibid PN 1319 - 1324
79 Ibid PN 1325 - 1334
80 Ibid PN 1709 - 1726
81 Ibid PN 1733 - 1735 and 1741
82 Ibid PN 1439 - 1446
83 Ibid PN 1449 - 1456
84 Ibid PN 1469 - 1473
85 Ibid PN 1474 - 1483
86 Ibid PN 1496 - 1503
87 Ibid PN 1504 - 1524
88 Ibid PN 1281 - 1297
89 Ibid PN 1298 - 1304
90 Ibid PN 1841 - 1858
91 Ibid PN 1869 - 1877
92 Ibid PN 1878
93 Ibid PN 1883 - 1888
94 Ibid PN 1898 - 1908
95 Ibid PN 1909 - 1918 and 1934
96 Ibid PN 1919 - 1935
97 Ibid PN 1939 - 1943
98 Ibid PN 1946 - 1965
99 Ibid PN 1967 - 2007
100 Exhibit A7 at paragraph 4 and Transcript PN 2046 - 2047
101 Ibid at paragraph 5
102 Ibid at paragraph 7 and Transcript PN 2048 - 2049
103 Transcript PN 2052 - 2053
104 Exhibit A7 at paragraphs 9 - 11 and Transcript PN 2049 - 2055
105 Ibid at paragraph 8
106 Ibid at paragraph 14 and Transcript PN 2057
107 Ibid at paragraphs 15 and 16 and Transcript PN 2058 - 2060
108 Transcript PN 2062
109 Ibid PN 2060
110 Exhibit A7 at paragraphs 18 - 22 and Transcript PN 2063 - 2064
111 Ibid at paragraph 26
112 Ibid at paragraph 24and Transcript PN 2067
113 Exhibit A1
114 Exhibit A7 at paragraph 27 and Transcript PN 2065
115 Ibid at paragraph 30
116 Ibid at paragraph 34
117 Ibid at paragraphs 12 - 13 and Transcript PN 2053
118 Ibid at paragraph 37
119 PR973462, 11 August 2006
120 (1995) 62 IR 200
121 Exhibit A7 at paragraphs 39 - 42 and Transcript PN 2064 - 2065
122 Ibid at paragraphs 43 - 45 and ibid PN 2072
123 Ibid at paragraphs 46 - 47 and Ibid PN 2073
124 Ibid at paragraph 50
125 Transcript PN 2075 - 2076 and Exhibit R4 at paragraphs 5 - 6
126 Ibid PN 2077 - 2078 and ibid at paragraph 6
127 Ibid PN 2078 - 2079 and ibid at paragraph 9
128 Transcript PN 2080
129 Ibid PN 2081
130 Ibid PN 2082
131 (2008) 171 IR 311
132 Transcript PN 2086 - 2090
133 Ibid PN 2090
134 (1999) 94 IR 375
135 Transcript PN 2094 - 2095 and Exhibit R4 at paragraph 15
136 Exhibit A2
137 Exhibit R1
138 Transcript PN 2096 - 2102
139 Exhibit A3
140 Transcript PN 2104 - 2106
141 Ibid PN 2107 - 2114
142 Ibid PN 2115 - 2117
143 [1995] IRCA 316 (30 June 1995)
144 [1995] IRCA 150 (19 December 1995)
145 Transcript PN 1919 - 1920 and 1925 - 1933
146 Ibid PN 1021 - 1030
147 Exhibit A6
148 [1992] ICR 183
149 Ngo at paragraph 12
150 Ibid at paragraph 13
151 Transcript PN 1952 - 1963 - 1965 and 1969 - 1972
152 Ibid PN 1921
153 Ngo at paragraph 13
154 Ibid
155 Transcript PN 1046
156 Ngo, at paragraph 18
157 Ibid at paragraph 13
158 Ibid at paragraph 16
159 Ibid at paragraph 17
160 PR504372
Printed by authority of the Commonwealth Government Printer
<Price code C, PR503883>
0
4
0