Mr Tim Merriman v Goodyear & Dunlop Tyres (Aust) Pty Ltd T/A Beaurepaires for Tyres

[2010] FWA 2913

[2010] FWA 2913

FAIR WORK AUSTRALIA

DECISION

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

Mr Tim Merriman
v
Goodyear & Dunlop Tyres (Aust) Pty Ltd T/A Beaurepaires For Tyres
(U2009/13198)

COMMISSIONER CARGILL SYDNEY, 15 APRIL 2010

Termination of employment.

[1] This decision arises from an application by Mr T. Merriman (the applicant) pursuant to section 394 of the Fair Work Act 2009 (the Act) for relief in relation to the alleged termination of his employment by Goodyear & Dunlop Tyres (Aust) Pty Ltd (the respondent or the company). The application was lodged on 26 October 2009.

[2] The respondent raised a jurisdictional objection. It claimed that the applicant had not been dismissed at the respondent’s initiative nor had he been forced to resign because of conduct or a course of conduct engaged in by the respondent. It is this issue which is dealt with in this decision.

[3] The matter was heard in Sydney on 1 April 2010. It proceeded by way of a hearing as I considered that it was appropriate to do so having taken into account the parties’ views as well as the factors in section 399 of the Act.

[4] The applicant was represented by Mr Pinchen, agent. The respondent was represented by Mr Grinberg, a human resources specialist with the company.

[5] The applicant gave evidence. His witness statement is Exhibit Applicant 1 and his oral evidence is at PN 81-504 of Transcript.

[6] Two witnesses gave evidence on behalf of the respondent. These are:

Mr Barr	Regional Manager with the respondent. His witness statement is Exhibit Respondent 3 and his oral evidence is at PN 513-876 of Transcript.
Mr Bubalo	Store Manager of the respondent’s Chatswood store and Team Leader. His witness statement is Exhibit Respondent 5 and his oral evidence is at PN 878-1171 of Transcript.

SUMMARY OF FACTS AND EVIDENCE

[7] The applicant began his employment with the respondent in January 2008. At that time he was engaged as a tyre fitter and was based at Chatswood where his Store Manager was Mr Bubalo. Mr Bubalo’s evidence is that the applicant demonstrated great natural ability for sales and customer service and he believed that the applicant was over-qualified as a tyre fitter.

[8] Mr Bubalo’s evidence is that, during the applicant’s time at the Chatswood store, there was conflict between the applicant and the store’s Assistant Manager. His evidence is that this resulted from the applicant’s refusal to take directions from the Assistant Manager.

[9] In May 2008 the applicant was promoted to the position of Salesperson /3IC at the Crows Nest store. In March 2009 he was further promoted to be the Assistant Manager of that store.

[10] Mr Bubalo’s evidence is that, from the time the applicant moved to Crows Nest, they remained in close contact with regular phone calls sometimes as often as every second day, as well as occasional social meetings. The applicant agreed that he telephoned Mr Bubalo on a regular basis. His evidence is that Mr Bubalo was very helpful to him and he considered him to be a friend. Mr Bubalo’s evidence is that he was very proud of the applicant and believed him to be very talented and charismatic.

[11] On 1 June 2009 the applicant was promoted to be Store Manager at Maroubra. Mr Bubalo’s evidence is that he believed that the applicant did not have enough experience for such a role at that time and conveyed this view to the then Regional Manager.

[12] The applicant’s evidence is that initially he found it difficult to manage but accepted the challenge and was able to position the Maroubra store at the top of the region. The applicant was then offered a transfer to the Brookvale store where the Store Manager, Mr Orlando, was being demoted to Assistant Manager as a result of his poor performance. The applicant’s evidence is that this offer was made to him because he had done such a good job at Maroubra. He commenced at Brookvale in the second week of July 2009.

[13] The applicant’s evidence is that, prior to moving to the Brookvale store, he had a good relationship with Mr Orlando. However, shortly after arriving there he discovered that paperwork was not being completed properly, staff were not wearing protective gear, the store was messy and losing money and customers were demanding illegal cash jobs.

[14] The applicant’s evidence is that he spoke to Mr Orlando about what was expected of him, however, Mr Orlando’s conduct and attitude did not improve. The applicant’s evidence is that, after discussing the matter with the then Regional Manager, he began disciplinary action against Mr Orlando by issuing him with a verbal warning. A few days later Mr Orlando complained of a back injury. He had four weeks off, two weeks on light duties and then took three weeks annual leave.

[15] Mr Bubalo’s evidence is that, following the applicant’s transfer to Brookvale, he received telephone calls from both the applicant and Mr Orlando. His evidence is that both indicated that they were struggling to work together. Mr Bubalo offered his assistance as a mediator.

[16] At the end of August the applicant completed his probationary period as a new Store Manager. His evidence is that the then Regional Manager attended the Brookvale store and carried out an audit. The Regional Manager indicated that all was well, the applicant was confirmed in his position and was given a pay rise.

[17] Shortly afterwards the Regional Manager was demoted and Mr Barr’s responsibilities as Regional Manager were expanded to cover additional stores including Brookvale.

[18] On 16 September 2009 there was a meeting of store managers throughout the region. Mr Barr’s evidence is that this was to enable the managers to meet one another and for him to impart his expectations to the group. His evidence is that he advised the managers that he would carry out any formal disciplinary action that may be necessary. The applicant denied that Mr Barr made any such statement at the meeting.

[19] During the meeting on 16 September Mr Barr announced that a number of managers had been appointed as Team Leaders, each having a number of stores within their area of responsibility. Mr Bubalo was one of those appointed and the Brookvale store came within his area. Mr Bubalo’s evidence is that he saw his role as including being available to assist other store managers in whichever way he could.

[20] Also during the 16 September meeting Mr Barr undertook to visit each store and spend time with the respective managers. His first visit was to the Brookvale store. This took place on 21 September. Mr Barr’s evidence is that he spent the day with the applicant during which time he conducted a store audit and discussed the results with the applicant.

[21] Mr Barr gave evidence that he and the applicant discussed the need for the applicant to receive further guidance and it was agreed that, upon the applicant’s return from two weeks annual leave, Mr Bubalo would spend a week at the Brookvale store. The applicant denies that there was any discussion about Mr Bubalo coming to Brookvale. The applicant’s evidence is that, when he returned from leave, he was confused about Mr Bubalo’s presence at Brookvale. Nevertheless he was appreciative as he knew there would be a lot of work to catch up on.

[22] Meanwhile, a week or so before the applicant went on leave, Mr Orlando returned from his period of leave. The applicant’s evidence is that there was no improvement in Mr Orlando’s attitude and work standards. The applicant also gave evidence that Mr Orlando had damaged company property and, he suspected, was stealing from the company. The applicant gave Mr Orlando a first and final written warning, Exhibit Respondent 4.

[23] Mr Barr’s evidence is that he directed the applicant not to discipline Mr Orlando as he had concerns about the process and the basis for the warning. He informed the applicant that any disciplinary action was to be be carried out by himself, not the applicant.

[24] Mr Orlando was to be in charge of the Brookvale store while the applicant was on leave. The applicant’s evidence is that he advised Mr Orlando that the only thing he expected whilst he was on leave was that Mr Orlando should follow company procedures with regard to paperwork.

[25] The applicant’s evidence is that, when he returned from leave on 19 October 2009, he discovered that the Vehicle Inspection Reports (VIRs) had not been properly completed whilst he was away. His evidence is that he was angry about this. The applicant confronted Mr Orlando about the issue and, in the course of the confrontation, which included some swear words, threw the box containing the VIRs on the floor. The applicant’s evidence is that, at the time, he was standing about six metres away from Mr Orlando and a little further away from another employee, Mr Billy Allen. His evidence is that there were no customers in the customer service area at the time.

[26] Mr Bubalo’s evidence is that the applicant was very loud and aggressive and yelled at both Mr Orlando and Mr Allen. The box of papers was thrown in an aggressive manner and landed about midway between the applicant and Mr Orlando. Mr Bubalo’s evidence is that he was shocked at the confrontation. His evidence is that it was so loud it could have been heard in the customer service area. Mr Bubalo’s evidence is that there were customers there at the time. Further, a prospective employee, Mr Gayford, was being interviewed by Mr Bubalo. This person also observed the confrontation.

[27] Mr Bubalo’s evidence is that both Mr Orlando and Mr Allen were shaken and upset. The applicant denies this. His evidence is that Mr Allen was smiling about the incident.

[28] Mr Bubalo’s evidence is that, after checking on Mr Orlando, Mr Allen and Mr Gayford, he telephoned Mr Barr to tell him of the incident. Mr Barr’s evidence is that he contacted the human resources department (HR) for advice about what to do. That advice was to suspend the applicant on pay for a few days for him to think about things. There would then need to be an investigation into the issue.

[29] At Mr Barr’s direction, Mr Bubalo informed the applicant that he was suspended for three days with pay. He also informed the applicant that he was to meet with Mr Barr at the Chatswood store on 22 October. Mr Bubalo’s evidence is that he spent about 30 minutes talking to the applicant about his behaviour and the incident. The applicant’s evidence is that Mr Bubalo told him that his job was at risk. Mr Bubalo’s evidence is that at no stage did he advise the applicant that his job was in jeopardy. Rather, he informed the applicant that both he and Mr Barr were committed to supporting and coaching him.

[30] The applicant’s evidence is that he was upset and phoned Mr Barr to remonstrate with him. His evidence is that Mr Barr told him to think about what had occurred and his future in the business. The applicant’s evidence is that Mr Barr wouldn’t let him talk and was very curt with him. Mr Barr’s evidence is that he told the applicant not to worry, to think about things and to meet in Chatswood three days later.

[31] Both witnesses agree that the applicant asked if he was going to be sacked. Mr Barr’s response was that he needed to investigate the incident and speak further to HR. Mr Barr’s evidence is that he told the applicant that he wasn’t going to be dismissed.

[32] The applicant was required to hand over the company ute, credit and fuel cards and mobile phone whilst he was suspended. The evidence is that this is also generally required when managers go on leave so that the car and other property is available for use by other employees at the store during the period of absence.

[33] During a telephone conversation on 20 October 2009 the applicant asked Mr Bubalo to contact Mr Barr. The applicant’s evidence is that he questioned Mr Bubalo as to whether he had over-exaggerated the incident when he reported to Mr Barr the previous day. The applicant’s evidence is that he asked Mr Bubalo to help him retain his position. Mr Bubalo’s evidence is that the applicant pleaded with him to contact Mr Barr and inform him that nothing had happened. His evidence is that he told the applicant that he would support him as a friend but wouldn’t lie for him.

[34] The applicant’s evidence is that, although at the time of the incident on 19 October he had not believed his behaviour to have been unacceptable, during the period of suspension he realised the seriousness of the situation and that his career could have been ruined.

[35] Mr Barr’s evidence is that he again contacted HR for advice. He decided that there would need to be some form of disciplinary action but recognised that the applicant had not received any formal managerial training during his employment with the company. Mr Barr’s evidence is that he intended to direct the applicant to work at Chatswood for a period of time under the “close hands-on instruction” of Mr Bubalo. This was not to involve any reduction in pay.

[36] Mr Barr’s evidence is that another issue arose which prevented him attending the Chatswood store on 22 October. He asked Mr Bubalo to have the applicant call him. Mr Bubalo’s evidence is that he also told the applicant that he was to stay on at Chatswood for a few days until Mr Barr could speak to him in person. Mr Bubalo’s evidence is that he told the applicant to make the telephone call from the back office where he would have privacy. His evidence is that he did not overhear any of the call as he went about his work in his own office. He estimated that the applicant was on the telephone for about 15 minutes.

[37] The applicant’s evidence is that, during the telephone conversation, Mr Barr told him he had two choices: resign on the spot and leave on friendly terms; or, be sacked and never work in the industry again. He also testified that Mr Barr told him he was nothing but trouble and a liability to the business. The applicant’s evidence is that he tried to argue his case and begged to stay with the company but Mr Barr told him he had no case and was lucky to be given any choice at all. His evidence is that Mr Barr was very cold, stern and rude towards him, yelled at him and talked over him.

[38] The applicant’s evidence is that he was so scared of having his life ruined that he wrote out his resignation and left it with Mr Bubalo who was on the phone at the time. He commented to one of the other employees that he was heartbroken and couldn’t believe what had happened.

[39] The applicant’s evidence is that he was in shock. He didn’t think to contact Mr Barr again. His only later contact with the company concerned his holiday pay. The applicant’s evidence is that he contacted Mr Pinchen later that day and engaged his services.

[40] Mr Barr’s version of the telephone conversation with the applicant is very different. His evidence is that he apologised to the applicant for not being at the Chatswood store and told him to attend for work at that store to receive guidance from Mr Bubalo. Mr Barr’s evidence is that he informed the applicant that he would conduct a disciplinary meeting with him early in the following week.

[41] Mr Barr denies saying that the applicant might be dismissed. His evidence is that he clearly said he wouldn’t be sacked but that there would be a disciplinary process which would involve HR. Mr Barr denies that he didn’t give the applicant a chance to argue his case. His evidence is that he did provide him with such an opportunity but the only thing that the applicant raised was that there should be no disciplinary process about the incident.

[42] Mr Barr’s evidence is that the applicant said he would resign. Mr Barr told him he was free to do that if he wanted but advised him to take time to think about what he wanted to do. He asked the applicant to ring him back later. There was no further contact from the applicant. Mr Bubalo later rang and advised him that the applicant had left a resignation letter on his desk.

[43] There was a deal of evidence about the degree to which the applicant had been properly trained during the course of his employment and the question of who was responsible for any failings in this regard. Although this issue is important in the overall context of the applicant’s employment, it is not directly relevant to the matter which is the subject of this decision.

SUBMISSIONS ON BEHALF OF THE APPLICANT

[44] A written outline of submissions was provided prior to the hearing. It was marked as Exhibit Applicant 2. Mr Pinchen also made oral submissions. It should be noted that the written outline addresses a number of factors which are relevant to the substantive application. I do not include those in the following summary of submissions.

[45] It is submitted that the applicant had been put in a position of fear and intimidation where he felt forced to resign due to damaging repercussions if he was dismissed. He was under the impression from Mr Barr that, if he did not resign, the company would do everything in its power to tarnish his reputation and make it almost impossible to work in the industry again.

[46] It is also submitted that there was nothing to indicate that the applicant intended to leave his employment with the respondent had he not been told that his career was going to be destroyed.

[47] Reference is made to the provisions of section 386(1) of the Act and to the following decisions: ABB Engineering Construction Pty Ltd v Doumit [Print N6999] (ABB Engineering); Stubbs v Austar Entertainment Pty Ltd [Print Q0008]; and Mosey v Australian Customs Service (2002) 116 IR 1. It is submitted that the applicant had been constructively dismissed. The applicant had been forced out of his employment because he had been led to believe that he would lose everything if he was dismissed by the company. He had no option but to resign out of fear. It is submitted that the respondent chose to ignore its own established disciplinary processes.

[48] Further it is submitted that the respondent’s conduct demonstrated that it no longer intended to be bound by some essential terms of the contract of employment. It removed the credit card and company vehicle from the applicant’s possession. The applicant could not expect to feel trusted or valued as an employee because of this inappropriate behaviour by the respondent.

[49] Mr Pinchen noted that the essential question was whether the applicant or Mr Barr should be believed in respect of their different versions of the telephone conversation on 22 October. Mr Pinchen submitted that the applicant had been a forthright, open and transparent witness who had been more credible than Mr Barr.

[50] Mr Pinchen submitted that the evidence showed that Mr Barr clearly did not want to retain the applicant in the company’s employ. Mr Barr is a busy manager and the applicant was “high maintenance”. Mr Pinchen noted that there was a culture of swearing in the workplace. He further noted that the VIRs were important documents and the applicant had been understandably upset that they had not been properly completed.

[51] Mr Pinchen submitted that, on the balance of probabilities, the applicant’s version of events should be preferred. He submitted that Mr Barr could have refused to accept the applicant’s resignation and could have stopped the telephone conversation on 22 October. However, both Mr Barr and Mr Bubalo wanted the applicant out of the business.

SUBMISSIONS ON BEHALF OF THE RESPONDENT

[52] A written outline of submissions was provided prior to the hearing and was marked Exhibit Respondent 6. Mr Grinberg also made oral submissions. As with the applicant’s outline of submissions, some of the material in Exhibit Respondent 6 went to the substantive application. That has not been included in the following summary.

[53] The respondent denied that it engaged in conduct, or a course of conduct, that forced the applicant to resign. Rather the employment relationship ended at the voluntary instigation of the applicant. The respondent submitted that there was an alternative available to the applicant which was to participate in a disciplinary process, receive a warning and engage in additional training. It is submitted that this alternative fatally undermines the applicant’s assertion that he was forced to resign.

[54] Mr Grinberg submitted that the evidence showed that the respondent was undertaking a proper disciplinary process into the applicant’s conduct on 19 October and, in the circumstances, his suspension was entirely appropriate.

[55] Mr Grinberg submitted that Mr Barr’s version of the telephone conversation on 22 October should be preferred to that of the applicant. He noted that the applicant had made no attempt to retract his resignation.

[56] Mr Grinberg also referred to and relied on the decision in ABB Engineering and others which are analysed in O’Meara v Stanley Works Pty Ltd [PR973462].

CONCLUSIONS

[57] Section 385 of the Act provides that a person has been unfairly dismissed if Fair Work Australia is satisfied as to four factors. The first of these is that the person has been dismissed.

[58] Section 386 sets out the meaning of dismissed. Subsection (1) provides:

“(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.”

[59] Although the letter of resignation was not in evidence, there is no dispute that the applicant resigned from his employment. The question is whether he was forced to do so because of conduct, or a course of conduct, engaged in by the company. The answer to that question depends upon whose version of the telephone conversation of 22 October 2009 between the applicant and Mr Barr I prefer.

[60] I have carefully considered the evidence given by the witnesses as well as the overall context and circumstances of the matter. I prefer the evidence of Mr Barr to that of the applicant. The applicant’s version of the telephone conversation is simply not credible. Mr Barr had taken advice and decided to undertake a perfectly reasonable and appropriate disciplinary process. There is no rational explanation for him to have suddenly adopted a threatening, aggressive and intimidatory stance towards the applicant. I do not accept that he did so.

[61] Perhaps the applicant resigned in the heat of the moment and later regretted it. However, it is not up to Mr Barr or Mr Bubalo to pursue the applicant and talk him out of his resignation. There was nothing in the evidence to suggest that the applicant was an employee with any particular vulnerability such that it would have been prudent to have persuaded him to retract his resignation. Mr Barr suggested that he take time to think about what he wanted to do. It is not his responsibility that the applicant chose to take precipitate action.

[62] Contrary to the submissions put on behalf of the applicant, there is nothing sinister in the respondent’s actions in asking the applicant to return the company vehicle and other property while he was suspended. As mentioned earlier, the evidence is that this was also required of employees during periods of leave.

[63] It should be noted that the applicant was understandably upset about the VIRs which led to the incident on 19 October. Whether or not his response was appropriate in the circumstances would have been relevant to the disciplinary process. It is not however relevant to the question to be determined in this decision.

[64] I am not satisfied that the applicant was forced to resign because of conduct, or a course of conduct, engaged in by the respondent. It follows that the applicant was not a person who was dismissed.

[65] There is no jurisdiction to deal with the substantive application. The application is dismissed.

COMMISSIONER

Appearances:

G. Pinchen, agent, for the applicant

A Grinberg for the respondent.

Hearing details:

2010.

Sydney,

April 1.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR996001>