Mr Trevor Frederick Howley v Industrial Roadpavers (WA) Pty Ltd
[2010] FWA 9725
•20 DECEMBER 2010
[2010] FWA 9725 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Mr Trevor Frederick Howley
v
Industrial Roadpavers (WA) Pty Ltd
(U2010/800)
COMMISSIONER WILLIAMS | PERTH, 20 DECEMBER 2010 |
s.394 - Application for unfair dismissal remedy.
[1] Mr Howley, the Applicant, has applied for an unfair dismissal remedy pursuant to s. 394 of the Fair Work Act 2009 (the Act). The Respondent is Industrial Roadpavers (WA) Pty Ltd.
[2] The application was the subject of a conference before a conciliator however the matter has not been resolved. The matter was subsequently listed for hearing to determine the matter.
[3] At the hearing of this application Mr Howley was self represented. For the respondent Mr G Stubbs of Counsel, instructed by Dwyer Durack Lawyers, sought permission to represent the respondent. The notice of listing and the attached directions sent to the parties on 22 September 2010 included a direction that:
“A party seeking permission to be represented at the proceedings by a lawyer or paid agent under s.596 must apply in writing to Commissioner Williams, with substantial grounds, at least 10 days prior to the proceedings.”
[4] No advice prior to the time of hearing was given that the respondent would seek permission to be represented by a lawyer or paid agent. Notably the respondent had otherwise complied with the directions to provide witness statements within the specified time frame and following the initial notice of listing had sought and was granted a new listing date approximately one month after the initial date of listing.
[5] Mr Stubbs made submissions in support of him being permitted to represent the respondent. Mr Howley did not oppose the respondent being represented by a lawyer.
[6] Notwithstanding the concession by Mr Howley the tribunal is obliged to consider and decide the application for representation under section 596 of the Act.
[7] Having considered the submissions of Mr Stubbs I considered that on the basis of the witness statements provided by the applicant and the respondent, the substantive application appeared to be a relatively simple one largely involving a factual dispute over a single event, being a meeting between the applicant and the respondent's managing director.
[8] Consequently I was not satisfied that the representation of the respondent by a lawyer would enable this matter to be dealt with more efficiently given the relative simplicity of the matter. Nor, because Mr Howley was self represented, could it be said it was unfair not to allow the respondent to be represented.
[9] Consequently my decision was that permission would not be granted for the respondent to be represented by a lawyer, namely Mr Stubbs.
[10] Thereafter the respondent was represented by its Managing Director Mr Mark Skewes.
Background
[11] The Applicant commenced working for the Respondent on 13 April 1971 and at the time of his dismissal was employed as a Site Supervisor. The Respondents are engaged in earthmoving, road construction and plant hire work.
[12] On 10 May 2010 the Applicant returned to work after taking three weeks annual leave. The annual leave was granted in order for the Applicant to obtain his driver’s license. The Applicant had originally requested to take a longer period of leave, long service leave, in order to do so, but was granted 3 weeks annual leave instead.
[13] On 10 May 2010 the Applicant was instructed to attend a meeting with the Managing Director of the Respondent Mr Marc Skewes.
[14] The parties disagree as to what happened and what was said at this meeting. The Respondent says that the Applicant made it plain that he resigned. The Applicant says that he was dismissed by Mr Marc Skewes.
The Evidence
[15] Evidence was given by the applicant Mr Howley and for the respondent by Mr Marc Skewes and Mr Clint Skewes.
[16] Relevantly the evidence of all three focused on the meeting held early on the morning of Monday 10 May 2010.
[17] Mr Howley's evidence was that he was called in to the office of Mr Marc Skewes who he says was already an angry state following a confrontation with another employee. Mr Howley says the meeting commenced with a discussion about whether he had obtained his driver's license in the three weeks immediately prior to this during which he had been on annual leave.
[18] For reasons which are not important Mr Howley had not obtained his driver's license in that period. He says he explained this to Mr Marc Skewes who said that he had been told to get his licence whilst he was on leave.
[19] Mr Howley says that to this he replied that he had been able to take long service leave as he had originally requested he would have had enough time to have obtained his driver's license. He says Mr Marc Skewes then said that he had did not have any long service leave owing to him.
[20] Mr Howley says he could see that Mr Marc Skewes had no interest in talking rationally with him so he stood up and walked to the door.
[21] Mr Howley says at this point Mr Marc Skewes yelled at him 'get back here sit down I'm not finished with you yet '. Mr Howley says that he walked into the hallway at which point Mr Marc Skewes yelled to him 'to get fucking back in here I haven't fucking finished with you yet'.
[22] Mr Howley says that he continued walking down the office hallway and Mr Marc Skewes yelled after him ' if you keep walking your fucking terminated'. Mr Howley says that he did keep walking heading towards the office doorway and Mr Marc Skewes then yelled out very loudly 'if you go through that door your fucking terminated'. Mr Howley says that he continued through the door and then Mr Marc Skewes yelled out 'your fucking terminated'.
[23] Mr Howley says that as he went through the door he passed Mr Clint Skewes but he did not speak to him until later as he walked down the road and Mr Clint Skewes drove up to him in a company vehicle.
[24] The evidence of Mr Marc Skewes as to this meeting was that once Mr Howley was seated he asked him if he had obtained his driver's license over the three-week annual leave period immediately prior to the meeting. Mr Howley replied ‘no’.
[25] Mr Skewes says that he then went on to say that Mr Howley had now missed several agreed deadlines with respect to obtaining his driver's license and this wasn't good enough. Mr Marc Skewes says Mr Howley then said over him and with a raised voice ‘I'm going to now take my long service leave'. Mr Marc Skewes says he then told Mr Howley that he was the Manager of the company, not him and that he would make the decisions regarding his leave. At this point Mr Howley stood up and said 'I'm not listening to this shit, fuck this, I quit'.
[26] Mr Marc Skewes says he then followed Mr Howley to the front door of the office which Mr Howley had opened and Mr Clint Skewes was standing nearby. Mr Howley then said 'I'm fucking out of here, I quit, I'm not listening to his shit'.
[27] Mr Marc Skewes says that he then said to Mr Howley 'if you walk out the door there is no coming back'. Mr Skewes says then Mr Howley walked out and up the road.
[28] Mr Clint Skewes in his evidence says that he opened the door to the office to find Mr Howley standing there and he said to Mr Howley ‘what are you doing’ to which Mr Howley replied 'I'm fucking out of here I quit I'm not listening to his shit '.
[29] Mr Clint Skewes says that as Mr Howley was walking out the door Mr Mark Skewes said to him ' if you walk out that door there is no coming back '.
Consideration
[30] Section 394 of the Act provides that a person who has been dismissed may apply for an order granting a remedy.
[31] Section 386 sets out the meaning of dismissed. This provides that a person has been dismissed if their employment has been terminated on the employers’ initiative or the employee has resigned but was forced to do so because of conduct or a course of conduct engaged in by his or her employer.
[32] In this case Mr Howley says that he was terminated by Mr Marc Skewes who said words to that effect during their meeting. Contrary to this Mr Marc Skewes and Mr Clint Skewes’ evidence was that Mr Howley said words to the effect that he quit and then Mr Mark Skewes said to Mr Howley that if he left the office there was no coming back and that Mr Howley then continued on and left the office. Consequently the respondent says that in fact Mr Howley resigned and was not terminated on the employer’s initiative.
[33] It seems from the evidence of both parties it is agreed that there were only the three persons namely Mr Howley, Mr Marc Skewes and Mr Clint Skewes who witnessed the critical meeting on 10 May 2010.
[34] In this case whilst there is relatively limited evidence before the tribunal, that evidence directly deals with what Mr Howley and Mr Marc Skewes said to each other on that day.
[35] Importantly there are two witnesses, Mr Marc Skewes and Mr Clint Skewes, who agree on what was said and their evidence is directly contrary to the evidence of Mr Howley. There was nothing in the evidence, nor the manner of giving that evidence, of Mr Marc Skewes or Mr Clint Skewes that leads me to conclude that they were not being truthful. However the same can be said for my observation of the evidence and the manner of giving evidence of Mr Howley.
[36] In this situation then the weight of the evidence favours the version of events as recounted by two witnesses namely Mr Marc Skewes and Mr Clint Skewes over the alternative version of events as recounted by a single witness, Mr Howley.
[37] Therefore my finding is that Mr Howley did say words to the effect that he ‘quit’ and he was ‘out of there’ and that Mr Mark Skewes did not say that Mr Howley was terminated or words to that effect.
[38] Therefore my conclusion is that Mr Howley was not terminated on the respondents initiative.
[39] Mr Howley gave further evidence regarding the background to him needing to obtain a drivers license and not being allowed to take an extended period of long service leave rather than three weeks annual leave and also about issues to do with outstanding payments of a bonus and ‘dividends’. I have considered all of this evidence when considering the secondary question as to whether or not, within the meaning of s.386 (1) (b) Mr Howley resigned from his employment but was forced to do so because of conduct or a course of conduct engaged in by his employer. I have concluded that the conduct Mr Howley complains of, much of which is disputed by Mr Marc Skewes, does not at all amount to conduct or a course of conduct that could be said to have forced Mr Howley to have resigned from his employment.
[40] My conclusion then is that within the meaning of s. 386 Mr Howley has not been dismissed by the respondent.
[41] Consequently Mr Howley is not able to make this application under s. 394 and this application will now be dismissed.
[42] I note that this application deals only with the question of whether or not Mr Howley was unfairly dismissed. This application does not deal with and involves no conclusions as to whether or not there are any outstanding payments of any kind owed to Mr Howley by the Respondent. If Mr Howley wishes he is still entitled to seek advice and assistance from the Fair Work Ombudsman with respect to these matters.
COMMISSIONER
Appearances:
Mr T Howley, the Applicant, on behalf of the Applicant
Mr C Skewes, Managing Director, Industrial Roadpavers (WA) Pty Ltd on behalf of the Respondent
Hearing details:
2010.
Perth:
December 6
Printed by authority of the Commonwealth Government Printer
<Price code C, PR505150>
0
0
0