Mr Warren Taylor v Jay & Jay Industries

[2014] FWC 2420

[2014] FWC 2420

FAIR WORK COMMISSION

DECISION

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

Mr Warren Taylor
v
Jay & Jay Industries
(U2013/12988)

COMMISSIONER SIMPSON BRISBANE, 16 APRIL 2014

Application for relief from unfair dismissal.

[1] This decision, now edited, was issued during proceedings on 11 April 2014.

Background

[2] The matter concerns an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Warren Taylor, who alleges that the termination of his employment with Jay & Jay Industries (the Respondent) was unfair in accordance with the definition contained in s.385 of the Act. The application was filed on 28 August 2013. The matter was listed for conference on 21 October 2013 where the matter did not settle. A further conference was listed on 7 April 2014, again where the matter did not settle.

[3] The matter has proceeded for hearing on the jurisdictional question as to whether or not there was a termination at the initiative of the employer or a resignation as asserted by the Respondent - and also on the merits, if the matter does progress to that point. The applicant commenced his employment with the respondent on 17 November 2010. It is common ground that the relationship ended on 9 August 2013 however, it is disputed as to how it ended.

[4] The Respondent is a small business employer. According to the response filed by the respondent it had only three employees at the time of dismissal. There has been three witnesses who have provided statements and given oral evidence today. Mr Taylor, in his own case, and Mr Jamie Montague and Ms Kimberley Moore for the Respondent.

Evidence

[5] There is really two key dates that are important. The first is 8 August 2013, the day before the ending of the employment relationship. Mr Taylor has given evidence that he woke up that day and noticed his vehicle had been stolen. He said that at 6.30am he contacted the police and called Jamie Montague and advised that he would be coming in late. He said he knew he had important deliveries to do that day. He said that when he arrived at work at 9.30am he had let Jamie know that as soon as he finished his deliveries he would need to go home to call his insurance company and further proceedings with the police.

[6] The applicant said that at approximately 2.30pm he arrived back at the respondent’s workplace and had a short conversation with Jamie Montague. He said he explained to Mr Montague what he had to do. He claimed that Jamie intimidated him, was very rude and arrogant toward him and yelled at him to go, although I note the statement does not provide any great particularity about the nature of what he claimed the intimidation and rude and arrogant behaviour was. There was some further evidence on that orally today. Mr Montague’s version of the event that day was that he was contacted at 7.14am by Mr Taylor to inform him that his residence had been entered, some items stolen, including a set of car and home keys. He said Mr Taylor advised him he had contacted the police and he would be late.

[7] Mr Montague said that he assured the applicant there would be no problem, that he should attend to his family and the police and come to work when he could. Mr Montague said the applicant arrived at around 10.20am and that he was agitated and concerned about the home invasion and expressed his opinion almost immediately that he had every right not to come to work and he could leave any time. Mr Montague claimed that he told the applicant that if he was concerned then he could go home and deal with everything. Mr Montague claimed that it was Mr Taylor that decided he would work a number of hours to undertake the delivery portion of his employment and would then think about going home.

[8] This was ultimately consistent with evidence Mr Taylor gave himself, albeit not during cross-examination but in response to a direct question from the Commission while he was cross-examining Mr Montague, to the effect that Mr Taylor conceded that he did indicate he would come in to do part of his duties that day voluntarily. Mr Montague claimed at this point he instructed the applicant to call his wife, using the supplied mobile, and make sure his wife had both the respondent’s office phone number and Mr Montague’s personal mobile. Mr Montague said that he further suggested to Mr Taylor that he inform his wife if she was concerned, or there was anything he could do to help, to call him and he would come straight down.

[9] Mr Montague’s evidence was that at approximately 1.45pm Mr Taylor returned from the delivery run in a highly agitated state. He said when he asked Mr Taylor if there was any problems on the run and did everything go smoothly that Mr Taylor responded by flinging his clipboard in Mr Montague’s direction and slamming paperwork on the desk and said, “Everything is fucking fine.” Mr Montague said Mr Taylor then stalked away. Mr Montague said the administrative assistant, Ms Moore, was present at the time and that Mr Montague said he asked Mr Taylor if he was stressed. Mr Montague said that Mr Taylor turned around and walked toward him in an aggressive manner and responded, “Of course I’m stressed.” Mr Montague claimed the applicant then went on to berate him.

[10] Now, the specifics of the language involved in that exchange is set out at the top of the second page of the statement that has been provided by Mr Montague in his version – and I won’t repeat the full extent of it but that Mr Taylor’s berating of him was, in his claimed evidence, quite aggressive. Mr Montague claimed he had previously told Mr Taylor that if he felt he needed to be at home then there was no problem and he could attend to his personal business. Mr Montague said he did not understand what Mr Taylor’s reasoning was for asserting repeatedly his right to leave work. He said Mr Taylor volunteered to complete the small part of his duties, which I have already said was again consistent with what the evidence has indicated today.

[11] Mr Montague’s statement then goes on, in some detail, to go further in describing more aggressive statements directed at him by Mr Taylor. I won’t repeat all of that but that is the second paragraph of the second page of the statement of Mr Montague. The version of Mr Taylor in regard to the exchange at the end of 8 August was really to the effect, as I had already set out, that he was directed to go by Mr Montague. Mr Montague’s evidence has been today that he did firmly tell Mr Taylor to go but that was only in the context of Mr Taylor having berated him over an extended period. There was some contest in the evidence about the period of that exchange.

[12] Mr Taylor’s evidence was that initially he thought it might have been for a couple of minutes. Mr Montague’s evidence was that it was longer than that. It appeared that Mr Taylor’s evidence shifted, that it might have been perhaps up to five minutes. Ms Moore gave evidence that she thought it was more than that. In terms of 9 August, the following day, Mr Taylor said that he went to work as usual and arrived at 7.00am and he said that Mr Montague had said that he had to talk to him. Mr Taylor said that during the conversation Mr Montague belittled him with his words and continued to be rude and arrogant and showed no compassion.

[13] Mr Taylor said that he felt it was leading up to an argument and he felt threatened and thought it was just best that he go home as he felt Mr Montague was pushing for a heated argument, which he did not want. Mr Taylor said he informed Mr Montague that he was going home. Mr Taylor has claimed that he was saying this and that Mr Montague said to him, “If you walk out the door leave the work phone here and don’t come back.” Mr Taylor has said that he dropped the phone off and went home to prevent any argument and to let Mr Montague cool off as he felt that that was the best option. Mr Taylor said that he felt like he had been fired on the spot.

[14] There is an inconsistency in the statement of Mr Taylor in that he says he, “Dropped the phone off and went home” but it appears from his statement that that was after he said he was, “Fired on the spot.” It would appear Mr Taylor’s version would not have been possible, perhaps that was a clerical or administrative error in the way the statement was prepared but I will deal with that later in my conclusions.

[15] Mr Montague’s version of events that day was that the next morning Mr Taylor arrived at his usual 7.45am, not 7.00am as stated by Mr Taylor, and entered the office and said, “Morning” in a subdued tone and proceeded to walk past into the factory. Mr Montague said that he called out to Mr Taylor and said, “We need to talk about yesterday before we start anything else.” Mr Montague claimed the applicant responded by saying, “Oh, for fuck sake.” Mr Montague claimed he turned and came back to the desk space and said, “What?” and that he claimed he said to Mr Taylor, “I don’t know what you think your position at the company does not entitle you to do or not do but I know what right you have to speak to me like you did yesterday but this is the second time we are having this conversation and I do not want to ever have it a third.” Mr Montague’s evidence was that this was in the context of another conversation that had occurred over 12 months previously involving his father, which had become heated, involving Mr Taylor, over a separate issue.

[16] Mr Montague’s evidence was that again Mr Taylor was aggressive toward him and said, “I told you yesterday that it is my fucking right to take off when this shit happens. I didn’t have to come to work yesterday and I can go home now if I choose and there is nothing you can do about it.” Mr Montague said that he did not understand this as no-one had demanded that he be at work the previous day. Mr Montague’s evidence was that he took exception to the way Mr Taylor was speaking to him. He claimed that Mr Taylor proceeded to poke his finger in his face and said, “Well, I think I am going to go home and you can think about what fucking position that leaves you in.”

[17] Mr Montague said that again he took issue with the way Mr Taylor was speaking to him and he claimed that Mr Taylor then said, “Well, you can just get off your fucking high horse and think about how you can get by without me because I’m leaving.” Mr Montague claims to have then said, “If he was going to talk to me in that way and if he was going to walk out on me after delivering that ultimatum then I took that as quitting. I then went on to explain to Mr Taylor that we need to talk this through as we cannot continue working under this level of aggression from you in the workplace.” Mr Montague claims Mr Taylor responded by saying, “Fuck you. I don’t have to put up with this shit. I’m done.”

[18] Mr Montague said he then asked Mr Taylor to return the company phone and claims Mr Taylor threw it on the desk and walked out the door without another word. Mr Montague claimed to have been totally mystified as to Mr Taylor’s response but that it was clear to him Mr Taylor had chosen to quit of his own free will.

[19] In terms of the events of the following Monday the 12th August, Mr Taylor has said that he went into his work to see if Mr Montague had cooled down and to see what was going on. Mr Taylor said that he had noticed that Mr Montague had his “mate” working there. Mr Taylor said that Mr Montague told him his pay would be sorted and he would get a separation certificate. He said that he then handed his work shirts in as he had seen that he had been replaced and the separation certificate was for Centrelink.

[20] The applicant claimed to be astonished when he received his separation certificate which said that he had ceased working voluntarily when in fact he had been sacked. The applicant said that he would never just quit or leave his workplace and never had in the past. Mr Montague said in his evidence that when Mr Taylor returned to the work premises at 9.00am on the following Monday he was in casual clothes, returned his uniforms – and Mr Montague said he asked, “Why are you doing this, Warren? We could sort this out if we talk” and Mr Taylor calmly told him that he was returning the uniforms because he did not want to work for someone on their high horse.

Conclusions

[21] Section 396 of the Act requires that I have to deal with the jurisdictional issue regarding whether or not there was a termination by the employer or a resignation before I can consider the substantive issues. I must determine on the balance of probabilities which version in the contested facts, as provided, is more likely to be the correct version based on the evidence that I have heard and been provided with. This involves a balancing of the credibility of the respective witnesses in the competing cases. It naturally follows that I am not making a decision beyond reasonable doubt, as might be the case in a criminal matter. I have just got to make a finding which version is more likely to be right.

[22] I have considered all of the statements, submissions and oral evidence, but I will go through the issues that I have relied upon in trying to make a finding on credit in my mind as to which version is more likely the right one.

[23] Firstly, Mr Taylor’s statement, as provided, didn’t describe, in anywhere near the same level of detail as the statement of Mr Montague, the specific events concerning 8 and 9 August 2013. Mr Taylor did admit today, on a number of occasions, there were errors in his statement. For example, concerning the time for collecting the separation certificate; the time of events, such as when he left work on the Thursday, and the time that he commenced work as being 7.45am on the Friday, not 7.00am as his statement said.

[24] Mr Taylor also admitted an error in reference to Mr Montague’s failure to show compassion to him regarding the events. The statement Mr Taylor provided appeared to indicate that this was in reference to events on the Friday, when it became apparent, and Mr Taylor confirmed today, that he was actually referring to the Thursday. Mr Taylor also conceded in cross-examination that Mr Montague said words to the effect of, “That if he walked out that day” – and I am now talking about the Friday, that Mr Montague would, “consider it resigning.” But then in his evidence, after having appeared to accept that, he then retracted that concession and said something different, which was that his version was that he was going to go home until Mr Montague had cooled off.

[25] That appeared to indicate to me some inconsistency or uncertainty in comparison to what appeared to me to be fairly consistent evidence from Mr Montague in terms of his version of the events. Mr Taylor also said he was walking away that day because of a concern he had the situation could lead to fisticuffs. Mr Taylor has conceded today that he said words consistent with Mr Montague’s statement concerning the Monday, as I understood it from the evidence, to the effect of saying he, “Didn’t want to work for someone on their high horse.” That was conceded. Now, admittedly, that was on the Monday following the Friday in which, Mr Taylor claimed he was sacked. But it would appear to me, having made that concession, that it is more logical that you would use that expression in a context where you have resigned rather than been terminated.

[26] Now, I can’t say for sure that’s right but it is just another factor which leads me to think, on balance, Mr Montague’s version should be preferred. Mr Taylor also agreed, as I said earlier, that he did agree to come in and perform some duties on the Thursday. There is no doubt in my mind that Mr Taylor had every reason to feel agitated on the Thursday given the events that, there is no contest, happened at his private residence. It would be very distressing. It appears from the evidence, certainly claimed by Mr Montague, he made attempts to try to accommodate that. It would certainly explain some level of distress that you would be suffering from that day.

[27] But I have got to say the concession that you made that you would work for part of the day on the Thursday, albeit the events that were happening at home and no doubt concern about your wife – it explains Mr Montague’s evidence that he couldn’t understand the inference that appeared to be coming from your evidence that you were in some way being forced to work that day. There is just an inconsistency, that I see, from what appears to be agitation about being forced to be there when your evidence is that you accepted that you agreed to be there, at least for part of the day.

[28] Mr Taylor has also made clear the claim that he didn’t swear. Swearing of itself has often been found not to be a basis for termination. It is not that uncommon in workplaces but the real issue here is there is a contradiction between what Mr Taylor says and the evidence of Mr Montague and Ms Moore. Now, you say you didn’t swear but the difficulty is Ms Moore has asserted in an affidavit and then adopted today, that you did swear - as did Mr Montague. And when you had an opportunity to cross-examine her you didn’t put it to her that she wasn’t being truthful about that. So in those circumstances I really don’t have a choice but to prefer the likelihood that you did swear.

[29] The difficulty arising from that is, of course, that if I prefer the evidence of the other witnesses on that point that it probably also tends to indicate, on balance, I should also prefer their evidence on other issues. I have already dealt with the issue about the inconsistencies in the length of the exchange on the Thursday afternoon. There has been a submission by Mr Montague today that it just didn’t make business sense for him in the circumstances to sack you at the time because the company would suffer if he did.

[30] In the circumstances it is a factor that would appear to me that if the company is going to suffer a hardship because they have lost an important player in the organisation then it would be unlikely that they would do that summarily without some sort of plan to deal with it. I am inclined to accept that when the relationship ended, the company probably suffered as a result, and that makes me less likely to think that you were sacked and didn’t leave voluntarily. It is not uncommon people come into this place and have their own differing recollections of a particular exchange.

[31] It may be that what you have said today reflects your recollection. I have got to make a decision on the balance of the evidence as to which version I think is more likely to be right. In all of the circumstances, on balance, I prefer the evidence of Mr Montague and, to the extent that it is relevant, Ms Moore.

[32] On that basis I determine that you did voluntarily resign, and on that basis the Commission doesn’t have jurisdiction to deal with the unfair dismissal element of the application. On that basis I am dismissing the application.

COMMISSIONER

Appearances:

Mr W. Taylor on his own behalf.

Mr J. Montague on behalf of the Respondent.

Hearing details:

2014.

Brisbane:

April 11.

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