Mrs Glenys Kathryn Moffatt v 7 Steel Distribution Pty Ltd
[2010] FWA 2855
•17 JUNE 2010
[2010] FWA 2855 |
|
DECISION |
Workplace Relations Act 1996
s.643 - Application for relief re (Unlawful and Harsh, Unjust or Unreasonable) termination of employment
Mrs Glenys Kathryn Moffatt
v
7 Steel Distribution Pty Ltd
(U2009/2242)
COMMISSIONER SPENCER | BRISBANE, 17 JUNE 2010 |
Termination of employment – Jurisdiction – whether termination was at the initiative of the Employer.
[1] This decision relates to the jurisdictional objection to the application made by Ms Glenys Moffatt (the Applicant) pursuant to s.643(1)(a) of the Workplace Relations Act 1996 (the Act), alleging her termination of employment was harsh, unjust and/or unreasonable.
[2] The Applicant was employed by 7 Steel Distribution Pty Ltd (the Respondent). The Respondent filed a Motion to Dismiss the Application for want of jurisdiction pursuant to s.645 of the Act. The Respondent’s jurisdictional objection was based on the ground that the Applicant voluntarily resigned her employment and therefore there was no termination at the initiative of the Employer. They further asserted that the application was frivolous, vexatious and lacking in substance and without reasonable cause pursuant to s.646 of the Act. The Applicant was self represented. The Respondent was represented by Mr Dougal Geddes of Foulsham & Geddes Solicitors.
Background
[3] This matter primarily turns on a conversation that took place between the Applicant and the Respondent, Mr Graham Smith (the General Manager).
[4] The matter was the subject of two conciliation conferences. It was clear on the basis of the Application and associated papers that the Applicant contended that her employment had been terminated, whilst the Respondent considered she had resigned. Despite these different positions regarding the final meeting, the Respondent’s representative Mr Geddes, did not have Mr Graham Smith available for the conference, nor did he have full instructions on the issue from him.
[5] The Applicant agreed at the initial conference given that little progress could be made in the absence of proper instructions from the Respondent, to allow Mr Geddes, for the Respondent, to have a copy of her written notes of the final exchange at the meeting in order to seek further instructions to advance conciliation. He had indicated he would provide a response to her version of the conversation and her offer to resolve the matter. However at the further conference, Mr Geddes simply responded that Mr Smith disputed the content of the conversation as presented by the Applicant and provided no further detail and no response to progress conciliation.
[6] This reference to the conciliation proceedings is only made as the Respondent has referred to this initial documentation as provided by the Applicant, in the jurisdictional matter.
[7] Whilst not all of the evidence, submissions and materials have been referred to in this decision, all of such has been considered in the determination of this matter.
[8] In response to the Directions, the parties provided submissions in relation to the jurisdictional issue. The parties agreed that this jurisdictional matter be dealt with on the papers pursuant to s.648 of the Act. Accordingly, after taking into account the relevant statutory considerations, it was decided not to hold a hearing.
Legislation
[9] Section 643 (1) (a) of the Act provides:
“643 Application to Commission to deal with termination under this Subdivision
(1) Subject to subsections (5), (6), (8) and (10), an employee whose employment has been terminated by the employer may apply to the Commission for relief in respect of the termination of that employment:
(a) on the ground that the termination was harsh, unjust or unreasonable”.
[10] Section 645 (1) of the Act provides:
“645 Motions for dismissal of application for want of jurisdiction
(1) A respondent may move for the dismissal of an application under section 643 on the ground that the application is outside the jurisdiction of the Commission at any time, including a time before the Commission has begun dealing with the application.”
[11] Sections 646 (2) and (3) of the Act provides:
“(2) If:
(a) an application is made, or purported to have been made, under subsection 643(1):
(i) on the ground referred to in paragraph 643(1)(a); or
(ii) on grounds that include that ground; and
(b) the respondent moves for dismissal of the application on the ground that it is frivolous, vexatious or lacking in substance; and
(c) the Commission is not satisfied that the application is frivolous, vexatious or lacking in substance, in relation to the ground referred to in paragraph 643(1)(a);
the Commission must:
(d) if subparagraph (a)(i) applies—make an order refusing the motion for dismissal; or
(e) if subparagraph (a)(ii) applies—make an order refusing the motion for dismissal, to the extent that the application is made on the ground referred to in paragraph 643(1)(a).
(3) The Commission is not required to hold a hearing in relation to the making of an order under subsection (1) or (2).”
[12] Section 642(1) of the Act contains the following definition:
“Termination or termination of employmentmeans termination at the initiative of the Employer”.
[13] Section 642 (4) of the Act provides:
“For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer”.
The Applicant’s Submissions
[14] The Applicant submitted that she had worked with the employer for seven months, but six and a half years for the immediate past employer, prior to the acquisition by the current employer of the past employer’s business. She stated during the final conversation with Mr Smith, the General Manager she was in a calm and reasonable state and it was incongruent that she would verbally resign without providing notice or to even have the opportunity to say goodbye to her colleagues and clients.
[15] The Applicant disputed the Respondent’s version of events. The Applicant stated that her version was supported by the evidence of Ms Yvonne Stitt. Ms Stitt (a former employee), stated she heard Mr Smith instruct the Applicant to ‘pack up and go’ in a manner, she stated, that was not calm and in a voice that was raised.
[16] The Applicant stated:
“I was employed by 7 Steel Distribution Pty Ltd (“7 Steel”) for a total period of 7 months.
7 Steel acquired my previous employer Sims Group Ltd for which I was employed for a total of 6 years…
In my role as Office Manager for 7 Steel one of my duties was to compile and distribute Sales Invoice Reports for Senior Management.
On the 12 February I arrived at the Coopers Plains office at 6.50 am to start work.
At approximately 7.00 am, I tried to run the Sales Invoice Report and my access to the programme was once again denied.”
[17] As previously mentioned, this matter principally turns on a discussion that took place between the Applicant and the General Manager of the Respondent.
[18] The Applicant’s evidence of the conversation in question was as follows:
“At 7.45am I (MOFFATT) went to say good morning to Graham Smith (SMITH), who invited me into his office where the following conversation took place:
SMITH: Good morning, come in.
MOFFATT: Hello Graham, how are you? I am feeling better.....
SMITH: How do you feel about the departure of Andrew Zervos from the company?
MOFFATT: These things happen when a company is sold and they want their own management on board.
SMITH & Discussions took place as to the reasons why Andrew Zervos
MOFFATT: was sacked.
SMITH: I heard that you called me names such as “Chauvinistic Pig”
MOFFATT: (I was startled and laughed at the accusation) I have known you for a couple of years and I have not known you as that. If the company was going to put people off, then it should be the head office at Altona, because Bill Mills had said to Tony Smith (Branch Manager) in Mackay there is no need for two general managers. Look Graham, there are spies here and everything we do, is reported back to Bill Mills.
SMITH: This place is running like a kindergarten. So what can we do about it? How do you feel about working here?
MOFFATT: At this present stage it was not a very nice place to work for anymore.
SILENCE
SMITH: Well you can pack up and go.
MOFFATT: Sat there stunned while processing the statement.
SMITH: GO ON GO
MOFFATT: Stood up and left his office”
[19] The Applicant stated that she was given a clear instruction at the end of this conversation to “pack up and go”. She stated that although the General Manager stated he was trained in human resource management, that contrary to procedure, she was not asked to put her resignation in writing.
[20] She stated that the day after the conversation she received into her bank account the amount of $12,639.66 and that she was unaware of what the money was for as no correspondence had been forwarded to her.
[21] She also stated that she received via Australia Post an Employment Separation Certificate and Pay Slip. She stated that the envelope containing the certificate was dated 10 March 2009 contrary to Mr Smith’s statement that this was sent the 13 February 2009.
[22] She stated,
“On review of the Employment Separation Certificate under section 2 “Reasons for Separation” the employee ceasing work voluntary box was crossed, but no reason or further details were supplied. The form clearly instructs that for this option a reason or further details need to be supplied.”
[23] Ms Stitt, a former employee, provided a statement as follows:
“I was previously employed by 7 Steel Distribution Pty Ltd. I was retained by 7 Steel when they acquired the business from Sims Group Limited on 1st July 2008.
On the morning of Feb 12th 2009 I was concerned as to the well being of Glenys due to her having been absent from work for the past two days. When I arrived at work at approximately 7.45 am I noticed Glenys was in Graham Smith’s office having a meeting. My immediate thoughts were that they were discussing the activities of 7 Steel during the last two days. It did not take me long to realise things were far more serious than that.
I overheard a few sentences of the conversation as Mr Smith’s door was left open and my work station was basically right out front of the door. When I heard Graham Smith tell Glenys to pack up and go I was dumbfounded, there was no response from Glenys and then I heard him tell her a second time to Go, his voice was raised in anger and those words came out of the office at a very high volume.
Glenys was in a state of shock and I believe didn’t even comprehend at that point that she had been sacked, a fact which I made her aware as soon as she passed my work station.
Glenys handed me her office keys and corporate company credit card and then left at 7.55 am without saying goodbye to her work colleagues as she was very distressed.
I then went in and handed Mr Smith the office key and credit card. Mr Smith stated, “he did not want her (Moffatt) working here if she did not want to be here.”
The Respondent’s Submissions
[24] The Respondent submitted that the evidence of Mr Graham Smith, the General Manager, was as follows:
“I am the General Manager of 7 Steel Distribution Pty Ltd (“7 Steel”).
I have been employed by 7 Steel for a period of approximately one year. I have held senior management roles with a number of employers since 1989. I have received training in various HR issues.
7 Steel has offices in Altona, Campbellfield, Noble Park and North Geelong in Victoria, Mt Druitt in New South Wales, Coopers Plains, Townsville, North Mackay and Maroochydore in Queensland and Kwinana in Western Australia, Adelaide in South Australia and Darwin in Northern Territory. I am based at the 7 Steel office in Altona in Victoria but visit all of the other 7 Steel offices throughout Australia on a regular basis.
On or about 1 July 2008 7 Steel acquired the steel distribution business of Sims Group Limited. Following the acquisition of that business, 7 Steel retained and employed some of the former employees of Sims Group Limited including the applicant and Andrew Zervos. Both the applicant and Andrew Zervos worked in the Coopers Plains, Queensland office of 7 Steel. The applicant was employed in the sales department and Andrew Zervos was employed as 7 Steel’s Queensland State Manager.”
…
“On Friday, 6 February 2009 7 Steel terminated the employment of its Queensland State Manager, Andrew Zervos.
On or about 10th February 2009 I spoke to most of the staff members in the Coopers Plains office of 7 Steel about Andrew Zervos’ departure from 7 Steel. I said to them words to the effect:
“Andrew Zervos’ employment as State Manager has been terminated due to his recent performance. The Queensland office used to be the number one performer but has now fallen behind the other states. In January 2009 sales in Queensland were down by 57% compared to January 2008 whereas in New South Wales sales were only down by 18% and in Victoria by 10% compared to January 2008. Andrew is ultimately responsible for the performance of the Queensland office and we have come to an agreement that he should leave.”
I was present in 7 Steel’s office in Coopers Plains, Queensland on Tuesday, 10 February 2009 and Wednesday, 11 February 2009. Glenys Moffatt was absent on sick leave on both those days.
On 12 February 2009 I arrived at 7 Steel’s office at Coopers Plains at about 7:40 am.
At about 7:45 am, I invited the Applicant, Glenys Moffatt (“Moffatt”), into my office. I said to Moffatt words to the effect:
“How are you feeling?”
Moffatt responded with words to the effect:
“I am still recovering from an upset stomach.”
I then said to Moffatt words to the effect:
“I have heard that when you were leaving Andrew’s office after you were told he was leaving, you said ‘What else do you expect from a piece of shit like Graham Smith’.”
Moffatt responded by saying words to the effect:
“I don’t use language like that.”
I then said words to the effect:
“Let’s not worry about what was said about me. How do you feel about Andrew Zervos leaving?”
Moffatt replied with words to the effect:
“This place is not a nice place to work anymore.”
I then said words to the effect:
“What are we going to do about that?”
Moffatt replied with words to the effect:
“Well I will hand in my resignation. I will go now if you want.”
I then said words to the effect:
“OK I will accept that.”
Moffatt then said words to the effect:
“I will pack up my things and get on my way now if you like.”
I replied:
“OK.”
I deny that I ever said words such as “pack up and go” or “go on, go” either loudly or at all.
My discussions with Moffatt on 12 February 2009 were conducted in a very calm, cordial and relaxed manner. Neither Moffatt nor I raised our voices at any time during the discussion.
Moffatt then left my office. She departed the company offices at about 7.50 am after collecting her things.”
[25] Mr Smith acknowledged that his account of the conversation was in contrast to the handwritten version of events provided by the Applicant at conciliation. That document (as referred to in the jurisdictional matter), stated as follows:
“Graham Smith arrived at the office approx 7:40am. I was called into his office and I said good morning, and I could tell by the way he was looking that he was not happy, (scowling looking) and he did not ask how I was feeling as I had been sick for 2 days and I was the one proceeded to tell him I was feeling better, but he actually cut me short of my sentence and he jumped straight in and asked what I thought about Andrew Zervos (State Manager) departure from the company. I told him, these things happen when a company is sold and that they want their own management team on board.
...
He then stated that he had heard that I had called him names such as chauvinistic pig. I laughed and said Graham I have known you for couple of years and I have not known you as that. I also stated that I had said that if the company was going to put people off then it should be head office staff at Altona because Bill Mills (Group General Manager) had even said to Tony at Mackay that there was no need for 2 general managers, look Graham there are spies here and everything we do is reported back to Bill Mills. And he replied that this place was running like a kindergarten.”
[26] As previously set out, the document was prepared as initial notes by the Applicant of the conversation and, was provided in good faith to the Respondent’s legal representative as he had no meaningful submissions at conciliation in relation to the facts of the conversation.
Consideration
[27] The definition of termination at the initiative of the Employer is included in s.642(4) of the Act. The Applicant has the onus in such a matter, to satisfy the Commission on the balance of probabilities that the termination of employment was directly attributed to the actions of the Employer.
[28] In this regard, the Full Court in O’Meara v Stanley Works Pty Ltd reviewed the authorities in relation to constructive dismissal as follows:
“In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there to be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether “the act of the employer [resulted] directly or consequentially in the termination of the employment.” Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer’s conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign.” 1
[29] I concur with Senior Deputy President Richards’ assessment of the relevant jurisdictional test as follows:
“The now relevant statutorily stipulated test in relation to whether a resignation of an employee’s employment that led to the termination of an employee’s employment, in effect, was at the initiative of an employer for purposes of s.642(4) of the Act comprises the following elements:
the onus is on an employee or Applicant to demonstrate certain facts on the balance of probabilities; and
the facts that the Applicant must demonstrate are that:
a) the employee did not resign his or her employment voluntarily, but;
b) was forced to do so;
c) because of the employer’s conduct, or course of conduct.
Consequently, the requirements of the Act are now directly expressed.
It seems that the term “ forced ” is the past tense of the verb form “ to force ”, and as such, an understanding of the plain meaning of the term “ force ” is relevant to applying s.642(4).
Relevantly, the Macquarie Dictionary defines “ force ” as:
“….strength or power exerted upon an object; physical coercions; violence….power to influence, affect, or control; power to convince….to compel; constrain or oblige (oneself or someone) to do something….to bring about or effect by force; bring about of necessity or as a necessary result….to put or impose (something) forcibly on or upon a person….to press, urge or exert to violent effort or to the utmost….”
The term “force” appears to encompass both the application of physical power to directly achieve a result and the actions of a person to persuade or otherwise convince another for the same purposes. In either case, there is an important element of compulsion present”. 2
[30] The Full Court in Mozahab found that a termination at the initiative of the Employer may be treated as such when the action of the employer is the principal contributing factor which leads to the termination of the of the employment relationship, as follows: 3
"In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the Employer not taken the action he did, the Employee would have remained in the employment relationship". 4
Conclusion
[31] The evidence and submissions of the conversation as advanced do not support a resignation by the Applicant. Further, the Applicant’s comments regarding the workplace, where an assessment was invited do not represent a breach of the trust and confidence in the employment relationship. The Applicant’s comments were based on recent events at the workplace and did not confirm a desire to end the employment relationship, nor do they represent a repudiation of the employment contract. It is clear that the General Manager sought the meeting and requested her view of recent events.
[32] The Applicant’s evidence of the final conversation with Mr Smith has been consistently presented and is preferred. She took steps to contest the matter and provided detailed notes of the critical conversation at an early stage, whereas the Respondents were reluctant to address the actual details of the conversation. Whilst the Applicant was honest in her assessment of recent events in the workplace, she was not critical of Mr Smith and the Applicant’s statement about the workplace was not enough to trigger the end of the employment contract or represent a resignation.
[33] The Applicant was not asked to confirm the resignation in writing however the Respondent swiftly placed her entitlements into her account the next day.
[34] Whilst the General Manager attributed the Applicant’s loyalty to the previous State Manager as the causation for her remarks and her alleged resignation, the argument can be as conveniently conferred upon him as a basis to remove an employee that had worked closely with this State Manager. There was no reliable evidence that formed the basis as to why the General Manager had convened the discussion with the Applicant that day and asked the question about the previous Manager and the workplace. It is reasonable to conclude the actions were motivated to place pressure on the Applicant. The nature of the conversation was clearly uncomfortable for the Applicant. However, the submission that she voluntarily resigned on the evidence presented cannot be sustained. The Applicant had no waiting alternative employment and a resignation on her part is deemed to be inconsistent with the facts and circumstances of the matter as presented. The material is commensurate with a termination at the initiative of the employer.
[35] The current statutory test for termination at the initiative of the employer places a burden of proof on the Applicant. The Applicant conveyed the conversation at the earliest opportunity and the impact of the events and the loss of employment. The conversation as presented by the Applicant, on the balance of probabilities clearly brought about the end of the employment relationship. On the basis of the evidence, the Applicant did not resign her employment voluntarily but the employment relationship was brought to an end due to the Employer’s conduct.
[36] For the reasons set out, a termination at the initiative of the employer was effected. Accordingly, the jurisdiction to hear the matter filed pursuant to s.643(1)(a) is confirmed and the jurisdictional objection pursuant to s.645 is dismissed. I order accordingly. Therefore, the matter will be further listed for conciliation/directions.
[37] A separate listing will be issued.
COMMISSIONER
1 Giudice J, Watson VP, Cribb C, PR973462
2 PR973785 [12] – [16]
3 Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200) (Lee, Moore and Marshall JJ) as cited in Wicks v Colemans Printing; SDP Richards, PR970807
4 Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200) (Lee, Moore and Marshall JJ) as cited in Wicks v Colemans Printing Pty Ltd; SDP Richards PR970807
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