Nicholas Tindale v DPG Services Pty Ltd
[2022] FWC 2175
•17 AUGUST 2022
| [2022] FWC 2175 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Nicholas Tindale
v
DPG Services Pty Ltd
(U2022/4962)
| DEPUTY PRESIDENT COLMAN | MELBOURNE, 17 AUGUST 2022 |
Application for an unfair dismissal remedy
This decision concerns an application for an unfair dismissal remedy made by Mr Nicholas Tindale under s 394 of the Fair Work Act 2009 (Act). Mr Tindale was employed by DPG Services Pty Ltd, which trades as Opal HealthCare (respondent), as a personal care worker in its aged care facility in Lakes Entrance, Victoria. Mr Tindale contends that he was summarily and unfairly dismissed over the telephone on 19 April 2022, at a time when he was receiving psychiatric treatment. The respondent contends that Mr Tindale had resigned from his employment on 1 April 2022, and that the telephone call on 19 April 2022 concerned the question of Mr Tindale’s termination payments.
Ms Karenne Hall, the respondent’s human resources adviser, gave evidence that on 1 April 2022, Mr Tindale resigned to the company’s general manager, Mr Adrian Roberts, and that Mr Tindale worked his last shift on 9 April 2022. Ms Hall said that on 14 April 2022, Mr Tindale called Mr Roberts to ask why he had not received his termination payments, and Mr Roberts apologised and said that the payments would be processed as soon as possible. Ms Hall said that shortly afterwards, Mr Tindale made an abusive telephone call to Ms Janene Havers, the respondent’s area manager. Ms Hall also said that, to the best of her knowledge, no representative of the company had ever said to Mr Tindale that his employment was terminated.
Ms Havers gave evidence that on the evening of 14 April 2022, she received a telephone call from Mr Tindale, in which he complained that he had not received his termination payments and said: ‘Adrian has done shit to organise my payment’; ‘you owe me $1000 and I want it now’; ‘you fucking need to listen to me and shut up’; ‘cut the shit’; and ‘shut up bitch you need to grow some tits’. Ms Havers spoke to Ms Hall about what had occurred. She then spoke with payroll about finalising the termination payments, which had not been made due to an oversight.
Ms Havers said that on 19 April 2022, she spoke to Mr Tindale on the telephone and told him that his termination payments had been processed. She said that the company would pay Mr Tindale a further two weeks’ pay in recognition of the inconvenience he had suffered because of the late payment of his termination pay. Ms Havers’ evidence was that during this call she did not tell Mr Tindale that he was dismissed.
Mr Tindale did not dispute telling Mr Roberts on 1 April 2022 that he resigned. He said however that Mr Roberts had then suggested that he consider doing casual work, and that he agreed, although no rate of pay or start date was discussed. On 14 April 2022, Mr Tindale called Mr Roberts to ask why his termination payments had not been made, and shortly afterwards he called Ms Havers about the same issue. Mr Tindale said that he and Ms Havers had a ‘verbal confrontation’, but that he had no recollection of the discussion, due to a mental health episode that he experienced that day which resulted in his hospitalisation. Mr Tindale said that he was not able to refute Ms Havers’ evidence about what he had said to her during the conversation because he did not recall what he had said. Mr Tindale said that he did not tell Ms Havers that he was having mental health problems because he did not think it was necessary to disclose this to his employer. This evidence suggests that Mr Tindale does have some recollection of the detail of the conversation.
Mr Tindale said that on 19 April 2022, he had a telephone conversation with Ms Havers, who told him that his employment was terminated and that he would receive two weeks’ payment in lieu of notice of termination. At the time of the call, he was receiving care in a psychiatric facility. Mr Tindale said that he believed his dismissal was unfair because his ‘confrontation’ with Ms Havers on 14 April 2022 had occurred at a time when he was having a mental health episode, and because he was dismissed over the telephone, and while he was receiving psychiatric care.
I make the following findings. First, it is not in dispute that on 1 April 2022, Mr Tindale told Mr Roberts that he resigned. Secondly, I accept Mr Tindale’s evidence that Mr Roberts suggested that he consider casual work and that he agreed. Thirdly, I find that the proposed casual arrangements were not finalised. In particular, it was not decided when the casual work would start, what hours would be worked, or what the pay and conditions would be. No casual shifts were in fact worked. Fourthly, I accept the evidence of Ms Havers about what Mr Tindale said to her during the telephone conversation on 14 April 2022. I also accept Ms Havers’ evidence about her conversation with Mr Tindale on 19 April 2022. I prefer her evidence to Mr Tindale’s. Ms Havers was a credible witness. Her evidence was clear, consistent and convincing. I reject Mr Tindale’s evidence that Ms Havers told him on 19 April 2022 that he was terminated on two weeks’ notice. This would not make sense. Mr Tindale had previously called Ms Havers complaining that he had not received his termination payment. This was a payment to which he was entitled because he had resigned. Fifthly, Ms Havers denied telling Mr Tindale on 19 April 2022 that the offer of casual work had been withdrawn. I believe her.
One of the documents submitted by Mr Tindale was a separation certificate, which stated that the reason for termination of the employment was ‘misconduct as an employee’, specifically, that Mr Tindale was ‘verbally abusive towards other team members’. Ms Hall said that this was a mistake. She believed that the payroll officer who prepared the certificate may have been confused by an internal form indicating that Mr Tindale was not to be reemployed because of his verbal abuse of Ms Havers. Ms Hall said that the termination date indicated in the certificate, 14 April 2022, likely reflected the two week period of notice of termination that Mr Tindale was required to give the company.
I consider that the reason for termination stated in the certificate is an error. There is no primary evidence of Mr Tindale being dismissed by the company on this date. Mr Tindale did not claim to have been dismissed on 14 April 2022. He said that Ms Havers dismissed him on 19 April 2022. I find the hypothesis suggested by Ms Hall as to the cause of the error to be a reasonable one. It is easy to see how the payroll officer might make a mistake and believe that Mr Tindale had been dismissed for this behaviour, particularly given the apparent absence of any written confirmation of Mr Tindale’s resignation to Mr Roberts.
Consideration
The first matter to be determined is whether Mr Tindale was dismissed. Section 386(1) of the Act states that a person has been ‘dismissed’ if the person’s employment has been terminated ‘on the employer’s initiative’ (s 386(1)(a)), or 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’. It is clear from the evidence that Mr Tindale resigned from his employment. He does not allege that he was forced to resign, nor does he contend that the respondent could not reasonably have believed from his discussion with Mr Roberts on 1 April 2022 that he intended to resign. He does not say that on 1 April 2022 he was suffering from mental health episodes, or that his capacity to think clearly was impaired and that the company should reasonably have understood this. In short, there is nothing to call into question the genuineness or the effectiveness of Mr Tindale’s resignation.
The question of whether a person’s employment has been terminated requires consideration of whether it was the employer’s initiative to end the employment relationship (see Khayam v Navitas English Pty Ltd[2017] FWCFB 5162). Had I concluded that the parties agreed to convert Mr Tindale’s part-time employment to casual, the apparent decision of the company not to offer Mr Tindale any casual work might be regarded as the seminal act leading to the termination of the employment relationship. However, this is not what happened. Rather, Mr Tindale resigned from his employment. Mr Roberts asked him to consider casual work and Mr Tindale agreed. But these arrangements were not finalised. And Mr Tindale did not then retract his resignation, as he might have done if the casual arrangements had in fact been finalised. The resignation remained effective.
But even if I had concluded that the respondent’s decision not to offer Mr Tindale casual work amounted to a dismissal, I would nevertheless have concluded that the dismissal was not unfair. Section 387 prescribes the matters that the Commission is required to take into account in considering whether a dismissal was unfair. These include whether there was a valid reason for dismissal related to the person’s capacity or conduct (s 387(a)). It is well-established that the Commission must decide for itself whether there was a valid reason for dismissal; an employer does not have to have invoked that reason. In my view it is obvious that there was a valid reason for which the company could have dismissed Mr Tindale, namely his abusive tirade towards Ms Havers on 14 April 2022. This is not to be waived away by a simple assertion from Mr Tindale that he suffered a mental health episode that day. There is no medical evidence in support of this assertion. The only medical evidence is a backdated doctor’s certificate of 21 April 2022 stating that Mr Tindale had been unfit for work for the previous week. Mr Tindale claims that he was hospitalised on 14 April 2022, but even if this is accepted, it establishes only that Mr Tindale was suffering from a mental illness; it does not explain how this may have affected Mr Tindale’s behaviour on 14 April 2022. It does not account for Mr Tindale’s appalling mistreatment of Ms Havers.
As to the other matters in s 387, there was no notification to Mr Tindale of the valid reason for dismissal, nor an opportunity to respond to it (ss 387(b) and (c)), but this would carry little weight, given the seriousness of Mr Tindale’s conduct. There was no unreasonable refusal of a support person (s 387(d)); s 387(e) is not relevant, because Mr Tindale was not dismissed for poor performance; and ss 387(f) and (g) would attract no weight as the respondent is a large employer. As to any other matters that the Commission considers relevant (s 387(h)), I accept that Mr Tindale has experienced poor mental health. But the extent of this has not been established, and the evidence comes nowhere near accounting for Mr Tindale’s unacceptable behaviour towards Ms Havers. Further, Mr Tindale received two weeks’ pay, even though he could reasonably have been summarily dismissed for what he said to Ms Havers on 14 April 2022. In all the circumstances I would not have regarded Mr Tindale’s dismissal to have been harsh, unjust or unreasonable. It would not have been unfair.
Conclusion
The jurisdictional objection is upheld. Mr Tindale’s application is dismissed.
DEPUTY PRESIDENT
Appearances:
N. Tindale for himself
K. Hall for the respondent
Hearing details:
2022
Melbourne
16 August
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