Paul Bailey v Transberra Logistics Pty Ltd

[2020] FWC 6619

[2020] FWC 6619

FAIR WORK COMMISSION

DECISION

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

Paul Bailey
v
Transberra Logistics Pty Ltd
(U2020/9361)

DEPUTY PRESIDENT SAMS SYDNEY, 10 DECEMBER 2020

Application for an unfair dismissal remedy – applicant disputes pay and JobKeeper entitlements- heated conversation with management – employer claims applicant resigned and was not dismissed – jurisdictional objection – applicant denies he resigned – whether applicant dismissed while on personal leave after receiving doctor’s certificates – independent, impartial witness to conversation – applicant’s version of conversation not accepted – no steps taken to withdraw resignation – dismissal not at the initiative of the employer – jurisdictional objection upheld – application dismissed.

BACKGROUND

[1] Mr Paul Bailey (the ‘applicant’) was employed by Transberra Logistics Pty Ltd (the ‘respondent’) as a Truck Driver for approximately two years and eight months. His employment came to an end on 2 July 2020 when he claims he was unfairly dismissed by the respondent, without warning, while he was on personal leave with a medical certificate for a medical condition and being unfit for work from 26 June 2020 – 13 July 2020.

[2] On 8 July 2020, the applicant filed an application pursuant to s 394 of the Fair Work Act 2009 (the ‘Act’), seeking orders from the Fair Work Commission (the ‘Commission’) for compensation for loss of earnings. In the respondent’s Form F3 – Employer response to unfair dismissal application – it raised a jurisdictional objection to the application on the basis that the applicant had verbally resigned on 26 June 2020 and his resignation was accepted that day. This meant the applicant was not dismissed and his unfair dismissal application must be dismissed as being jurisdictionally incompetent.

[3] Although the respondent stated in the Form F3, that it employed 13 employees at the relevant time, it neither pressed a second jurisdictional objection that as a small business it had complied with the Small Business Fair Dismissal Code(the ‘Code’), or in the alternative, if its primary submission that the applicant was not dismissed was rejected by the Commission, it would rely on the small business objection. This seems perfectly logical, in the sense the employer could hardly argue it had complied with the Code in respect to the applicant’s dismissal if, as it claimed, he was not dismissed.

[4] In accordance with my usual practice I convened a conference with the parties by phone on 18 August 2020. Given the diametrically opposed positions of the parties, resolution of the application proved elusive. I therefore set the matter down for hearing on 2 October 2020 and issued directions for a hearing of the jurisdictional question as to whether the applicant resigned his position during a conversation on Friday, 26 June 2020.

[5] At the hearing, Mr A Schifferdecker appeared for the respondent and the applicant represented himself.

Case for the respondent

[6] Mr Schifferdecker referred to the conversation he had with the applicant on 26 June 2020 between 9:30-9:40am at the respondent’s premises. The conversation was witnessed by Mr Russell Jackson, the respondent’s Safety Officer, who took notes shortly after the conversation.

[7] Mr Schifferdecker claimed the applicant had said that he resigned immediately. Mr Schifferdecker immediately accepted his resignation. The applicant then said he was going on stress leave for two weeks and expected to be paid to stay at home until October on JobKeeper.

[8] Mr Schifferdecker received a doctor’s certificate (see: [1] above) on the following Monday (29 June 2020). Mr Jackson’s notes of the conversation later that day are reproduced below. In addition, Mr Jackson said that, at no time did Mr Schifferdecker state, or imply that the applicant had been sacked; only that he was accepting his resignation effective immediately. Mr Jackson’s notes state as follows:

‘Discussion between Alan and Paul.

When I came into the discussion I saw Alan and Paul have a strong discussion, many of the points I do not know the background to.

I heard Paul say to Alan that he considered Alan had been ‘double dipping’, but did not explain what he meant. He said this twice and each time Alan asked him to explain what he was thinking with no response.

Then Paul started to discuss something that had happened on a holiday that he, Alan, Simone and someone I believe to be Paul’s partner at the time had taken. Paul felt that from this point that Alan had been singling him out for some reason and that Alan had taken a dislike to his partner for some reason. It seemed to Paul this dislike had something to do with the current situation regarding his pay and leave. Alan did say that he did have a dislike of the other person, but that was personal not business.

The conversation became more heated, then Paul said he was going and he felt it was better to do this. (I got the impression that he felt if the discussion did not stop there could be violence and he did not want this to happen but do not remember anything being said by either person.)

Paul went to his motorbike he had parked in the roller door area. As he was starting to put his coat on I heard him say that he was going, he was putting in his resignation. Alan said that he accepted the resignation and for Paul to leave there and then.

Then Paul said he was going to see his doctor and get a certificate for two weeks off for stress and that Alan would have to pay him for it and until 23rd October. This date did not seem correct as it was a lot further than the two weeks he said he would get from the doctor.

At this point I approached Paul, he said he would not stay and he was going. I had a short discussion which I think could not be heard by others. I said that he did need to calm down and that leaving the site would be a good idea. I also said that if he wanted to he could ring me later and I would be happy to talk with him.

After he left I spoke with Alan and Simone, only to try to calm them down as they also looked stressed. I did say that they should make notes of what they saw and heard from when they saw it and in the order they remember things. I said I did not want to discuss it there and then and that Alan and Simone should try not to discuss it until they had made their notes. I knew I would be making notes and felt they should be reminded about this while it was fresh in their minds.’

[9] Ms Simmonette Schifferdecker, the respondent’s Accounts and Administration Manager, claimed that on 26 June 2020, the applicant accused her of making her partner backdate the JobKeeper form to 4 May 2020. In fact, Mr Schifferdecker signed and dated the form himself on 6 June 2020. She said the applicant got very aggressive and later resigned. She claimed he told her ‘you pay me $750.00 a week Jobkeeper to sit at home’.

[10] Mr Schifferdecker set out a further incident on 31 July 2020 about the applicant’s refusal to hand a client’s access pass back. He also claimed that contrary to the applicant’s plea of being ‘financially trashed’ he had travelled to Gladstone to buy a yacht (posted on Facebook). These matters are not relevant for present purposes.

[11] The applicant did not seek to cross examine any of the respondent’s witnesses. However, Mr Jackson made the following submissions on the record:

MR JACKSON: ‘Paul made some (indistinct) because I’m working for Transberra. I will say I’ve actually known Paul since he came over to Australia, which is the last five or six years, many of them (indistinct). I’ve always worked with him and liked him. I’ve known Alan since about 2006, when I worked for (indistinct). I’m the person with the least axe to grind and the person who wants to keep both of these things going - keep both of these guys actually friendly with each other.

So I heard what I heard, I saw what I saw, and I made the notes that I made literally either that night or the next - I made some that night and the next night I read them again so that is what I saw, that is what I heard. If I’d have seen or heard anything else, I would have made a note of it because I would not allow what I would have seen there as being possibly bullying by the company on one of its employees, when I didn’t see that. I didn’t see anything other than what I’ve written and I’ve been bloody careful, between the pair of them.

I’m sorry, Sams DP, if it’s a little bit around the corners, but that was actually a call on my personal standards, and I don’t really want to accept that.’

Case for the applicant

[12] The applicant provided a long email he sent to the Schifferdeckers in which he expressed his feelings about the deterioration in the personal and working relationship he had with them. As much of this email is very personal and involves other people, I set out a few extracts which demonstrate the level their relationship had reached:

‘I’m writing this email to you both,

Ever since our holiday to Hawaii our friendship and work relationship has tanked, Due to reasons I’m still trying to comprehend. When I came to speak with you both last September at your house to ask what has been going on, Not only did you make things up to cause issues in my personal life, You also involved a long term friend of yours and Kylie’s who had nothing to do with it,

You called Glen and pretty much threw the poor bloke under the bus!

This is supposed to be a long term friend of yours and you do this to him! You may not have liked what I said and “forced “a hand shake and an apology from Alan, but you were in the wrong and I believe an apology was justified.

From that point on I saw a different side of you both which made me feel uncomfortable to be around. To be honest, dealing with Simmone these last few months has been like dealing with a jealous ex girlfriend and the rudeness experienced has been extraordinary!

I also find it highly hypocritical coming from yourselves that Kylie was rude!

From not thanking her for your birthday meal in Hawaii. To not even acknowledge her text message after the holiday thanking you for arranging it, Then making it clear that she will not be welcome at your house or the work Christmas party Also Alan say if she did come he would belittle her infront of everybody if she attended Knowing this issues about my ex making false assault allegations against myself this was not on! As abuse, be it verbal or other against a woman, I will not tolerate!

Then to be insulted by Simmone saying that I had cost you money for not attending a strip club even though you actually never even told me you were going early on the Saturday morning I found this highly offensive and the final straw,

Since I came to work for you from moving across from DTM logistics you have never had to pay for a truck wash as I have always done it by hand, Trying to save you money!

I have gone out of May on many occasions to help you free of charge to help with your business, all whilst dealing with my own life issues and dilemmas Homelessness, divorce and false assault allegations etc.

You seem to have no bearing or care about what other people are dealing with in their lives. Back on the 12th of November 2019 when I was at my lowest point at Chelsea’s Birthday party, I actually went home and contemplated taking my own life!

This had been building for a while. But then having to deal with and Been made to feel even worse by so called friends, Who I had trusted with a lot of my life history, almost pushed me to a point of no return,

I NEVER want to be in that position ever again!

This is why I shut down from people who have hurt me. Then last week I emailed Simmone asking a perfectly responsible question to which almost 10 days later I still haven’t had a reply, Because I’ve always trusted my pay to be correct I’ve never really checked my hours and holiday etc But to notice two weeks ago that I was minus 2 hours I questioned this Alan’s response was” that I would help you out”

Yes help you out but then to realise that you hadn’t even been paying me a day rate if there was no work, As Alan and myself agreed when I left DTM logistics

As this was the same contract The only difference is I would work for $28 per hour plus usual overtime etc You had actually been using all my holidays, Technically “double dipping “ This has really hit me hard, It’s now Wednesday the 1st of July and not one of you has even text or asked how I am?

This actually has shown me that you do not care about anybody, unless it’s in your interest, I honestly thought when we had our chat back in September and you were made aware that your actions were both hurtful and disrespectful you might have, maybe taken on board some of the points I had always treated you both until recently with the upmost of respect, However that has now gone and it’s all of your own making

Regards
Paul’

[13] Against this background, I return to the gravamen of this case and the applicant’s version of the incident on 26 June 2020. The day before the applicant was called to the yard the next day and there was a conversation with Mr Schifferdecker about his many messages to Ms Schifferdecker since 19 June 2020 raising questions about his holiday pay and JobKeeper payments and what constituted ‘reasonable work. He claimed Mr Schifferdecker said ‘rudely’ that he’d seen the messages. The applicant queried if there was ‘double dipping’ with deductions from his holiday pay when he should have been paid his agreed daily rate. He claimed Mr Schifferdecker ‘very aggressively’ said ‘times are hard! There’s a crisis going on!’. The applicant respondent by saying that this did not give him (the respondent) the right to use his holiday pay, rather than his agreed rate of pay. He then said ‘a handshake means nothing to you, you spineless bastard’. At this comment, Mr Schifferdecker walked away. Ms Schifferdecker came downstairs and when she saw the applicant rudely said ‘I don’t want to talk to you’. The applicant replied ‘good, I don’t want to talk to you either, you disgust me’.

[14] The applicant said he walked to his motorcycle to leave and said to Mr Schifferdecker and Mr Jackson, ‘as of now I am going on sick/stress leave and Simone I will be providing a doctor’s certificate and you will be paying me award rate and after 2 weeks you will be paying me Jobkeeper until the end of September, if you can’t find meaningful work’.

[15] The applicant then turned to Mr Jackson and said ‘I’m going now Russell before I say something I might later regret’. He left the site. Later that day, he texted Mr Jackson as follows:

‘I apologise you had to see that earlier, However thing needed to come to a conclusion, there has been a very tense atmosphere since our Holiday in August to Hawaii when basically they made up some crap about my partner, I called him out and caught him out in September for been a liar, I’m not going to go into details, but since then I’ve been made to feel very uncomfortable and dealing with Simmone is like dealing with a jealous ex girlfriend, Which to be honest, is a bit weird, I understand the predicament your in, Keep in touch, All the best for the future you’re a good bloke, Even for a Lancastrian ’

[16] The applicant attended a doctor on 29 June 2020 and was advised to take two weeks’ sick leave for stress and anxiety. The applicant sent a number of text messages to Mr Jackson in which he sought his understanding and support. Mr Jackson does not appear to have wanted to get involved, but suggests he call the Schifferdeckers and talk directly to them, as writing one’s feelings can be taken the wrong way. The applicant said that at no point did he tell Mr Jackson he resigned.

[17] On 2 July 2020, the applicant received the following email:

‘To Paul Bailey,

I confirm you resigned on Friday 26 June 2020 at approximately 9:30 - 9:40am and that you stated it was effective immediately.

There were employee’s around when I accepted and they heard you say that. The effective date of termination is 26 June 2020.

I will provide any final pay applicable and if you need a separation certificate one will be available upon request.

All keys and passes for Air liquide and Transberra must be returned to Transberra Logistics office immediately during office hours.

Regards

Alan Schifferdecker
Director
Transberra Logistics Pty Ltd’

[18] He responded:

‘Hi Alan

I’m puzzled at why you would say I resigned,

When I actually said I’m going on sick/stress leave and provided a doctors certificate first thing Monday morning as requested by all employees.

I have not given you my resignation weather it be verbal, written or otherwise

Regards

Paul’

CONSIDERATION

[19] Although no party referred to the relevant sections of the Act or to any authorities of the Commission in respect to whether the applicant had been dismissed or resigned, the question in this case is relatively straightforward. Moreover, the circumstances surrounding the 26 June 2020 conversation can be easily understood from the prism of the deterioration and breakdown in the working and personal relationship between the applicant and the Schifferdeckers, who had previously been close friends and had holidayed together.

[20] Nevertheless, it is necessary to give some statutory context to this matter. Section 385 of the Act is relevant to this context as it defines unfair dismissal. It reads:

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.”

[21] Relevantly, s 386 sets out the meaning of ‘dismissed’ and states:

386 Meaning of dismissed

(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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

[22] The reference to a ‘forced resignation’ describes what is commonly understood to be a constructive dismissal. The Explanatory Memorandum to the Fair Work Bill 2009 sets out two examples which might permit a conclusion that an employee was constructively dismissed:

(1) Where the employee is effectively instructed to resign by the employer in the face of a threatened or impending dismissal; or

(2) Where the employee resigns in response to conduct by the employer which gives him or her no reasonable choice but to resign.

[23] Another commonly encountered example is where the employee resigns ‘in the heat of the moment’ and upon calm and sober reflection seeks to withdraw his/her resignation, but the employer unreasonably refuses to accept the withdrawal. For a more detailed discussion of what constitutes a dismissal at the initiative of the employer, see Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 and O’Meara v Stanley Works Pty Ltd (2006) AIRC 496.

[24] Turning then to the evidence in an effort to resolve the evidentiary conflict between the applicant and Mr Schifferdecker as to what was said in the 26 June 2020 conversation, I make the following observations and findings. At no time did Mr Schifferdecker expressly state, or imply that the applicant was dismissed. On the applicant’s own evidence, when he called him a ‘spineless bastard’, Mr Schifferdecker walked away and said nothing. On one view, such a brazen and disrespectful comment to the boss might well have prompted an immediate dismissal response. In addition, as the applicant’s direct report, at no time did Ms Schifferdecker expressly state, or imply that the applicant had been dismissed. The applicant’s response before he left the site is recorded at [14]-[15] above.

[25] In my judgment, what those comments disclose is a deeply troubling pre-determination of the applicant to remove himself from the workplace on medical grounds and continue to be paid full pay as the answer to his grievance that he had been underpaid by the respondent’s interpretation of the JobKeeper scheme. While I accept that the applicant was upset by the conversations, this does not amount to his immediate self-diagnosis of stress and his presumption that a doctor will provide him with a doctor’s certificate for two weeks.

[26] Moreover, the use of the definitive word will (be paying me award rates) and will (be paying me JobKeeper until the end of September) demonstrates unacceptable and misplaced demands on the employer or, at the very least, shows the depth of contempt, disdain and disrespect he had for the Schifferdeckers and their business.

[27] The applicant claims that, at no time, did he use the words ‘I resign effective immediately’ and he explained it makes no sense he would do so during the COVID-19 pandemic and with no job to go to. On first blush, this explanation sounds logical and reasonable. However, I do not accept his evidence in this regard for the following reasons.

[28] Conversely to his claim he never told Mr Jackson he had resigned, at no time from 26 June 2020 to 2 July 2020 in his text messages to his friend Mr Jackson, does he say he was dismissed, sacked or let go, insofar as this was Mr Schifferdecker’s intention. Indeed, this is apparent in his message at 11:26am to Mr Jackson on 26 June 2020; see: [15] above.

[29] A number of salient points emerge from this message. The applicant accepts that ‘things’ needed to come to a conclusion. In other words, conclusion to his grievances and perceived breakdown in the personal and working relationship was the step he took earlier to resign effective immediately. Secondly, his final words to Mr Jackson ‘Keep in touch. All the best for the future’, can only imply that he did not expect to see Mr Jackson at work again.

[30] The most telling evidence of all was that of Mr Jackson himself. Mr Jackson had known the applicant for eight years and it is clear they are friends. In this context, I accept Mr Jackson had no ‘axe to grind’ and had no motivation to do harm to the applicant’s employment. His evidence and notes of the meeting are sincere. His submission referred to at [11] above is believable and fits the narrative of the depth to which relationship between the applicant and Mr Schifferdecker had sunk. Mr Jackson’s evidence was that the applicant resigned, and Mr Schifferdecker accepted his resignation. It follows that the applicant’s evidence to the contrary is rejected and Mr Jackson’s version of events is preferred.

[31] In addition, I am fortified to this conclusion by noting the description of a ‘heat of the moment’ resignation is generally understood from the authorities to be followed by a request to rescind the resignation after calm and sober reflection. However, at no point from 26 June 2020 (when Mr Schifferdecker confirmed his acceptance of the resignation) did the applicant take any steps, or make any approach to the respondent to seek to revoke his resignation and ask Mr Schifferdecker to reconsider his acceptance of it. In my view, had he apologised for his unacceptable and disrespectful comments in the conversation, he might still be employed.

[32] For all these reasons, I find that the applicant was not dismissed by the respondent, and that the course of conduct engaged in by the respondent does not lead to a conclusion that the applicant was forced to resign. Accordingly, as there was no dismissal, there can be no unfair dismissal. It follows that the Commission has no jurisdiction to deal with the application and it must be dismissed. I so order.

DEPUTY PRESIDENT

Appearances:

The applicant appeared for himself

Mr A Schifferdecker appeared for the respondent

Hearing details:

2020.

Sydney (via Microsoft Teams):

2 October.

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