Peter Heppell v Numac Drilling Services Australia Pty Ltd
[2010] FWA 4085
•3 JUNE 2010
[2010] FWA 4085 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Peter Heppell
v
Numac Drilling Services Australia Pty Ltd
(U2009/13083)
COMMISSIONER BISSETT | MELBOURNE, 3 JUNE 2010 |
Application for unfair dismissal remedy.
[1] This is an application under s.394 of the Fair Work Act 2009 (the Act) by Mr Peter Heppell for a remedy for unfair dismissal relating to his alleged termination of employment by Numac Drilling Services Australia Pty Ltd (Numac).
[2] Mr Heppell claims his employment was terminated on 9 October 2009. Numac claim Mr Heppell resigned on that date.
[3] The matter was subject to a conciliation conference on 9 November 2009. The conciliation failed to resolve the matter and it was subsequently referred for arbitration. The initial arbitration date was abandoned on application by Mr Heppell. The file was subsequently allocated to me and the matter heard on 24 May 2010.
[4] The matter involved a substantial number of contested facts. It was dealt with by way of hearing.
Background
[5] Mr Heppell was employed by Numac in November 2005 as an administrator/book-keeper. There was no written contract of employment with the employment arrangements verbally agreed to between the parties. 1 Whilst some of those arrangements are not agreed there is no dispute that when Mr Heppell commenced work with Numac he worked part time and that his hours were flexible.2 Eventually his hours increased to somewhere between 35 and 40 hours per week3 and the functions he undertook increased to include pay roll, invoicing, and so on.
[6] Mr Heppell had received only one pay increase in 2006 since commencing with Numac.
[7] On 9 October 2009 Mr Heppell called Mr McMullen – a Director of the company – into his office and asked for a pay rise. He presented Mr McMullen with a memo dated 8 October 2009 (the memo) for Mr McMullen to sign that approved such a rise. That memo was addressed to Mr Heppell from Mr McMullen. The memo was (and it is not disputed) written by Mr Heppell. The memo stated:
Memo: Wage review
Peter
We have reviewed your wages and conditions and are pleased to offer you:
• Your hourly rate is to be increased to $30.00
• Overtime will be paid at time and a half after eight hours
• Recognising that you haven’t had a review for over three years, a one time payment of $15,000 will be made
• Once you transition to the position of Billing and Payroll Manager your hourly rate will revert to $25.00
• Numac will continue to pay for fuel weekly in the event you attend the office weekly; if not Numac will pay for fuel bi-weekly
We thank you for your past contribution to Numac’s growth and look forward to a continuing mutually rewarding relationship.
Chris McMullen 4
[8] On receipt of the memo Mr McMullen rejected it. At this point or not long thereafter either Mr Heppell resigned or Mr McMullen terminated Mr Heppell’s employment.
[9] The issue for determination is whether Mr Heppell resigned or his employment was terminated at the initiative of the employer and, if it was, whether that dismissal was unfair within the meaning of the Act.
Statutory context
[10] A necessary condition for accessing the unfair dismissal provisions of the Act is that a person must be dismissed from their employment:
385 What is an unfair dismissal
A person has been unfairly dismissed if FWA 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.
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.
(emphasis added)
[11] In this matter there is no agreement as to whether dismissal took place or the employee resigned his employment. Mr Heppell contends, and Numac dispute, that Mr Heppell was dismissed from his employment. There is no suggestion that, if the employee did resign, he was forced to do so by the conduct or a course of conduct of the employer.
[12] The determination of this matter is one of contested facts as to what took place on the day Mr Heppell finished his employment with the employer. The determination of which version of the facts prevail will determine if Mr Heppell has access to the unfair dismissal provisions of the Act.
The Evidence and submissions
[13] Mr Heppell gave evidence in support of his case. Numac relied on the evidence of Mr McMullen, Mr Hansen and Mr Morrice.
Mr Heppell
[14] Mr Heppell provided three written submissions to Fair Work Australia. The first was his written submissions in response to the directions issued for the hearing of the matter, 5 the second was a further written statement Mr Heppell sent to Fair Work Australia on 9 November 2009 in response to the employer material lodged in response to Mr Heppell’s application6 and the third was additional written material provided on the day of the hearing.7 The three written submissions of Mr Heppell are not necessarily contradictory – each expands on and provides more detail relevant to the events of 9 October 2009. Time was provided to Numac to consider the material provided by Mr Heppell at the hearing that they had not previously seen.
[15] Mr Heppell represented himself during the proceedings. He made initial submissions from the bar table which he then adopted after being sworn in as a witness in the proceedings.
[16] Mr Heppell received one pay increase in 2006 during his period of employment. He stated that he regularly – every 3 or 6 months – asked for a pay increase but he was brushed off each time. 8
[17] Mr Heppell’s evidence is that on the morning of 9 October 2009 he called Mr McMullen into his office and showed Mr McMullen, on his computer screen, the results of the Hays salary survey.
[18] Mr Heppell advised Mr McMullen that he felt he was being underpaid and that he deserved a pay increase. He presented Mr McMullen with the memo 9 (reproduced above) setting out arrangements for a pay increase and other matters to which Mr McMullen replied “You have to be fucking joking.”10
[19] On Mr Heppell’s evidence, Mr McMullen then left Mr Heppell’s office and returned 10 minutes later to advise Mr Heppell that his employment was terminated but the company would like him to remain for two months until a replacement was found. (Action was already underway to recruit a CPA qualified accountant to take on some of Mr Heppell’s role. Mr Heppell was to commence working from home on reduced hours when this appointment was made.) Mr Heppell’s evidence is that he replied that given he was just sacked he thought remaining for a week was reasonable. 11
[20] Mr McMullen then left Mr Heppell’s office for a second time but returned shortly thereafter and directed that Mr Heppell not touch his computer, pack up his personal belongings and leave immediately.
[21] Mr Heppell rang Mr Morrice, a work colleague, and told Mr Morrice that he had been sacked or fired. Mr Morrice came down to say goodbye and Mr Heppell then left. 12
[22] In his submissions Mr Heppell claimed that there were other employees of the company he told he had been fired but that he did not call them as witnesses as he was concerned ‘it might be unfair to them, and that there may be a possible problem with them continuing employment with Numac.’ 13 No evidence that this was or might be the case was put.
[23] Under cross examination Mr Heppell specifically denied that he resigned. He also refuted the claims of Mr McMullen that he, Mr Heppell, said to Mr McMullen that if he did not get the pay increase and other benefits outlined in the memo he would resign on one week’s notice.
[24] Mr Heppell gave evidence that went to what he claims is his right to be paid out unused sick leave. Mr Heppell’s evidence is that he was told at the time of his employment interviews that ‘employees were paid out sick leave’ 14 and that this was paid out in 2005 and 2006 (although evidence was only produced of the 2005 payout15). Under cross examination Mr Heppell conceded that the company had ceased paying out sick leave in 200716 to administrative employees.17
[25] Mr Heppell further submitted that he had incurred costs associated with broadband that he had arranged to be installed at his home address to facilitate his working from home. The broadband installation had not been required by the company to accommodate him working from home. 18 Mr Heppell had not commenced working from home at the time of his dismissal. He sought reimbursement of this expenditure.
[26] Mr Heppell is seeking payment with respect to annual leave, accrued sick leave, notice, the cost of broadband installation and compensation for stress and humiliation. 19
Mr McMullen
[27] Mr McMullen for Numac gave evidence that Mr Heppell was a good worker. 20
[28] The evidence of Mr McMullen is that on the morning of 9 October he was called into Mr Heppell’s office who said words to the effect that ‘after seeing what the Hays recruitment survey states, you have been ripping me off for the last three years, so you need to pay this [amount] or I’m leaving. To make it easier for you I’ve got this and all you need to do is sign.’ 21 At this point Mr Heppell gave Mr McMullen the memo reproduced above. Mr McMullen said to Mr Heppell ‘you have got to be fucking joking’ to which Mr Heppell replied ‘Well I’m giving you one week’s notice.’22
[29] Mr McMullen says he then left Mr Heppell’s office and spoke to the company general manager Mr Hansen who, after considering the memo, raised issues with respect to security (Mr Heppell had access to all company computer systems including customer data and payroll) and suggested Mr Heppell be paid out the one week’s notice he gave. 23
[30] Mr McMullen then returned to Mr Heppell’s office, advised him he would be paid the one week’s notice and asked him to not touch his computer, to pack his personal belongings and leave.
[31] Under cross examination Mr McMullen expressly denied that he had told Mr Heppell he was sacked or fired. 24
[32] Mr McMullen also denied that it was his temper and ego that caused him to terminate Mr Heppell’s employment. 25
[33] On the payout of sick leave Mr McMullen gave evidence that Mr Heppell had written the memo of 20 December 2005 26 that paid out his unused sick leave for that year and that, once it was discovered, Mr Heppell was told that ‘that was not to happen again’27 and that it was incorrect in that ‘he was not entitled to that [pay out].’28 Mr Heppell was told to ‘not write his own wage review’ and give it to Mr Heppell to sign.29
[34] Mr McMullen, gave further evidence that Mr Heppell’s request to work from home was in the initial proposal stage and that there had been some discussion as to how work would be delivered to Mr Heppell. 30 There was specifically no discussion with respect to broadband services.31
[35] Mr McMullen’s evidence is that, following Mr Heppell’s departure, it was another couple of weeks prior to the employment of a replacement employee (an accountant) and that it ‘was a big struggle.’ Mr McMullen attempted to do the work previously done by Mr Heppell but he had left school at 15 and did not have the background (to be able to do the work). Even post the employment of the new employee it was difficult as there was no-one who could do a hand over of the work. 32
Mr Hansen
[36] Mr Hansen’s evidence is that Mr McMullen came to him on 9 October 2009 and said that he had been ‘put on the spot’ by Mr Heppell. Mr McMullen provided Mr Hansen with a copy of the memo, 33 advised that he, Mr McMullen, had told Mr Heppell he would not sign the memo and that Mr Heppell had responded by saying that he was resigning with one week’s notice.
[37] On considering the memo Mr Hansen determined that, given Mr Heppell’s access to the financial and other records of the company, it would be better if Mr Heppell left immediately.
[38] Mr Hansen also gave evidence that as they had not (at that time) found anyone to replace Mr Heppell (who was going to work from home on reduced hours and tasks) Numac had no intention of terminating his employment prior to Mr Heppell stating he no longer wished to work for the company. 34 He also testified that the loss of Mr Heppell resulted in difficulties of the company.35
Mr Morrice
[39] Mr Morrice gave evidence of the phone conversation he had with Mr Heppell on the morning of 9 October 2009. Mr Morrice’s evidence is that Mr Heppell rang him and said that he was leaving. Mr Morrice then went down to Mr Heppell’s office where he shook Mr Heppell’s hand and said goodbye.
[40] Mr Morrice expressly denied that Mr Heppell, when he telephoned, had said words to the effect that he had been sacked. 36
[41] Under cross examination Mr Morrice stated that Mr Heppell had shown him the memo on the morning of 9 October and had said words to the effect that ‘he might get sacked for this.’
[42] Numac’s submission is that Mr McMullen’s version of events as to what took place on the morning of 9 October 2009 should be preferred to that of Mr Heppell. Further they claimed that it would be illogical for Numac to terminate Mr Heppell’s employment when, if they had wanted to terminate him, they could easily gave done so with minimum adverse effect on the company’s operation after they had employed an accountant to replace him.
[43] Numac submitted that, even if it was found that Mr Heppell’s employment was terminated at the initiative of the employer there was no evidence on which it could be found that the dismissal was unfair within the meaning of the Act.
[44] Further Numac argued that there was no agreement to pay out sick leave to Mr Heppell and that Numac never agreed to meet the cost of broadband for Mr Heppell. In addition they submitted that under s.392(4) of the Act Fair Work Australia is unable to award compensation for stress and humiliation.
Findings and conclusions
[45] Remedies for unfair dismissal are rightly directed at those circumstances where the employer takes action to end the employment relationship and the termination is harsh, unjust or unreasonable.
[46] In Re: ABB Engineering Construction Pty Limited 37 a Full Bench of the Australian Industrial Relations Commission found that often it is ‘a narrow line that distinguishes conduct that leaves an employee with no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer…It is important that that line be closely drawn and rigorously observed. Otherwise the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination.’38
[47] Whilst this matter does not go to the question of whether the conduct of the employer caused the resignation, caution should be exercised in circumstances where there is disagreement about whether there was in fact a resignation or termination at the initiative of the employer. Access to a remedy for unfair dismissal cannot be able to be invoked where it is the actions of the employee and not the employer that lead to the termination of the employment.
[48] In Re: Moly Mines Limited 39 a Full Bench of the Australian Industrial Relations Commission considered the meaning of the expression ‘termination at the initiative of the employer’ and determined that the relevant principle, following a consideration of the relevant case law, is: ‘did the employer take some action which is intended to bring the employment to an end or had the probable result of bringing the employment relationship to an end.’40
[49] This matter requires that I decide which version of events on the morning of 9 October 2009 I should accept and hence determine whether Mr Heppell resigned from his position or his employment was terminated at the initiative of his employer.
[50] Only two people were present at the time of the conversation between Mr Heppell and Mr McMullen and each of these has given diametrically opposite evidence as to what was said. Mr Heppell says Mr McMullen told him his employment was terminated while Mr McMullen says Mr Heppell said he was giving one week’s notice.
[51] It is true that individuals may say or do things in the heat of the moment that they later regret. Such things may result in or cause the termination of employment. It does not appear to me that Mr McMullen did anything in a temper or the heat of the moment – as was suggested by Mr Heppell – or otherwise that resulted in the termination of Mr Heppell’s employment by the employer. On Mr Heppell’s own evidence Mr McMullen rejected the memo and left. He returned some 10 minutes later to terminate Mr Heppell’s employment but asked him to work out 2 months until a replacement arrived. He then left and returned a third time – this time to ask Mr Heppell to pack his belongings and leave the premises. But even then he gave Mr Heppell time to call at least one colleague (Mr Morrice) to say he was leaving and allowed time for Mr Morrice to come down and say goodbye. These are not the actions of a person acting in a temper. There is nothing to suggest that Mr McMullen took anything but a calm and measured approach to the situation.
[52] It appears more likely that Mr Heppell’s actions caused the end of his employment at a point in time where he believed he was being underpaid and where his request for a pay increase, along with a lump sum that he considered justified, was emphatically rejected by his employer in the clearest terms. I find that Mr Heppell’s actions are those that more likely resulted in the termination of his employment. It is possible these actions occurred in the heat of the moment but they are not actions for which the employer is responsible.
[53] On more than one occasion Mr Heppell had asked for a pay rise – sometimes by email, other times in person. On none of these occasions had there been any adverse consequences – or suggestions of such.
[54] Discussions were underway to facilitate Mr Heppell being able to work from home. Numac stated he was a good worker and they were apparently content to help with his home difficulties by allowing him to work from home.
[55] Mr Hansen’s evidence of what occurred between Mr McMullen and Mr Heppell does not assist in determining the issue. He was not present when the conversation between Mr Heppell and Mr McMullen occurred. Mr Hansen’s evidence however is consistent with that of Mr McMullen.
[56] Mr Morrice’s evidence is that Mr Heppell said to him that he was leaving whilst Mr Heppell’s evidence is that he said to Mr Morrice that he had been fired. Mr Morrice’s evidence however is consistent with Mr McMullen’s evidence that Mr Heppell had handed in his notice.
[57] Mr Heppell failed to call any witnesses who he claimed existed and could support his version of events.
[58] Ultimately I am not persuaded it would make any sense for Numac to dismiss Mr Heppell is a way that resulted in the company placing itself in a position where they had no-one able to do the work previously undertaken by Mr Heppell and where they are still feeling the effects of his departure.
[59] On the basis of the evidence I cannot find that the employer took any action that was intended to bring the employment relationship to an end.
[60] On the evidence I find that Mr Heppell resigned his employment. As such there was no termination of employment at the initiative of the employer. There is therefore no jurisdiction for Fair Work Australia to deal with the matter.
[61] Given this finding I do not need to determine if the dismissal was harsh, unjust or unreasonable.
[62] Whilst it is not necessary to do so I find that there is no evidence that Mr Heppell was eligible to have his sick leave paid out at the conclusion of his employment with Numac. Apart from one payment made to him in 2005 there is nothing that would convince me that this was a condition of his employment. The fact that it was not paid out in 2007 and 2008 (and possibly 2006) support my conclusion. In any event I note that Mr Heppell took no action when, on his claim, the employer ceased making such payments to administrative staff. There is also nothing that would lead me to conclude that Numac had agreed or sought Mr Heppell to have broadband installed at his residence in Rye.
[63] The application for remedy from unfair dismissal is dismissed. An order to that effect will be issued.
COMMISSIONER
Appearances:
Mr P.Heppell on his own behalf.
Ms R. Nelson for the Respondent.
Hearing details:
Melbourne
2010:
May 24.
1 PN74-75.
2 PN92-95, 416.
3 PN418-9.
4 Exhibit H4.
5 Exhibit H1. This material was the same material Mr Heppell filed with his application to Fair Work Australia in October 2009.
6 Exhibit H3.
7 Exhibit H2.
8 PN17.
9 Exhibit H4.
10 See PN21 and 162.
11 PN21-22.
12 Exhibit H2, transcript (?)
13 PN548.
14 PN83.
15 Exhibit H6.
16 PN228.
17 PN244.
18 PN82.
19 Mr Heppell has received his payment in lieu of one week’s notice and his accrued annual leave.
20 PN279.
21 Exhibit N2, paragraph 8.
22 Exhibit N2, paragraphs 12-13.
23 Exhibit N3, paragraph 15.
24 PN349.
25 PN375.
26 Exhibit H6.
27 PN289.
28 PN290.
29 PN292.
30 PN413.
31 PN284.
32 PN310-316.
33 Exhibit H4.
34 Exhibit N3, paragraph 18.
35 Exhibit N3, paragraph 20.
36 PN505-509.
37 Print N6999 (9 December 1996).
38 Print N6999 (9 December 1996), p 12.
39 [2008] AIRCFB 1088 (29 July 2008).
40 [2008] AIRCFB 1088 (29 July 2008), at [21].
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