RH v C Pty Ltd
[2010] FWA 2712
•13 MAY 2010
[2010] FWA 2712 |
|
DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
RH
v
C Pty Ltd
(U2009/14155)
COMMISSIONER HAMPTON | ADELAIDE, 13 MAY 2010 |
Application for remedy for unfair dismissal - Termination of employment - Whether dismissal at the initiative of the employer - Whether resignation - Dismissal found - Whether harsh, unjust or unreasonable.
[1] Mr RH (the applicant) has made an application to Fair Work Australia claiming that he was dismissed in November 2009 by C Pty Ltd (the employer) and that the dismissal was unfair.
[2] The employer contends that the applicant resigned from his employment and that as a result, there was no jurisdiction for the matter to be further considered by Fair Work Australia.
[3] The consideration of this matter has been confined initially to the question as to whether the applicant was terminated at the initiative of the employer and if so, whether the dismissal was unfair within the meaning of the Act. This approach was adopted given that related matters involving the parties under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act) are unresolved and may impact upon any remedy that may arise in this matter.
[4] As this matter involves contested facts, I was required by s.397 of the Act to either conduct a conference or a hearing. After consultation with the parties as contemplated by s.398 of the Act, I determined that this matter would be subject to a determinative conference. 1 As a result, I have used the initials of the parties and their witnesses in this decision.
[5] Mr Nicholls from the Construction, Forestry, Mining and Energy Union represented the applicant and Mr Boylen of Boylen Clifton HR Solutions represented the employer with permission. Sworn evidence was given to Fair Work Australia by:
- Mr RH – the applicant;
- Mr AD – Factory Hand with the employer– called by the applicant;
- Mr RS – Production Coordinator with the employer – called by the applicant; and
- Mr DW – Plant Manager of the employer.
[6] I have some reservations about each of the witnesses in this matter. The applicant’s evidence was in general terms clear and convincing, however his evidence about the precise sequence of events in the immediate lead up to the alleged resignation was not completely convincing. Mr DW gave his evidence truthfully and for the most part in a convincing fashion. However, he had a tendency at some points to adjust his evidence to further enhance the employer’s case. The evidence of Mr RS and Mr AD was of limited value given the lack of recall of much of the detail of the events of the day in question. In addition, their witness statements were completely prepared for them and contained some information that they could not confirm.
[7] The employees to whom the applicant allegedly communicated the resignation were not called by the employer. In light of an express warning given to the employer about the matter and in the absence of a satisfactory explanation for them not being called, I draw the inference that their evidence would not have assisted the employer. 2
The statutory context
[8] Section 385 of the Act provides as follows:
“385 What is an unfair dismissal
(1) 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.”
[9] Section 386 of the Act provides as follows:
“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.”
The positions of the parties
[10] The Small Business Fair Dismissal Code is not relevant here and the employer has not contended that this is a case of a genuine redundancy.
[11] The applicant contends in effect that he was dismissed by the employer when a letter purporting to accept his resignation and paying four weeks in lieu of notice was given to him. In that context, the applicant rejected any notion that he had resigned his employment.
[12] The applicant also argued that it was unfair and unreasonable for the employer to assume a resignation and pointed to the communications and actions surrounding the alleged resignation as evidence that there was no intention to resign.
[13] Further, the applicant contended that the information relied upon by the employer was equivocal and open to interpretation and that there was no evidence to support the employer’s theory that the applicant had changed his mind on the resignation after the event.
[14] The employer contends that the applicant resigned his employment by advising the office staff of his intention, removing his personal items and deleting “his” files from the computer system, and leaving the workplace without alternative explanation.
[15] The employer also argued that the applicant failed to contest his resignation when given the opportunity to do so and that in fact he changed his mind in light of advice that he may have prejudiced his rights in a related matter.
[16] The employer also contended that it did not have any intention to dismiss the applicant and did not do so.
[17] I have not outlined the full extent of the various submissions provided in this matter however I have had regard to the same in determining the relevant aspects of this matter.
Findings of fact
[18] As outlined above, I am required to consider this matter in the context of some unsatisfactory evidence. I have reservations about each of the witnesses and those office staff who could have given direct evidence about what was actually said or done at the time of the alleged resignation, did not give evidence and their statements as provided to the employer could not be tested.
[19] Having regard to those reservations and to the evidence that is before me, I find the following on the balance of probabilities.
[20] The applicant has been an employee of the employer (including its successor) for some 26 or 27 years. He has held a number of senior positions and although there is a dispute about the precise name and duties formally occupied by the applicant, it is clear that in November 2007, he was involved in a sales role as part of a modified work programme.
[21] The applicant has suffered with a medical condition associated with his shoulders, back and neck since 2002 that has limited his capacity to work. The condition has been subject to an accepted compensation claim under the WRC Act. In July 2009, the applicant commenced work within the front office of the employer as part of an approved modified work programme. In August 2009, the hours being undertaken by the applicant as part of the approved programme were reduced from 34 to 20 hours per week.
[22] In the six months prior to the alleged resignation, the applicant had received two warnings associated with what was seen by Mr DW as a lack of vigilance in the applicant’s supervisory role. These matters were resolved and I find played no part in the events surrounding the cessation of employment.
[23] In October 2010, the applicant, the employer and the “applicant’s” rehabilitation provider attended a case conference. That conference discussed the continuing problems associated with the applicant’s condition in the context of the work that he was undertaking and the difficulties with obtaining suitable work for him with the employer.
[24] In the lead up to the alleged resignation on 11 November 2009, the applicant did openly discuss his circumstances within the sales and administration office of the employer. In that context he indicated that he may not be returning to the office at the end of the week. At that time, the applicant had consulted both a rheumatologist and his treating Doctor and was anticipating that the modified work programme would be altered such that he would no longer be attempting to work at the employer’s workplace. This was in the context of his continuing significant medical problems and his apprehension that there was no safe or appropriate work for him within the business.
[25] On 11 November 2009, the applicant attended at work for two hours and in the context of continuing pain associated with his medical condition, decided to leave the office. He made some attempt to contact Mr DW by phone, but when contact was not made he informed the office staff that he was leaving, that the employer did not have suitable duties for him and implied that this could be his last day in the office. Whilst the applicant did tidy his desk, he did not take all of his personal items, including his reading glasses and the special (ergonomic) chair supplied by “WorkCover”. The applicant also sent an email to Mr DW in the following terms (with the names of the parties and individuals changed): 3
“…
D,
I came in this morning and entered 8 pages of (.. name of customer) orders, and 2 orders onto M1.
With R and A as Witnesses, I also tried to ring you but your phone was turned off.
As you can see by my PMC (prescribed medical certificate) the report has came back from the Rheumatologist declaring that a full time desk job was unsuitable for me. C Pty Ltd has made it clear that there are no alternative duties available so I have gone home and will wait for direction from LB @ EML.
Kind Regards
RH
…”
[26] There is a dispute as to whether the applicant deleted files from the computer. Based upon the evidence before me, I find that the applicant did delete a desktop short-cut to his files however I am not satisfied that the actual work records and documents produced by the applicant were deleted from the system.
[27] Upon attending for work, Mr DW was informed that the applicant had left and had made comments to the effect that he was not returning to the office and that Mr DW should not attempt to contact him.
[28] On 12 November 2009, the applicant did not attend work in the context of the need to stay at home and care for his daughter. He did send an email to Mr DW and others at the employer advising of his circumstances in the following terms: 4
“…
D, B, R,
Workcover saga aside, I won’t be in today. C (the applicant’s daughter) is home as she is not coping with the heat at school.
RH
…”
[29] On the same day, the employer through Mr DW sent an email to the applicant confirming that it had accepted the applicant’s “resignation” in the following terms: 5
“…
RH,
Based on your correspondence yesterday and your actions in deleting all emails and files on your computer related to your work, the vacation of your desk and your notification to staff of your intention to terminate your employment, I therefore accept your resignation.
Given the lateness of your notice, your termination payment will be paid at the next regular pay day.
DW
Managing Director – South Australia
…”
[30] The email from the employer was apparently not received by the applicant. Although Mr DW denied the suggestion, I find that the “correspondence” referred to in the employer’s email of 12 November 2009 included the applicant’s earlier email of 11 November.
[31] The applicant attended for work on Friday 13 November 2009 and Mr DW asked him why he was at work. The applicant indicated that he had come to work and was then informed by Mr DW that he had been telling everyone that he had resigned. The applicant denied that suggestion and indicated that he would go home until everything was sorted out. The applicant subsequently received advice from his rehabilitation consultant that he should not return to work until he had had the chance to discuss the situation with the relevant WRC Act Claims Manager.
[32] Based on the advice of the rehabilitation consultant, the applicant did not attempt to attend for work after 13 November 2009.
[33] On 19 November 2009, the applicant received a letter, which was apparently sent on 17 November by the employer. That letter advised as follows:
“…
Dear RH,
Please find attached your final payment details which will be paid into your account this Thursday, November 19.
As per the terms of your employment, and company policy and procedure upon termination of your employment with C Pty Ltd, you are bound by the terms of confidentiality and restraint of trade which therefore prohibits you from approaching the customers of C Pty Ltd for a period of 12 months from this date.
Kind regards
DW
Managing Director”
[34] The applicant responded to the employer by email on the same day questioning why he had been terminated.
[35] The applicant also apparently removed a copy of an invoice when he collected his belongings. I interpose that the employer sought in these proceedings that this material be returned, which should now be done, and contended that the applicant should not have taken it from the workplace.
[36] The invoice (from a consultant hired to give advice in relation to the applicant) did apparently concern the applicant and in fact named him in its contents. The applicant’s evidence that he did not seek out the invoice was not seriously challenged.
Was there a dismissal at the initiative of the employer?
[37] The applicant has rejected any notion that he resigned and does not seek to rely upon s.386(1)(b) of the Act. 6 On that basis, it is necessary to consider whether the applicant resigned or alternatively, was dismissed at the initiative of the employer as contemplated by s.386(1)(a) of the Act.
[38] I accept that the employer, through Mr DW, may have formed the view that the applicant intended to resign. I also accept that the applicant did not intend to resign his employment. The question is however whether, based upon the evidence before Fair Work Australia, the statements and/or conduct of the applicant should be objectively considered to be a resignation.
[39] A finding that a party has terminated an employment relationship (be it a resignation or termination) should not be made lightly. Given the consequences of any such action, I consider that a clear and unequivocal statement and/or course of conduct must be present to bring about that result.
[40] Based on the evidence, it is clear to me that the applicant expected that the modified work programme, which involved him working within the office environment with the employer, would be altered on medical advice and that no alternative employment would be available within the employer’s business. In that context, he announced an expectation that he may not be returning to that role.
[41] The applicant’s statements and his conduct in leaving prior to the attendance of Mr DW on 11 November 2009 did rightly raise issues for the employer as to the applicant’s intentions. However, the statements to the staff were equivocal and were in fact taken out of context to assume a meaning that was not reasonably or objectively intended. Further, given that the applicant did, in the email to Mr DW before leaving the office, refer to his medical condition and recent medical advice, indicate that he was going home (rather than leaving the job) and that he was awaiting direction from the WRC Act claims officer responsible for his case, it was opportunistic, invalid and inappropriate for the employer to assume or imply that a resignation had been given.
[42] The applicant’s subsequent conduct was also completely consistent with the absence of a resignation. There is also no evidence to support the contention that the applicant changed his mind having been advised by his rehabilitation consultant or anyone else.
[43] The employer’s communication to the applicant dated 17 November 2009, effectively brought the employment relationship to an end.
[44] On that basis, the applicant was dismissed at the initiative of the employer.
Was the dismissal harsh, unjust or unreasonable?
[45] The Act relevantly provides as follows:
“387 Criteria for considering harshness etc.
In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, FWA must take into account:
(a) whether there was a valid reason for the dismissal related to the person’s capacity or conduct (including its effect on the safety and welfare of other employees); and
(b) whether the person was notified of that reason; and
(c) whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person; and
(d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal; and
(e) if the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal; and
(f) the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(g) the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
(h) any other matters that FWA considers relevant.”
[46] During the course of the conference, I requested Mr Boylen for the employer to confirm the position of the employer on this matter, in the event that I found that the applicant has been dismissed. Mr Boylen accepted that if there was a dismissal then the appropriate procedure had not been followed and that the employer had no grounds in mind that would have been relevant to the applicant’s termination. 7
[47] Despite that concession, s.387 contemplates that an overall assessment as to the nature of the dismissal must be made by FWA. In so doing, the Act sets out a number of considerations that are, where relevant, to be taken into account.
[48] It is convenient therefore to use the various provisions of s.387, with reference to the relevant circumstances, to outline my consideration of the matter.
Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).
[49] Valid in this context is often considered to be whether there was a sound, defensible or well founded reason for the dismissal. Further, in considering whether a reason is valid, the requirement should be applied in the practical sphere of the relationship between an employer and an employee where each has rights and privileges and duties and obligations conferred and imposed on them. That is, the provisions must be applied in a practical, commonsense way to ensure that the employer and employee are each treated fairly. 8
[50] The applicant’s decision to leave the workplace on 11 November 2009 without waiting for Mr DW is a live issue in this matter. This did not amount to an abandonment of employment but was not an appropriate action. The applicant was however in significant discomfort at the time, he did advise Mr DW through an email, and was subject to a modified work programme.
[51] The applicant’s removal of the consultant’s invoice and the deletion of the computer shortcut do not in the circumstances provide a valid reason for dismissal.
[52] There is one further matter that has been raised by the employer subsequent to the hearing of this matter and I will deal with this at the conclusion of this decision. It is presently sufficient to indicate that no valid reason to justify the applicant’s dismissal exists in this case.
Section 387(b) – whether the applicant was notified of the reasons for dismissal.
[53] Although the basis of the assumed resignation was not valid, the applicant was in effect notified of the reasons for his dismissal in the letter dated 17 November 2009.
Section 387(c) – whether the applicant was given an opportunity to respond to any reason related to his capacity or conduct.
[54] At one level, the circumstances surrounding the alleged resignation may be considered to be relevant conduct for present purposes. If so, whilst the alleged resignation was raised during the course of a discussion on 13 November and in an earlier email, it was not in the circumstances raised in a manner that would have given the applicant a reasonable opportunity to respond.
Section 387(d) – any unreasonable refusal by the employer to allow the applicant to have a support person present to assist in any discussions relating to his dismissal.
[55] This did not arise in this matter.
Section 387(e) – if the dismissal is related to unsatisfactory performance by the applicant – whether the person has been warned about that unsatisfactory performance before the dismissal.
[56] This is not relevant in this matter.
Section 387(f) – the degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.
Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.
[57] The employer is not a large employer and does not appear to have sophisticated polices and procedures in place or (in-house) dedicated human resource management specialists. No doubt this context is relevant and has impacted upon the manner in which the cessation of the applicant’s employment was handled. It has however had access to advice in relation to the applicant more generally, and in particular the WRC Act aspects of the relationship. In any event, the fact is that a resignation was assumed in circumstances where such was not appropriate or justified and the lack of justification for what I have found to be a dismissal cannot in this case be mitigated by the circumstances of the employer.
Section 387(h) – any other matters that FWA considers relevant.
[58] The applicant’s long period of service with the employer is a relevant consideration in this matter.
[59] The other relevant considerations have been dealt with in the context of the statutory criteria outlined above.
Conclusions
[60] In light of my findings in this matter and having regard to the considerations outlined in s.387 of the Act I am satisfied that the applicant was dismissed at the initiative of the employer and that the dismissal was harsh, unjust and unreasonable.
[61] In that context, this matter will matter will now be listed to deal with remedy as contemplated by Division 4 of Part 3-2 of the Act. Directions will be issued in due course.
[62] I earlier alluded to some additional material provided by the employer after the conclusion of the conference in this matter. On 23 April 2010, the employer provided to Fair Work Australia a copy of a Statutory Declaration said to be from a truck driver of another business making allegations about the applicant’s use of a charge arrangement in relation to the employer, after the cessation of his employment.
[63] This additional material was not apparently supplied by the employer or its agent to the applicant and was certainly not raised during the course of the proceedings. The allegation is serious but concerns conduct after the dismissal. In the absence of any further explanation, I have declined to reopen the present matter to deal with these allegations and I have not had regard to that material.
[64] These allegations may however, if supported by satisfactory evidence, be relevant to the issue of remedy if subsequently raised in that context.
COMMISSIONER
Appearances:
M. Nicholls of the Construction, Forestry, Mining and Energy Union for the applicant.
R. Boylen of Boylen Clifton HR Solutions (Agent) with permission for the respondent employer.
Hearing details:
2010
Adelaide
7 April
1 The conference was conducted in private as required by s.398(2) of the Act, and although the parties consented to the publication of any decision by FWA concerning this matter, I consider that the private nature of the conference should be reflected in the decision.
2 These implications were canvassed at transcript PN23. There was some documentary evidence from these employees (Ms TW and Ms RM) that was submitted by consent, however the weight that I am prepared to given to them was limited in light of the inferences I have drawn. See: Jones v Dunkel and Another [1959] HCA 8; (1959) 101 CLR 298.
3 Exhibit A11.
4 Exhibit A10.
5 Exhibit R3.
6 Transcript PN 30 and 31.
7 Transcript PN1102 and 1107.
8 Selvachandran v Peterson Plastics Pty Ltd (1995) 62 IR 371 as cited in Potter v WorkCover Corporation, Ross VP, Williams SDP, Foggo C, 15 June 2004 PR948009
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