Robert Butera v VDO Industries Pty Ltd
[1995] IRCA 469
•24 Aug 1995
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL
TERMINATION - ACCRUED JURISDICTION - BREACH OF CONTRACT.
Industrial Relations Act 1988, S170EA, S430.
CASES:
Siagian v Sanel Pty Ltd [1994] 1 IRCR 1,
APESMA v Skilled Engineering [1994] 1 IRCR 106
Grout v Gunnedah Shire Council [1994] 1 IRCR 143
Parisienne Basket Shoes Pty Ltd v Whyte [1938] 59 CLR 369
ROBERT BUTERA v VDO INDUSTRIES PTY LTD
No. VI-2151/95
Before: Ryan JR
Place: Melbourne
Hearing: 9, 10 and 24 August 1995
Judgment: 24 August 1995
Reasons for Judgement: 1 September 1995
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-2151/95
B E T W E E N: ROBERT BUTERA
Applicant
AND:VDO INDUSTRIES PTY LTD
Respondent
RYAN JR
MINUTES OF ORDER
24 AUGUST 1995
THE COURT ORDERS THAT:
The application under Section 170EA for remedy for unlawful termination of employment be dismissed.
The respondent pay damages in the sum of $4,561.40 for breach of contract.
NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.
IN THE INDUSTRIAL RELATIONS
COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY Matter No VI-2151/95
B E T W E E N: ROBERT BUTERA
Applicant
AND: VDO INDUSTRIES AUSTRALIA PTY LTD
Respondent
COURT: RYAN JR
PLACE: MELBOURNE
DATE: 1 SEPTEMBER 1995
REASONS FOR JUDGMENT
THE CLAIM
The applicant
claims unlawful termination of employment
seeks compensation
alleges harassment and a management/union conspiracy to get rid of him from the workplace
states that he was forced against his will to take a retrenchment package
asserts that the termination of his employment by the employer was without valid reason and without adequate counselling, warning and advice and was harsh, unjust and unreasonable
claims for breach of contract in the associated jurisdiction of this court
THE RESPONSE
The respondent
denies unlawful termination of employment at the initiative of the employer
states that information had been provided to management of the applicant’s interest in and willingness to accept a voluntary departure package
claims that the applicant accepted a secret management/union arrangement which while it might have borne some characteristics of an involuntary retrenchment package, was, in reality, a negotiated voluntary departure package with an additional and secret $3,000 payment.
RECORDED CONVERSATIONS
An important exhibit (Exhibit A1) is a tape recording of conversations and public addresses secretly taped by the applicant on 6, 7 and 8 March. The Court listened to the tape in its entirety. The Respondent did not object to the tape as an exhibit indeed the Respondent’s first exhibit, (Exhibit R1) is a substantially accurate transcript of the tape.
FINDINGS 24 AUGUST 1995
On the basis of all the exhibits and particularly Exhibit R1 and the evidence at the hearing, I concluded at the conclusion of the hearing on 24 August 1995 that the applicant was not terminated at the initiative of the employer and that the application under S170EA was to be dismissed. However, I found a breach of contract in the associated jurisdiction of the Court and awarded damages in the sum of $4,561.40. I indicated that reasons for the decision would be provided later. These are the reasons.
CLAIM OF UNLAWFUL TERMINATION
At page 6 of Exhibit R1, the applicant is recorded in the car park at the work place in discussion with Frank Leo, the Assistant Secretary of the Victorian Branch of the AWU. The applicant is a member of the union and until a few months before the ending of his employment he was a shop steward. The discussion takes place at about 4:00 pm after the Managing Director, Chris Mills, had addressed staff on redundancies and Mr Leo had also addressed his members. These addresses were also secretly recorded by the applicant.
The applicant stated in respect of redundancies (i.e. voluntary redundancy packages).
“I don’t care actually, I think I might take it, personally.”
During his evidence in the hearing the applicant stated:
“Part of me was trying to protect myself. Part of me was preparing to take the package.”
At the bottom of page 8 and the top of page 9 of Exhibit R1 in the course of the same discussion the following exchange takes place:
Applicant:I don’t want to but I’m just saying I feel I gotto, I feel like they don’t, they want me out. It’s just the harassment that I am getting, that’s what I feel.
Leo:What sort of harassment are you getting?
Applicant:Oh just, I don’t really wanna get into it, I don’t wanna worry about it. I’m not bitching or nothing like that....
In evidence in the trial the applicant claimed that he really did not want to leave and take a package. This is contrary to comments recorded on tape in his discussions on 6, 7 and 8 March. It is also quite contrary to the evidence of Reno Desiarto, Sandra Drummond, Jean-Claude Gassin, Philip Adrian Dean, Roderick (Rick) Moore and Frank Leo and specifically and especially contrary to the evidence of Desiarto, Drummond, Moore and Leo.
The applicant claims that he clearly rejected a departure package in a second discussion with Leo around 10:00 am on 7 March. This was his first discussion with Leo on that date. This is the only relevant discussion that is not on tape. The applicant claims that he had no opportunity to record the discussion. However, Leo is adamant that in this discussion the applicant insisted on his intention to leave and it was Leo who tried to persuade the applicant to stay.
I accept the evidence of Leo in this regard and generally I accept the evidence of the respondent’s witnesses in preference to the applicant. There are a number of inconsistencies in the applicant’s evidence.
Again, later in the morning or probably about 2:00 pm on 7 March, the applicant’s own hidden tape records this comment:
“This is what I’m saying to you Frank, if they want me to go I’ll just go, because I’ll go today, because I’m not going to fight a cause for nothing.”
There is also the record of Leo’s side of a telephone negotiation with Jean-Claude Gassin which, on the evidence of both participants, led to a secret agreement that the applicant was to be paid an extra $3,000 to leave his employment immediately. The relevant comments from Leo and the applicant are recorded at page 13 of Exhibit R1.
Leo:I want you to stay here and I want you to listen to this OK. I’m gonna say something to him, but if you fucking say one word to anyone of these guys I’m gonna in trouble.
Applicant:Nobody knows nothing alright.
Leo:If you say one word, cause someone else is gonna get the arse from here today.
Applicant:Yeah fine.
Leo:If you let me down I’ll I’ll.
Applicant:You know I won’t let you down. Frank you know I’ve never let you down before, you know that.
Leo:(on the phone) It’s me. OK he’ll go today but you tap him on the shoulder and because he’s going today, because I said to him the deal was going to be that he was gonna go in six to eight weeks, at the second shot, OK, you gotta put something extra in his pay. You put another two grand in his pay, two grand in his package, actually two grand isn’t enough. What’s his rate of pay? Hold on a minute let me work out what is his rate of pay? Three grand and he is out and I’ll tell him that that is it. That is only for him, that’s on top of the package that everyone gets, he’ll get an extra three grand for going today instead of in the second shot. And no-one else knows. Deal? OK.
Applicant:That’s it Frank, I’m happy.
Leo:I’m sad to see you go mate, I really am, my heart bleeds.
Applicant:Frank, I’m happy. You know why, because you can’t work with people it doesn’t matter what they want they want you out.
Leo:You just keep quiet, alright?
Applicant:No-one knows nothing mate, I don’t care.
Leo:The three grand that you got, that’s extra OK.
Applicant:I don’t care Frank. I’ve been so flexible to help them...
Leo:Someone else is gonna get the arse today...there’s two that they want, you and someone else. That other someone else is not going to get what you get, alright, they’re not gonna get what you got. You’re gonna get this four weeks package plus three grand on top of it OK. No-one knows though, don’t let me down because I will have the whole VDO...
Applicant:No, it’s alright, Frank, I’ll keep in touch, I’ll ring you every now and then and say hello.
Leo:Hey listen, when you leave I want you to leave the office. I want...to give me your name and address and everything because I’ll be looking for a job for you OK.
Applicant:Yeah no worries.
The applicant denied that these exchanges and negotiations indicated acceptance by him of a special retrenchment package.
He described the telephone negotiations between Leo and Gassin as:
“so sudden...so quick...it took me off guard”.
“I was in a submissive situation no matter what I said”
“When you are harassed for a year there is a limit to what you can do.”
“I was in a vulnerable state. He (Leo) was in control.”
“I was not happy. It was another way of saying....if I am going it is better to take a deal than be kicked out.”
“There is a limit to how much you can fight back.”
“The union official was pushing me out on behalf of the company.”
The stark evidence of the tape does not support the claims of the applicant that he was in effect constructively dismissed against his wishes. The tape does not support the union/management conspiracy theory. It does not support the rather wild claim of the applicant that he had “a suspicion that Frank Leo would eventually hunt me down”.
The following are extracts and summaries from the applicant’s evidence in cross-examination.
“I was not consciously thinking of myself as a volunteer. I was not really listening or soaking it in at all.”
“I still thought I was forced to go.”
“I did not feel like I was asking for the $3,000 sweetener.”
“There is a limit on how far you fight. Everything has its limits.”
“Yes it was a special case and in a way I was harassed out of my job. I still think I was harassed irrespective of what I may have said. Whatever I was saying was just the way it came out. It was not a conscious thing to mean anything.”
In his evidence the applicant made a number of claims which were tantamount to alleging that he never really consented to any redundancy package and was constructively dismissed.
I did not accept his evidence. It conflicted in many aspects with evidence given by the respondent witnesses and more importantly with his own responses on the tape which he himself secretly recorded.
I concluded that he accepted the secret deal negotiated between Leo and Gassin and willingly left the employment on the basis of a package which was intended to include 4 weeks pay for each year of service or part thereof.
It was thus not a termination at the initiative of the employer and the application under Section 170EA was dismissed.
(See Siagian v Sanel Pty Ltd [1994] 1 IRCR 1, APESMA v Skilled Engineering [1994] 1 IRCR 106 and Grout v Gunnedah Shire Council [1994] 1 IRCR 143.
BREACH OF CONTRACT
The Court had jurisdiction to deal with the claim for breach of contract even though it had concluded there had been no termination so as to found, in a jurisdictional sense, an application under S170EA (See Grout v Gunnedah Shire Council at 169 and 170 and Parisienne Basket Shoes Pty Ltd v Whyte [1938] 59 CLR 369 per Dixon J at 391
The controversy concerned a substratum of facts common to the statutory application and the breach of contract claim (Grout at 170).
The application was amended at the commencement of the hearing to include a claim for 10 weeks salary ($4,561.40).
There is a dispute between the parties as to whether the deal negotiated between Leo and Gassin included the 4 weeks per year of service or part thereof provided in involuntary departure packages or the 3 weeks per year of service or part thereof provided in the voluntary packages.
I concluded that while the deal amounted to a voluntary departure package it was a very special, albeit secret, voluntary departure package willingly accepted by the applicant and negotiated by Leo.
Gassin conceded that it was special but only to the extent of the extra $3,000 which was undoubtedly paid to the applicant. Gassin maintained that the secret arrangement negotiated with him by Leo did not include 4 weeks per year of service but 3 weeks per year of service. I did not accept Gassin’s evidence on this aspect. The tape of Leo’s part of the telephone negotiations and indeed Gassin’s own reference to “the 4 weeks” in the taped termination interview with the applicant are consistent with an arrangement and an agreement to pay the applicant 4 weeks per year of service as if his termination was an involuntary departure. I did not accept that Gassin’s reference, in this crucial termination interview, to the “4 weeks” as being just a general reference which he made in all termination interviews and which in all such interviews referred only to the package to recipients of involuntary departure packages. I concluded that Gassin was well aware that the arrangement with the applicant was special and secret and that, as he conceded in evidence, there were good and understandable reasons for keeping that arrangement private and confidential.
In my view the payment by the respondent of 30 weeks for almost 10 years of service was a breach of the agreement to pay the applicant an extra $3,000 plus 40 weeks for almost 10 years of service. I concluded that the failure to include the additional 10 weeks pay in the final package was a breach of contract and that is why I ordered damages for breach of contract of $4,561.40 being the additional 10 weeks.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan.
Associate :
Date : 1 September 1995
Appearances:
Solicitor for the Applicant : Martin Willoughby-Thomas
Solicitor for the Respondent : Rohan Millar
Date of Hearing : 9, 10 and 24 August 1995
Judgment : 24 August 1995
Reasons for Judgment : 1 September 1995
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