Robert Rainey v Victor Reilly Family Trust T/A Bucket Panels Pty Ltd
[2025] FWC 71
•13 FEBRUARY 2025
| [2025] FWC 71 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Robert Rainey
v
Victor Reilly Family Trust T/A Bucket Panels Pty Ltd
(U2024/6251)
| COMMISSIONER HARPER-GREENWELL | MELBOURNE, 13 FEBRUARY 2025 |
Application for an unfair dismissal remedy – jurisdictional objection – no dismissal – jurisdictional objection upheld – application dismissed.
Mr Rainey is 66 years old and was employed in the position of Estimator/Manager by Victor Reilly Family Trust T/A Bucket Panels Pty Ltd (Respondent) until his employment ended on 10 May 2024.
Mr Rainey claims that he was terminated by way of redundancy at the initiative of the Respondent and has made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for an unfair dismissal remedy. The Respondent objects to the application on the basis that there was no dismissal because Mr Rainey resigned from his employment.
Mr Rainey submits that if the Commission prefers the evidence of the Respondent being that he resigned from his employment then it should consider that the resignation came about in the “heat of the moment” and the Respondents immediate acceptance would mean that Mr Rainey was constructively dismissed.
The Respondent was incorrectly named in the Form F2. I have used my discretion under s.586 to amend the application to correctly identify the Respondent as Victor Reilly Family Trust T/A Bucket Panels Pty Ltd.
Factual Background
Mr Reilly is the Managing Director of Bucket Panels a family run business which has been operating for the past 44 years. The Respondent is an AAMI authorised automotive repairer and is also an authorised repairer for other agents including RACV, Blue Zebra and Youi. The Respondent has 17 employees.
Mr Reilly and Mr Rainey have known each other for approximately 40 years. Their friendship developed because they had a common interest in restoring old vehicles. They attended car shows together, air shows and did off road racing together as part of a team sponsored by the Respondent. They have also attended each other's family events and have had vacations together at Mr Reilly’s holiday house. On occasion, Mr Reilly would lend Mr Rainey his credit card so that he could purchase vehicle parts. Mr Reilly says Mr Rainey still owes him around $15,000 for the outstanding purchases, which Mr Rainey denies. Mr Rainey described Mr Reilly as “one of the most generous bosses”[1] he has ever worked for.
Mr Rainey was employed for a period of eight years by the Respondent as a full-time Estimator/Manager. Mr Rainey has had at least three periods of service with the Respondent. On each occasion he has resigned from his employment without providing written notice and then returned. On one occasion Mr Rainey resigned with several other employees and set up a business in opposition. Mr Reilly submits he became aware of Mr Rainey’s plans to leave when the business cards that had been ordered for the new business were accidentally sent to the Respondent. However, Mr Reilly held no malice and welcomed Mr Rainey back when the new business failed.
It is not in contention that Mr Rainey had an excessive annual leave balance because he seldomly took leave. Mr Reilly says in or around December 2023 he became concerned about Mr Rainey because he appeared worn out. He met with Mr Rainey in December 2023 and requested he take a period of annual leave. According to Mr Reilly, Mr Rainey preferred to cash out his annual leave so he could use the money to buy car parts for his restoration project. Mr Rainey didn’t want to take the leave and preferred to save it for his daughters upcoming wedding, however they came to an agreement and the annual leave commenced on 2 January 2024 which encompassed the period in which Mr Rainey’s daughter was to get married. During his absence Mr Rainey informed Mr Reilly that he had been diagnosed with early onset Parkinson’s disease and that his symptoms were being controlled with medication and therefore would not affect his work.
Mr Rainey had a car he was restoring and car parts stored at the Respondents premises. On several occasions during his leave Mr Rainey attended the workplace to work on his car. He also commenced taking his personal items out of the office and from the upstairs storage area where he kept some of his car parts that he had stored at the property.
Mr Rainey returned to work from his period of annual leave on 8 April 2024. He met with Mr Reilly in his office that morning. They chatted normally about each other’s health issues, his daughter’s wedding and the other things he did whilst on annual leave. There are two versions of the conversation that followed, according to Mr Rainey he was made redundant by Mr Reilly due to a downturn in work. According to Mr Reilly, Mr Rainey resigned from his employment and agreed to work out his notice period however refused to perform part of his duties.
Consideration
The reasons that led to Mr Rainey’s employment ending are contested. Mr Rainey submits should the Commission find that he resigned from his employment then the resignation occurred in the heat of the moment and the immediate acceptance by the Respondent would mean that he was constructively dismissed.
The remedy sought by Mr Rainey is only available if the Commission is satisfied that he has been dismissed. Relevantly, under section 386(1) of the Act, a person has been dismissed if their employment has been terminated at the employer’s initiative. For the purposes of the Act termination “at the initiative of the employer” means a termination brought about by an employer and which is not agreed to by the employee.[2] For the purposes of s.386(1)(a) a termination of employment can occur at the initiative of the employer even if it is not done by the employer but the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. For example a resignation in “special circumstances” such as when given in the “heat of the moment” may be unreasonable for the employer to accept immediately.[3] In such circumstances if the employer does not confirm the employees intention after a reasonable amount of time, the resignation may be characterised as a termination of the employment at the initiative of the employer.[4] The question is whether Mr Rainey was dismissed for the purposes of section 386(1) of the Act.
8 April 2024 meeting
Mr Rainey returned to work from a period of annual leave on the 8 April 2024 and early that morning he met with Mr Reilly in his office. It is not in contention that Mr Rainey’s employment ended during that meeting. The facts in dispute relate to what occurred after Mr Reilly and Mr Rainey had exchanged pleasantries.
Mr Reilly’s account of the meeting that took place on 8 April 2024 is that he had informed Mr Rainey that the quotations were up to date and asked him to focus on ordering parts which was part of his normal duties. He says Mr Rainey expressed his reluctance to perform the work because he preferred to do the quotes. Mr Reilly says he responded by stating that there were no quotes to be done, and he needed help with the parts ordering. According to Mr Reilly it was at this point Mr Rainey told him that “I don’t want to fucking do that. I’ll finish up then”. Mr Reilly says although he was taken aback, he said “okay then” and they proceeded to discuss the notice period and agreed on four weeks. Mr Reilly submits although Mr Rainey had declined to do the parts ordering which was approximately 30% of his role, however it is not in contention that he did agree to list excess or unwanted parts to sell on eBay for the remaining duration of his employment.
Mr Rainey gave a different account of the conversation that took place in the meeting on the morning of 8 April 2024. According to Mr Rainey, at no stage during the conversation did they discuss the work that needed to be done. Instead, Mr Reilly told him that because he was making some operational changes and restructuring the business his position was no longer required. According to Mr Rainey this was specifically as a result of the reduction of work from Suncorp and the concentration on Youi Insurance work so there would only be one estimator required to handle quotes. Mr Rainey says he asked why he hadn’t been consulted about the redundancy whilst on leave. He says Mr Reilly responded saying he couldn’t because it was illegal. Mr Rainey says that he didn’t know if it was illegal to discuss a redundancy.[5] According to Mr Rainey he was embarrassed about the redundancy so he asked Mr Reilly not to discuss it with other employees.
Was Mr Rainey dismissed?
Mr Rainey’s conduct prior to the meeting is a relevant consideration for reasons that will become apparent. Whilst on leave and prior to the 8 April 2024 meeting, Mr Rainey commenced removing his personal car parts from the Respondent’s premises. Mr Rainey had commenced removing his personal items from the office and from the upstairs storage area where he kept some of his car parts. Although Mr Reilly thought it was a bit strange, he didn’t question Mr Rainey. It wasn’t until after the meeting of 8 April 2024 that it occurred to Mr Reilly that Mr Rainey had already removed some of his personal belongings from the Respondent’s premises.
Ms Jacqui Campisi gave evidence on behalf of the Respondent in these proceedings. For the past 22 years Ms Campisi has performed bookkeeping and payroll duties for the Respondent. She attends the Respondent’s premises approximately one day per week. Ms Campisi has known Mr Rainey for the duration of his employment. In her capacity as bookkeeper Ms Campisi has assisted the Respondent with processing resignations and terminations from a payroll perspective. My observations are that Mr Reilly’s business practices are very informal and he is quite generous. His focus is on the long-term relationships he has with his employees and relies on Ms Campisi to take care of the formal processes involving employment related matters.
Approximately an hour after the 8 April 2024 meeting, Ms Campisi received a phone call from Mr Reilly informing her that Mr Rainey had resigned giving four weeks’ notice. Ms Campisi wasn’t shocked that Mr Rainey had resigned because during his annual leave she had observed him removing his personal vehicle parts he had stored at the Respondent’s premises. Ms Campisi had formed the view that Mr Rainey was removing his belongings during his period of leave knowing he hadn’t intended on continuing in his employment.
Ms Campisi attended the Respondent’s site on 11 April 2024 and made notes in the Lightning Payroll system recording Mr Rainey’s resignation and that he had provided four weeks’ notice. Ms Campisi produced the contemporaneous notes in these proceedings. Given that in her capacity as bookkeeper Ms Campisi has assisted the Respondent with processing resignations and terminations from a payroll perspective for the past 22 years, I find it to be unremarkable that Mr Reilly would have notified her after the meeting that Mr Rainey had resign. The evidence of the contemporaneous notes favours towards a finding that Mr Rainey did resign during the 8 April 2024 meeting.
Ms Langmair has been employed by the Respondent as a car detailer for 18 years. Ms Langmair says she has known Mr Rainey for the past eight years that he had been employed by the Respondent. They socialised during work functions but did not socialise outside of work. Ms Langmair also gave evidence that she had observed Mr Rainey entering the Respondents premises during his period of annual leave and that he was coming and going and removing his car parts from the premises.
Mr Rainey does not deny that he was removing his car parts from the Respondent’s premises during his period of leave. Mr Rainey’s evidence was inconsistent as to the reasons why he was removing his personal belongings from the Respondents premises during his period of annual leave. In his witness statement Mr Rainey says he had attended the workplace during his leave because he wanted to work on his personal vehicle that was stored at the Respondent’s premises and that he had some car parts stored there that he wanted to retrieve. However, in his oral evidence Mr Rainey gave a different account for why he had removed his personal belongings during his period of annual leave. Mr Rainey’s oral evidence is that he had removed the car parts from the premises because “Ms Pemberton’s son” was employed to clean up the spare parts area and had suggested he remove his car parts. Mr Rainey said he agreed to remove the parts because he didn’t want to lose any. I am not at all persuaded by Mr Rainey’s evidence on this issue. Although Mr Rainey had the benefit of the Respondent’s materials and witness statements prior to filing his evidence, the version of events given by Mr Rainey during examination in chief appeared for the first time in oral evidence and was not put in his witness statement. Ms Pemberton’s son did not give evidence in these proceedings and the respondent was not afforded an opportunity to respond to the new evidence of Mr Rainey. Further, it also became evident during the hearing that Mr Rainey had been removing his car parts from the Respondent’s premises because whilst on annual leave he had already made arrangements to take his vehicle to a different workshop.[6] Mr Reilly was unaware that Mr Rainey had made those arrangements which is evidence that remained undisturbed throughout the hearing. I have therefore formed the view that Mr Rainey’s oral evidence on this issue is a reconstruction of his recollection of the events to suit his case. I am not persuaded that Mr Rainey was removing his car parts from the Respondent’s premises because he was requested to do so by Ms Pemberton’s son.
As there were no witnesses present during the meeting on 8 April 2024 it is also necessary to consider the events that followed. Both Ms Campisi and Ms Langmair gave evidence about the discussions they’d had with Mr Rainey during his notice period about his alleged redundancy. I found Ms Langmair and Ms Campisi to be reliable witnesses who gave a convincing account of the events that occurred during Mr Rainey’s notice period. I found the evidence of Ms Campisi particularly persuasive. Ms Campisi’s evidence is that during Mr Reilly’s absence Mr Rainey approached her and made inquiries about his annual leave accruals and asked what he would be paid for a redundancy. Ms Campisi provided Mr Rainey with the details of his annual leave accruals however she advised Mr Rainey that as he had resigned, he would not receive any redundancy pay and that he would need to speak to Mr Reilly about it. Ms Campisi did not inform Mr Reilly about Mr Rainey’s inquiry. Mr Rainey denies having any conversation with Ms Campisi about a redundancy during his notice period. Instead, he says that he looked up his entitlements on the “Fair Work site”.[7] According to Mr Rainey he didn’t discuss his redundancy entitlements with either Mr Reilly or Ms Campisi prior to his employment ending on 10 May 2024. Mr Rainey’s reasons for not raising the issue of his redundancy entitlements with Ms Campisi prior to his employment ending was because he “didn’t actually like her 100 percent”[8]. On this issue I prefer the evidence of Ms Campisi. However regardless, it is not in contention that although Mr Rainey alleges that he was being made redundant at no stage during his notice period or prior to his employment coming to an end did he make any other inquiries about his entitlements. I find this conduct to be at odds with the proposition put by Mr Rainey that he had been made redundant.
According to Ms Langmair she became aware that Mr Rainey was leaving when his wife attended the workplace during his notice period. Mr Rainey’s wife told her that he was leaving, shortly after Mr Rainey also confirmed that he would be leaving and there was no mention at that time that he had been made redundant. Ms Langmair then recalled her discussion with Mr Rainey and it wasn’t until the following day, whilst no one else was present that Mr Rainey approached Ms Langmair and told her he had been made redundant. Mr Rainey says that during the discussion he told Ms Langmair he was struggling to come to terms with Mr Reilly’s decision. There were no further discussions between Ms Langmair and Mr Rainey that he had been made redundant until he contacted her on 10 July 2024 asking her to provide witness evidence that he had been made redundant. Ms Langmair’s evidence that she informed Mr Rainey that the only knowledge she had about the alleged redundancy was from the brief conversation she had with him during his notice period and that she would be telling the truth about her knowledge of events if she needed to provide information in any proceedings also went unchallenged. Ms Langmair informed Mr Reilly of the conversation and it is not in contention that she never heard from Mr Rainey again. Ms Langmair’s recollection of the conversations had with Mr Rainey and his wife when she was informed that he was “leaving” is persuasive and leans towards a finding that was unlikely Mr Rainey was made redundant.
A farewell barbeque lunch was held for Mr Rainey on 9 April 2024. Both Ms Langmair and Ms Campisi attended Mr Rainey’s farewell lunch and there was no mention by either Mr Reilly or Mr Rainey that he had been made redundant. Ms Campisi and Ms Langmair gave evidence that they do not recall Mr Reilly ever having a farewell lunch for someone who had been made redundant. I find this to be of little relevance because it seems that it was the first time Mr Rainey had been given a farewell celebration although he had resigned on previous occasions. However, I do find it remarkable that although he had plenty of opportunity, Mr Rainey made no attempt to make any inquiries about the alleged redundancy during his notice period or alternatively after being informed by Ms Campisi, the person responsible for payroll that she had been advised that he had resigned he made no attempt to rectify the situation by either approaching Mr Reilly or Ms Campisi. I find this to be at odds with the proposition that he had been made redundant.
In his witness statement Mr Rainey says he was told that there was a reduction of estimation work from Suncorp and a focus on work from Youi, meaning only one estimator would be required to handle the quotes, which Mr Reilly denies. According to Mr Reilly there was no reduction in estimation work and he disagreed that only one estimator was required to handle the quotes. Mr Rainey’s evidence remained that during the conversation that resulted in the termination of his employment, he was told by Mr Reilly that there was a downturn of work and that was the grounds for his redundancy. However, Mr Rainey in his oral evidence made a number of concessions including that he had no knowledge of what work was coming in or what work had been performed in the three months prior to the 8 April 2024 meeting. Mr Rainey also stated that he had no knowledge of any downturn in the work from either Youi or Suncorp. When asked about the performance measures of the business Mr Rainey said:
“Only that I know that Victor and Warren wanted to chase more Youi work and get away from the Suncorp work. Not to get-I mean, you would be stupid to get rid of it completely, but the Youi work was a lot easier and the owners and the work was a lot easier as well”.[9]
There was no supporting evidence provided by either party outlining the volume of estimation work being undertaken by the Respondent. However, there is also no evidence before me that at any stage during the meeting or during his notice period Mr Rainey sought any further information about the reasons for the alleged redundancy and at no stage either prior to or after his employment ended did he question or challenge Mr Reilly on this matter. For the reasons that will become apparent, I find Mr Rainey’s conduct to be inconsistent with his experience and knowledge of redundancies.
I am also not persuaded by Mr Rainey’s evidence that he didn’t know if it was illegal to discuss a redundancy. On this issue and for the following reasons I prefer the evidence of Mr Reilly. The evidence before me is that both Mr Rainey with Mr Reilly had previously held redundancy meetings with a number of employees during the Covid period. Mr Reilly’s evidence that Mr Rainey “understood 100% how redundancy works”[10] went unchallenged. I am not persuaded that Mr Reilly said words to the effect that it was illegal to discuss a redundancy. Ms Campisi’s evidence was that due to the past events, Mr Reilly fully understood the difference between a resignation and a redundancy. Although Ms Campisi’s evidence on this matter was objected to on the basis of relevance, I have determined that it should be considered as it was her experience, and it is relevant to my consideration. Ms Campisi’s evidence was that Mr Reilly had dealt with redundancies over the years, and it was her experience that he knew the difference between a redundancy and resignation, and it is not something he would be either confused or mistaken by. Therefore, I find it an unlikely scenario that Mr Reilly would say that it was illegal to discuss a redundancy and that any such statement would go unchallenged by Mr Rainey.
It is not in contention that during the meeting on 8 April 2024, Mr Reilly asked Mr Rainey if he wanted to finish up that day or whether he wanted to keep working the notice period. During Mr Rainey’s notice period Mr Reilly became ill and had to undergo surgery, he was unable to attend the work site for a period of time. Mr Rainey elected to continue to work during the notice period. Mr Rainey worked an extra week with his employment coming to an end on 10 May 2024. In his witness Mr Rainey says that he had been told that he had to work an extra week, stating that he was later informed that his redundancy would take effect on 10 May 2024 rather than the previously advised date of 3 May 2024 due to Mr Reilly being ill. According to Mr Rainey, he was informed he was required to work an additional week and he obliged because he wanted to help out. However, in his oral evidence Mr Rainey stated “I offered to work an extra week because Victor was going into Knox hospital”.[11] His oral evidence is consistent with Ms Campisi’s recollection being that on 24 April 2024 she was in Mr Reilly’s office discussing the days agenda and his pending surgery when Mr Rainey entered and after some discussion, he offered to extend his notice period by one week to accommodate Mr Reilly’s absence and Mr Reilly accepted the offer. Ms Campisi again recorded the events in the Lightning payroll system. I again prefer the evidence of Ms Campisi. I find Mr Rainey’s oral evidence was more likely to be what had occurred. I also find that his offer to extend his notice period to be at odds with the proposition that he had been made redundant. I have also formed the view that in his witness statement Mr Rainey had reconstructed his recollection of the events to suit his narrative that he had been made redundant.
Conclusion
In conclusion, taking into consideration my findings on the each of the matters set out above I am not persuaded that during the 8 April 2024 meeting Mr Reilly informed Mr Rainey that he was being made redundant. I am not persuaded that Mr Reilly said words to the effect that it was illegal for him to discuss with Mr Rainey that he was making him redundant. I have formed the view that Mr Rainey commenced removing his personal belongings from the Respondent’s premises because he had decided he did not want to continue in his employment upon his return from his annual leave period. Further, Mr Rainey has not provided any convincing evidence as to why if he believed he had been made redundant, he made no further inquiries about the alleged redundancy of either Ms Campisi or Mr Reilly until he rang Mr Reilly in an alleged intoxicated state on 16 May 2024. I had the benefit of observing Mr Rainey give evidence and I find it unconvincing that Mr Rainey would take no further action or not make any further inquiries for the five weeks he remained employed if he had been told that he was being made redundant and that it was illegal for Mr Reilly to discuss it with him.
Taking into consideration my above findings, I find on the balance of probabilities that Mr Rainey had made arrangements during his period of annual leave pertaining to his car components and his vehicle because he had the intention of and subsequently did resign when he returned to work on 8 April 2024. Therefore, Mr Rainey was not made redundant.
Mr Rainey submits should I find that he resigned from his employment, then the resignation occurred in the heat of the moment and the immediate acceptance by the respondent would mean that he was constructively dismissed.
I have found on the balance of probabilities that Mr Rainey’s resignation was pre-planned during his period of leave. Even if Mr Rainey had not intended on resigning on 8 April 2024 but some time shortly after, I would not be persuaded that his resignation was done in the heat of the moment. If Mr Rainey had not intended on resigning, then he made no attempt to communicate that during the four weeks’ notice he had provided to the Respondent. During the notice period Mr Rainey made no attempt to rescind the resignation instead he offered to continue to work an extra week of notice whilst Mr Reilly was incapacitated. There was a significant amount of time that passed between the events of 8 April 2024 and Mr Rainey’s final day of employment being 10 May 2024. It is my conclusion that the resignation was not done in heat of the moment instead Mr Rainey gave prior consideration and simply no longer wanted to perform the work.
It follows that Mr Rainey was not dismissed. Mr Rainey has not been dismissed within the meaning of section 385 of the Act.
The application is dismissed.
COMMISSIONER
Appearances:
D. Fawcett, for the Applicant
R.Martin, for the Respondent
Hearing details:
17 October 2024
Melbourne
[1] Transcript PN429.
[2] Khayam v Navitas English Pty Ltd t/a Navitas English [2017] FWCFB 5162 (Hatcher VP, Colman DP, Saunders C, 8 December 2017) at para. 75; see also Mohazab v Dick Smith Electronics Pty Ltd (No 2) [1995] IRCA 645 (29 November 1995), [(1995) 62 IR 200].
[3] Ngo v Link Printing Pty Ltd Print R7005 (AIRCFB, McIntyre VP, Marsh SDP, Harrison C, 7 July 1999) at para. 12, [(1999) 94 IR 375]; citing Kwik-Fit (GB) Ltd v Lineham [1991] UKEAT 250_91_2410 (24 October 1991), [[1992] ICR 183 at p. 191]
[4] Bupa Aged Care Australia Pty Ltd v Shahin Tavassoli [2017] FWCFB 3941.
[5] Transcript PN406.
[6] Transcript PN132.
[7] Transcript PN527.
[8] Transcript PN533.
[9] Transcript PN498.
[10] Transcript PN234.
[11] Transcript PN515.
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