Rodney Bertram v NTP t/a NTP Forklifts Australia

[2013] FWC 6530

[2013] FWC 6530

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Bertram
v
NTP t/a NTP Forklifts Australia
(U2013/1274)

COMMISSIONER BLAIR MELBOURNE, 5 SEPTEMBER 2013

Application for relief from unfair dismissal.

[1] This decision arises out of an application made under s.394 of the Fair Work Act 2009 (the Act) by Mr Rodney Bertram (the Applicant) against NTP trading as NTP Forklifts Australia (the Respondent).

[2] The matter was first dealt with by conciliators of the Fair Work Commission (the Commission) in conciliation on 16 May 2013; however, the matter was unable to be resolved. The matter then proceeded to arbitration and was heard by the Commission on 8 August 2013.

[3] At the arbitration hearing the Applicant was represented by his agent, Mr R Wilson and the Respondent was represented by an employee, Mr B Parks.

[4] In the original application (form F2) the Applicant stated that he commenced employment on 4 January 2010 and states that he was notified of his dismissal on 8 April 2013, with the dismissal taking effect on 18 April 2013

[5] The Commission notes that the date the Applicant was notified of the dismissal was, in fact, a resignation on the part of the Applicant.

[6] The Respondent has raised jurisdictional objections on the basis that the Applicant resigned voluntarily.

[7] The Respondent refers to s.386 of the Act, which states 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.

[8] The Respondent’s argument relies on s.386(1)(b) of the Act.

[9] It is the Respondent’s argument that they did not engage in any conduct that would have forced or encouraged the resignation of the Applicant in this matter.

[10] Submissions were provided by parties along with witness statements.

[11] The Applicant contends that on Thursday 4 April 2013 he was requested to attend at the Respondent’s office in Dandenong, travelling from Sunshine. The Applicant states that on arrival at the office he was advised that a complaint had been made by a customer, which was Australia Post, about general waste in a rag bin.

[12] The Applicant states that he was then advised that, due to the complaint, he would have a role change from on-site field service technician at Australia Post to a travelling on road field service technician.

[13] The Applicant states that he had been employed at the Australia Post site as a technician for the past three years.

[14] The Applicant states that, as a result of this meeting and the distress caused by the decision to change his job role he resigned, providing the Respondent with two weeks’ notice.

[15] The Applicant asserts that at no time was he offered the opportunity to respond to the alleged complaint, nor was he provided with an opportunity to seek an advocate.

[16] The Applicant asserts that on Friday 5 April 2013, following a sleepless and anxious night, he attended his doctor and was advised to stay home.

[17] The Applicant then states that first thing on Monday 8 April 2013, following the weekend and given a more settled emotional state, he submitted a letter to the Respondent advising them of his decision to withdraw this resignation.

[18] The Applicant states that the Respondent advised, approximately one hour later, that the withdrawal of his resignation was not accepted and he was to finish on Thursday 18 April 2013 as per his resignation advice.

[19] The Applicant states that on Tuesday 9 April 2013 he advised the Respondent of his disappointment with their decision to cease his employment and refuted their suggestion that the change in his job role was just a “slap on the wrist”.

[20] The Applicant ceased employment on Monday 15 April 2013 but was paid until Thursday 18 April 2013.

[21] As previously stated, the Applicant alleges that he was not afforded the opportunity for representation or an opportunity to respond to the claims and allegations made against him and the imposed penalty of a role change was significant and created stress.

[22] Four points raised by the Applicant in his submissions are as follows:

“Firstly, in Paragraph 4 of their response NTP claim that it was not a disciplinary meeting, and also claim to have offered Rodney a witness. If it was not meant to be a disciplinary meeting why did they believe he needed a witness?

Secondly, why did NTP change Mr Bertram’s job role it if wasn’t a disciplinary action?

Thirdly, why was Mr Bertram not advised of the meeting being performance related at the initial meeting in Sunshine so that he had an opportunity to consider the issue prior to attending the meeting in Dandenong, and potentially engage in a support person,

Fourthly, is the issue around “opportunity to respond” ... Mr Bertram was asked to attend the meeting, advised of the allegations, and advised of the sentence - “removal from the Sunshine site” ... all at the same meeting without having any opportunity to respond to discuss the issues, or have an advocate to assist him through this process. NTP had already pre-determined their actions before they even discussed the allegations with Mr Bertram.”

[23] The Respondent submits that it will defend its argument that the Applicant resigned of his own accord. Their argument states that the key point is that the Applicant, in a moment of considered thought, took the time to write a resignation despite being encouraged to think about it on more than one occasion and by more than one person over an extended period of time.

[24] The Respondent asserts that neither Ms Brenda Foster nor Mr Ryan Carroll, both of whom provided witness statements and gave evidence, accepted the resignation of the Applicant.

[25] The Respondent asserts that the Applicant was required to enter into another office and discuss with Mr Barry Parks the issue of resignation before it was accepted.

[26] The Respondent asserts that during this period the Applicant did not appear angry and was not abusive and it was, therefore, reasonable for the Respondent to expect was to follow through with his resignation.

[27] The Respondent states that after the resignation was accepted the Applicant was asked to clear his belongings from his company vehicle into another vehicle. They state that it is not unreasonable at the completion of this task for them to assume that had the decision been made in the heat of the moment the moving of his personal belongings into an empty vehicle could provide clarity. They further assert that it is not unreasonable, after the Applicant had driven home and spent a sleepless night, for him to contact the Respondent to advise that he may wish to change his decision. They further assert that it is not unreasonable for the Respondent to assume that after no contact from the Applicant for almost 24 hours that he was content with his decision. They further assert that it is not unreasonable for the Respondent to make arrangements within its Field Services Department to cater for the loss of the Applicant.

[28] The Respondent states that Mr Parks and the Applicant had involvement at previous employment at TMHA and that during this time the Applicant submitted a resignation to Mr Parks. At that time the Applicant was asked to reconsider his decision but he was adamant that his decision was final and, due to that company’s particular policy at the time, he was finished up immediately and driven home by Mr Parks. The Respondent asserts that it is not unreasonable for Mr Parks to presume, after the Applicant had been asked to reconsider this decision, that he would not be convinced otherwise.

[29] The Respondent finally asserts that the Applicant took the time to write a resignation, he had the opportunity to reconsider this decision before it was accepted on multiple occasions over an extended period. He had the remainder of the afternoon and Friday to contact any one of his supervisors or managers to inform them he might change his mind. The Respondent states that the Applicant did not attend work on Friday; however, the Applicant’s sister reported him unwell at approximately 9.30am. The Respondent contends that this is a reasonable amount of time for him to reconsider this “heat of the moment” decision and organise a meeting to discuss his new found clarity.

[30] The Applicant gave evidence on his own behalf and Ms Foster and Mr Carroll and Mr Parks gave evidence on behalf of the Respondent.

[31] The Applicant’s resignation dated 4 April 2013 states as follows:

“To whom it may concern,

I, Rodney Bertram employee No. 263 of NTP Forklifts hereby give written notice of 2 weeks resignation as of 4/4/2013 as stated in NTP Forklifts Employee handbook.”

[32] The Respondent’s acceptance of that resignation also dated 4 April 2013 states as follows:

“To Rod,

Your resignation from your position as a Field Service Technician has been accepted, effective on April 18, 2013 (2 weeks’ notice) as requested. Due to the nature of your work you will continue to have access to a company supplied vehicle, whilst you work out your time the Dandenong Workshop.

During this time you will be required to work your standard hours; you duties during this time will be determined by our workshop requirements and outlined by our Workshop Supervisor Tom Shaul.

If you have any questions during this time please do not hesitate to ask.

[33] At the bottom of the letter accepting the Applicant’s resignation is a signature, which the Commission assumes to be the Applicant’s, acknowledging the Applicant’s receipt of that letter.

[34] The following are a chain of events that lead to the resignation of the Applicant:

[35] On Wednesday 3 April 2013, the Respondent received an email from Australia Post representative, Adrian Price, highlighting the need to pick up environmental waste from one of its major sites in Sunshine.

[36] On the morning of Thursday 4 April 2013, at approximately 10.00am, Mr Barry Parks, Victorian Operations Manager for the Respondent, attended the Australia Post site to view the amount of waste on site. Mr Parks took a number of photographs of the reported waste (which are attached to the Respondent’s submissions).

[37] It is asserted that, whilst on site, a quick discussion was had with the Applicant in relation to the state of the site and with his supervisors, Ms Brenda Foster and Mr Ryan Carroll. It was then decided to bring the Applicant into the Victorian head office to have a discussion about the contents of the email and the expectations of the Respondent to the Applicant.

[38] The Applicant arrived at the office at approximately 12.30pm on Thursday 4 April 2013 when discussions occurred between the Applicant, Ms Foster and Mr Carroll.

[39] The Applicant states that, at this point, he was not offered the opportunity to have a witness.

[40] Both Ms Foster and Mr Carroll in their statements and under oath state that as per their company policy any time an individual is involved in a discussion with two or more senior staff they are offered a witness. In this instance the Applicant declined to have a witness. Both Ms Foster and Mr Carroll state that they advised the Applicant that they were going to remove him from the site until they had completed an investigation and determined the best way forward.

[41] Again, both Ms Foster and Mr Carroll state that when they asked the Applicant whether he had anything to add the Applicant shrugged his shoulders and resigned.

[42] It is asserted by both Ms Foster and Mr Carroll that they both encouraged the Applicant to consider his decision and not rush and not to be silly. Ms Foster asserts that she stated to the Applicant that he should take the weekend before doing anything stupid.

[43] It is accepted that Mr Parks, on being advised of the verbal resignation of the Applicant that he was not interested unless such a resignation was in writing. Mr Carroll asserts that he recommenced his discussions with the Applicant after discussions with Mr Parks and advised the Applicant that the resignation had to be in writing. A discussion occurred regarding a notice period and the parties settled on two weeks as per the employee handbook.

[44] Mr Carroll then states that after a further five or so minutes the Applicant asked for a pen and paper and wrote out his resignation.

[45] The Commission found the evidence provided by Mr Carroll and Ms Foster to be quite credible. They were consistent in their response to questioning and very clear about the events that occurred on 4 April 2013 and also very firm about the Respondent’s policies, particularly in relation to the opportunities for employees to have witnesses if they are involved in discussions with two or more senior staff.

[46] There was an exchange between the Commission and the Applicant between PN266 and PN334 of transcript where the Commission was trying to ascertain what the issues were or what conduct occurred that compelled the Applicant to tender his resignation. During that exchange the Applicant acknowledged, at PN278, that he said I’ll have a bit of paper and pen”. He denies that Ms Foster said “don’t be silly”.

[47] The Applicant does acknowledge that his job description refers to him as a Field Service Technician and that his job description does not provide for permanent assignment to Australia Post.

[48] The Applicant also acknowledges that there was no reduction in pay. There was not a removal of a vehicle and that the Applicant was still entitled to use the equipment that went with the vehicle to perform his functions.

[49] The Applicant also acknowledges, commencing at PN294 of transcript, that there was never any mention by Ms Foster or Mr Carroll or any indication that his services were being terminated. He also acknowledges that there was never any indication that there wasn’t a position for him anymore with the Respondent. He also acknowledges that he was never counselled and that there was no warning intended to be given to him.

[50] There was a general discussion between the Commission and the Applicant in trying to identify what put the Applicant under the stress that warranted the resignation.

Conclusion

[51] Based on the outline of arguments and witness statements provided by the Applicant and the Respondent in this matter and the evidence provided in transcript, the Commission would make the following findings:

1. On Thursday 4 April 2013, when Mr Parks attended the Australia Post site in Sunshine and commenced to take photos, the Commission finds that, on the balance of probabilities, the Applicant knew what Mr Parks was there for, and that was the state of the site.

2. That, on the balance of probabilities, a discussion did occur between Mr Parks and the Applicant when the Applicant was advised that he was required to attend the office in Dandenong.

3. That, on the balance of probabilities and based on the evidence of the parties, the Applicant was advised that he could have a witness. The Commission does accept that there may have been some confusion on the part of the Applicant in that he may have understood that it was to be a witness appointed by the Respondent rather than somebody who he may elect to have, but he was offered a witness.

4. That the process of removing an employee from a site where a complaint has been raised on safety and environmental grounds is not an uncommon practice in industry. In the Commission’s view, that should not be construed as a disciplinary matter, particularly in this instance when the Applicant was advised, and accepted, that an inquiry would occur regarding the complaints raised by a major client.

5. The Commission finds it unusual that the Applicant would find being stood down on full pay stressful but not that stressful, (PN306 and 307 of transcript) as opposed to being removed from the Australia Post site and carrying on his functions as normal.

6. That, on the balance of probabilities and the evidence before the Commission and the Applicant’s own admissions, nothing was said to the Applicant that indicated that he was being counselled or warned or his job was in jeopardy or the Respondent was contemplating termination.

7. That the Applicant, on advising the Respondent that he wished to tender his resignation, the Commission is satisfied that there were several attempts by Ms Foster to have the Applicant reconsider submitting his resignation and that she encouraged him to think about submitting a resignation over the weekend.

8. That the Applicant was well aware that there was time for him to reconsider his position given that Mr Parks insisted that any resignation would need to be in writing.

9. That the Applicant took the time to consider the position put by Mr Parks and then asked for a piece of paper and a pen and, accordingly, submitted his resignation in writing.

10. That the Applicant, after submitting his resignation, then proceeded to transfer materials from one vehicle to another without showing any signs of being under stress, the asserted stress that led him to write a resignation letter.

10. That the Applicant could have reconsidered his position overnight, and had the opportunity on Friday 5 April 2013 to withdraw his resignation, but did not do so.

11. That the resignation submitted by the Applicant was a voluntary resignation and that the Applicant was not forced to resign because of any conduct or a course of conduct engaged in by the Respondent.

[52] In light of the above, the Commission determines that the Applicant does not fall within s.386(1)(b) of the Act.

[53] Accordingly, the application is dismissed.

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