Rodney Todkill v Fletchers International Exports Pty Ltd

[2015] FWC 2583

[2015] FWC 2583

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Rodney Todkill
v
Fletchers International Exports Pty Ltd
(U2014/15587)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 24 APRIL 2015

Application for relief from unfair dismissal.

[1] On 2 December 2014 Mr Rodney Todkill (the applicant) filed an application pursuant to s.394 of the Fair Work Act 2009 (FW Act) for an unfair dismissal remedy against his former employer, Fletchers International Exports Pty Ltd (the respondent).

[2] The matter was heard in Orange on 17 March 2015 and in Sydney on 7 April 2015. The applicant was represented by Mr M Madden and the respondent was represented by Mr D Houlihan.

[3] Section 394 of the FW Act provides that a person who has been dismissed may apply to the FWC for a remedy. Section 386 sets out the meaning of dismissed and relevantly provides:

‘(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.’

[4] It is not in dispute that the applicant resigned his employment with the respondent. However he contends that he was forced to do so because of his employer’s conduct. 1 Before considering whether the applicant is entitled to an unfair dismissal remedy, it is first necessary to deal with the question of whether the applicant was ‘dismissed’ as that term is defined in s.386.

The Evidence

[5] During the proceedings evidence was given by the following:

● Mr Rodney Todkill (the applicant)
● Mrs Debbie Todkill (the applicant’s wife)
● Mr Geoff Wallace (AMWU organiser)
● Mr Adam Isbester (Plant Manager); and
● Mr Andrew Watson (Human Resource Manager).

[6] There are some very significant differences between the evidence given by the applicant, Mr Wallace and the respondent’s witnesses. Where there is a conflict between his evidence and that of the other witnesses, I have relied on the evidence of Mr Wallace. He gave his evidence in a clear, forthright and internally consistent fashion. Moreover he has no particular interest in the outcome of the proceedings. He only gave evidence as a result of a order from the Commission. Both Mr Madden and Mr Houlihan acknowledged the strength of the evidence given by Mr Wallace, when compared to that of the other witnesses. 2 The following findings of fact are accordingly largely based on Mr Wallace’s evidence.

[7] On 13 November 2015 Mr Wallace received a phone call from the applicant regarding an incident at work. The applicant told Mr Wallace that he had been involved in an incident with another worker. He had had a ‘brain snap’ and had threatened to run him over with a forklift. 3

[8] Mr Wallace then called Mr Isbester and had a conversation relating to the forklift incident during which Mr Isbester said ‘I’ve had enough of Rod, I can’t have this kind of behaviour. I have a duty of care to do an investigation.’ 4

[9] Following the incident the applicant received a written counselling. 5 Mr Wallace told him that he was pretty lucky that he had not been sacked. He added:

‘Threatening someone is pretty serious. You need to stay away from the bloke, just keep away from him.’ 6

[10] On Monday 17 November 2015 Mr Isbester called Mr Wallace to inform him that there had been another incident between the applicant and the other employee. He told him:

‘There is an allegation that Rod went up to the bloke in the shopping centre and put one on his chin. This is going to cause a problem, I can’t have him on site. He’s been stood down until you get here tomorrow’. 7

[11] During his oral evidence, Mr Wallace said that Mr Isbester did not give any indication at this stage of any further action that would be taken against the applicant. 8

[12] Mr Wallace then rang the applicant. He told him he would speak to Mr Isbester ‘but I’m not holding too much hope for your future at Fletchers.’ 9 In his oral evidence, Mr Wallace indicated that it was the applicant’s previous history that ‘was going to be his downfall.’10 This history had been relayed to him by the applicant himself. It included an incident where the applicant had shot a water pistol at Mr Isbester, as well as numerous other issues, including absenteeism.11

[13] A meeting on Tuesday 18 November 2015 was held at the respondent’s premises between Mr Isbester, Mr Wallace and Mr Cardile (AMWU delegate) regarding the applicant. Mr Isbester told Mr Wallace that he could not have the applicant onsite. He said:

‘The bloke is a fucking nutter. He has previous history with the other bloke. I can’t have him on site - we have people working with knives, what’s next. His own workmates don’t want him onsite because he’s a loose cannon, he argues with everyone. You need to go and sort your problem out, Geoff. He’s got previous warnings, including for fighting and one for shooting a water pistol at me.’ 12

[14] Mr Wallace then spoke to the applicant and they had a conversation to the following effect:

‘Geoff: ‘Rod, it doesn’t look good. Adam has indicated to me that you’re not a cleanskin, you’ve got warnings. He’s worried that you’ll pick up a knife. He indicated to me that your workmates don’t want to work with you anymore, they see you as a loose cannon and an idiot with a bad temper.

There’s three options as I see it. Option A - you can go back in and see where it goes and maybe they keep you on. It might happen but I don’t think it’s likely. Option B - you go back in, and they summarily dismiss you. If that happens we’d seek advice from our legal people as to whether there’s an unfair dismissal there. I doubt it - I’d need to seek advice but I doubt that we’d run one. Option C - I can go and do a deal. Pick a box.’

Rod: ‘What do you think, Geoff?’

Geoff: ‘It isn’t my box to pick Rod.’

Rod: ‘Can I call my wife?’

Geoff: ‘Mate, take your time. It’s your call, not mine. Only you can make the decision, not me - you need to look in your heart and decide whether you’re right or wrong, not me.’ 13

[15] The applicant called his wife and at the end of their conversation asked Mr Wallace to speak to her. He relayed to her the three options he had given the applicant to consider.

‘I said to Mrs Todkill “as far as I can see, Rod’s got a box: A, B, or C” ... and indicated that if he took A or B, then I would seek advice and we would go from there. 14

[16] During his oral evidence Mr Wallace said that at this time he had not had any discussions with management about a deal. 15

[17] According to Mr Wallace, he said:

‘these fucking arseholes don’t want me anyway, I’ll do the deal. Colin, can you go and talk to the other bloke and get him to put it in writing that he isn’t going to pursue a charge against me? ...’ 16

[18] One issue was that the applicant had been with the respondent nearly 10 years. He would only get paid pro rata long service leave if he left his employment due to ‘medical reasons or personal/domestic reasons’. 17 If he was dismissed for serious misconduct he would not be entitled to pro rata long service leave. The applicant wanted the long service leave paid and told Mr Wallace:

‘Get as much as you can for me.’ 18

[19] A meeting was then held between the applicant, Mr Wallace, Mr Cardile, Mr Isbester and Mr Watson. At that meeting Mr Wallace said:

‘Rodney is happy to resign on the proviso that notice is paid in lieu, that he gets his pro-rata long service leave..., that all outstanding RDO hours are paid, and all moneys owed are to be paid, and that he would have an opportunity to say goodbye to his colleagues and empty his locker, and that if any future employer calls there will be a glowing reference saying that he resigned.’ 19

[20] Mr Watson then gave the applicant a resignation form. The applicant filled out the form which indicated that he was tendering his resignation due to ‘pressing domestic circumstances’. 20 He signed the form, had Mr Wallace witness it, and then handed it to Mr Watson.21

[21] During his oral evidence Mr Wallace said that Mr Isbester had never told him that he was going to sack the applicant. 22

Consideration

[22] The issue to be determined is whether the applicant was forced to resign because of conduct, or a course of conduct, engaged in by the respondent.

[23] There is no doubt that Mr Isbester was very unhappy with the applicant. He made that unhappiness clear to Mr Wallace. However he did not tell either the applicant or Mr Wallace that he was going to dismiss him if he did not resign.

[24] It was Mr Wallace who made the judgement that the applicant would probably be dismissed. He formed this view based on what Mr Isbester had told him, together with his own understanding of the applicant’s poor employment record (largely gleaned from what the applicant had himself told him) and of the recent altercations involving the applicant and one of his co-workers. Mr Wallace advised the applicant that he had a number of options, including to try and keep his job. He made clear that it was for the applicant to decide. However his advice was that the best course of action was, in effect, to negotiate the best severance package he could. That was the option that the applicant chose to take.

[25] The applicant could have tried to keep his job. He might indeed have been dismissed by the respondent - we will never know. I am sure that the respondent was happy to accept his resignation. The applicant took the advice of his union organiser and instructed him to negotiate on his behalf the best severance package he could. Mr Wallace’s advice may or may not have been correct. It does appear however to have been reasonable, in all the circumstances.

[26] What is clear however is that the applicant was not forced to resign by the respondent.

Conclusion

[27] The application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

M Madden, solicitor for the applicant

D Houlihan of First IR Consultancy Pty Ltd for the respondent

Hearing details:

2015

Orange

17 March

Sydney

7 April

 1   PN8, 7 April 2015

 2   Mr Madden, at PN33 and Mr Houlihan at PN179, 7 April 2015

 3   Exhibit T1, paragraph 4

 4   Ibid, paragraph 5

 5   Exhibit F3, attachment A

 6   Exhibit T1, paragraph 6

 7   Ibid, paragraph 7

 8   PN62

 9   Ibid, paragraph 8

 10   PN90

 11   PN91-95

 12   Ibid, paragraph 11

 13   Ibid, paragraph 13

 14   PN165, 17 March 2015

 15   PN172

 16  Exhibit T1, paragraph 16

 17   PN177

 18   PN184

 19   Ibid, paragraph 17

 20   Exhibit F3, Attachment C

 21   Exhibit F3, paragraph 16

 22   PN217-8

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