Ronald Ball v Discount Tyre and Auto Service Centre

[2016] FWC 2734

[2016] FWC 2734

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Ronald Ball
v
Discount Tyre and Auto Service Centre
(U2016/3553)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 2 MAY 2016

Application for relief from unfair dismissal.

[1] Mr Ronald Ball was employed by Di$count Tyre and Auto Services Pty Ltd from 22 October 2014 until 22 December 2015. He alleges he was unfairly dismissed. Di$count Tyre alleged that Mr Ball was not dismissed and he had abandoned his employment.

[2] It is not disputed that Di$count Tyres is a small business. Mr Ball was employed as a motor mechanic and he was engaged to work six days per week. Mr Ball decided that he was no longer willing to work six days per week and told Mr Mike McCann on 22 December 2015 that he was no longer willing to work six days per week. Mr McCann told him that if he was not willing to work six days per week he was no longer needed as he needed someone to work 6 days per week. Mr Ball then said to Mr McCann words to the effect of, ‘you are willing to not have me here at all for one day a week’ and Mr McCann said ‘yes’.

[3] Mrs McCann who was not present when the conversation took place said the Mr McCann said “If you can’t work Saturday I will have to find someone to do the job.” Mr McCann did not attend the hearing and did not give evidence.

[4] After the conversation took place Mr Ball left the workplace and only returned to collect his tools.

[5] Mrs McCann said that had Mr Ball remained at work discussions could have occurred with her and Mr McCann about Mr Ball’s working hours. A number of options could have been explored. She submitted that Mr McCann did not terminate Mr Ball’s employment.

[6] The Fair Work Act 2009 provides that a person has been dismissed if the person’s employment with his or her employer has been terminated on the employer’s initiative.

[7] The concept of termination at the initiative of the employer has been considered in the context of constructive dismissal under the predecessor acts as was discussed by the Full Bench in Kylie Bruce v Fingal Glen Pty Ltd (in liq) 1:

“[13] The test of constructive dismissal in the context of the unlawful termination provisions of the Industrial Relations Act 1998 was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (No 2) 2  (Mohazab) and subsequently elucidated by Justice Moore in Rheinberger v Huxley Marketing Pty Ltd3 (Rheinberger). The commonly quoted statement of principle in Mohazab is that:

"In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship". 4

[14] It is important that this passage be read in the context of the judgment as a whole. 5 It is clear that the requirements set out by the Full Court in the passage quoted are necessary, but not sufficient, to establish that employer action constitutes constructive dismissal.6

[15] These principles of constructive dismissal have been applied to the unfair dismissal provisions of the Workplace Relations Act 1996 by Full Benches of the Australian Industrial Relations Commission in Pawel v Advanced Precast Pty Ltd  7(Pawel)and ABB Engineering Construction Pty Ltd v Doumit8 19(ABB Engineering), and we accept the Applicant's submission that those decisions are relevant to any consideration of s.386(1)(b) of the Act.

[16] In Pawel the Full Bench said that:

"[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee..." 

[17] In ABB Engineering, the Full Bench said that:

"Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary."  9

[18] The four authorities cited above were summarised by a Full Bench of the AIRC in O'Meara v Stanley Works Pty Ltd  10(O'Meara) as follows:

"[23] In our view the full statement of reasons in Mohazab which we have set out together with the further explanation by Moore J in Rheinberger and the decisions of Full Benches of this Commission in Pawel and ABB Engineering require that there... be some action on the part of the employer which is either intended to bring the employment to an end or has the probable result of bringing the employment relationship to an end. It is not simply a question of whether "the act of the employer [resulted] directly or consequentially in the termination of the employment." Decisions which adopt the shorter formulation of the reasons for decision should be treated with some caution as they may not give full weight to the decision in Mohazab. In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign."

[8] Mr Ball said that Mr McCann terminated his employment. I do not accept that submission. Even if it was Mr McCann’s intention to terminate Mr Ball’s employment if he would not work six days per week, there is nothing in what was said to Mr Ball that indicated that Mr McCann was summarily terminating Mr Ball’s employment. Mr McCann did not tell Mr Ball to leave work that day nor did he give him notice of termination. I am satisfied however, that Mr Ball left his employment because he misunderstood what Mr McCann said.

[9] I accept that Mr McCann told Mr Ball that if he would not work six days per week he would be replaced. Mr Ball had accepted employment on the basis that he was to work six days per week. He was not entitled to unilaterally change his working hours. They could only be changed by agreement. His unwillingness to comply with this term of his contract would have provided Di$count Tyres with a reason to bring the contract to an end. However before that could occur, Mr Ball left his employment and did not return. I am satisfied that Mr McCann did not terminate Mr Ball’s employment.

[10] I have considered whether Mr Ball’s employment was terminated at the initiative of the employer in the terms discussed above. Those discussions occurred in the context of an employee resigning his or her employment but the reasoning is applicable when an employee is said to have abandoned his or her employment and the employee relies on the employer’s conduct to justify his or her action. I am not satisfied that Mr McCann’s conduct gave Mr Ball no choice but to leave his employment. He could have accepted Mr McCann’s position and have agreed to continue to work six days per week. Alternatively he could have sought to have further discussion when he returned from leave.

[11] I do not consider Mr McCann in refusing to accede to Mr Ball’s request to change his hours, if it was in fact a request, was conduct that either was of such a nature that abandoning his employment was the probable result or that he had no effective or real choice but to leave work that day.

[12] I therefore find that Mr Ball’s employment was not dismissed because the termination did not did not occur at the initiative of the employer. Therefore Mr Ball’s application for an unfair dismissal remedy is dismissed.

DEPUTY PRESIDENT

Appearances:

Mr Ronald Ball representing himself.

Mrs Carmela McCann representing Di$count Tyre and Auto Services Pty Ltd.

Hearing details:

2016.

Melbourne;

May 2.

 1   [2013] FWCFB 5279.

 2 (1995) 62 IR 200.

 3 (1996) 67 IR 154.

 4 (1995) 62 IR 200 at 205-6.

 5   O'Meara v Stanley Works Pty Ltd, AIRC Print PR973462 (11 August 2006) at [23].

 6   Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160; Pawel v Advanced Precast Pty Ltd, AIRC Print S5904 (12 May 2000) at [13].

 7   AIRC Print S5904 (12 May 2000).

 8   AIRC Print N6999 (9 December 1996).

 9   AIRC Print N6999 (9 December 1996). The print does not contain page or paragraph numbers.

 10   AIRC Print PR973462 (11 August 2006).

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