Rowan Wallis v Hallsons T/A Megals
[2016] FWC 4598
•8 JULY 2016
| [2016] FWC 4598 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Rowan Wallis
v
Hallsons T/A Megals
(U2016/4145)
DEPUTY PRESIDENT CLANCY | MELBOURNE, 8 JULY 2016 |
Application for relief from unfair dismissal.
[1] Mr Rowan Wallis has applied under s.394 of the Fair Work Act 2009 (Cth)(FW Act) for compensation in relation to the termination of his employment as an electrician with Hallsons Pty Ltd t/a Megals (Megals) (Application). He says he was forced to resign his employment on or about 8 January 2016 and does not seek reinstatement.
[2] Megals objects to the Application and seeks the dismissal of the Application on the following grounds:
- Mr Wallis abandoned his employment, having failed to present for work from 18 December 2015;
- There was no termination at the initiative of Megals because the resignation was voluntary.
[3] In the alternative, Megals submits there was a valid reason for the termination because Mr Wallis performed private work using tools and equipment of Megals in breach of company policy.
Protection from unfair dismissal
[4] An order for reinstatement or compensation may only be issued where I am satisfied Mr Wallis was protected from unfair dismissal at the time of the dismissal.
[5] Section 382 of the FW Act sets out the circumstances that must exist for Mr Wallis to be protected from unfair dismissal:
“382 When a person is protected from unfair dismissal
A person is protected from unfair dismissal at a time if, at that time:
(a) the person is an employee who has completed a period of employment with his or her employer of at least the minimum employment period; and
(b) one or more of the following apply:
(i) a modern award covers the person;
(ii) an enterprise agreement applies to the person in relation to the employment;
(iii) the sum of the person’s annual rate of earnings, and such other amounts (if any) worked out in relation to the person in accordance with the regulations, is less than the high income threshold.”
[6] There is no dispute, and I am satisfied, Mr Wallis has completed the minimum employment period and was covered by the Electrical, Electronic and Communications Contracting Award 2010. Consequently, I am satisfied Mr Wallis was protected from unfair dismissal.
[7] Section 396 of the FW Act requires me to decide four specified matters before the merits of the application may be considered.
Whether the application was made within the period required in subsection 394(2)-s.396(a)
[8] In his Form F2-Unfair Dismissal Application form, Mr Wallis says his employment was terminated on 8 January 2016. His unfair dismissal application was received by the Commission on 29 January 2016. On the basis of this information, Mr Wallis made his application within the required 21 day period in s.394(2) of the FW Act.
Whether the person was protected from unfair dismissal – s.396(b)
[9] As outlined in paragraph [6] above, I am satisfied Mr Wallis was protected from unfair dismissal. This is not in dispute.
Whether the dismissal was consistent with the Small Business Fair Dismissal Code – s.396(c)
[10] Megals says it was a small business employer within the meaning of s.23 of the FW Act at the relevant times. This is disputed by Mr Wallis. For the reasons I will outline below, it is not necessary for me to make a finding in relation to the Small Business Fair Dismissal Code.
Whether the dismissal was a case of genuine redundancy – s.396(d)
[11] It is not disputed and I find that this is not a case of genuine redundancy.
Was the dismissal unfair?
[12] A dismissal is unfair if I am satisfied, on the evidence before me, that all of the circumstances set out at s.385 of the FW Act existed. Section 385 provides the following:
“385 What is an unfair dismissal
A person has been unfairly dismissed if the FWC is satisfied that:
(a) the person has been dismissed; and
(b) the dismissal was harsh, unjust or unreasonable; and
(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and
(d) the dismissal was not a case of genuine redundancy.”
Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.
[13] No issue was raised in relation to s.385(d) of the FW Act and I reiterate my finding at paragraph [11] above. As indicated in paragraph [10], for the reasons I will outline below, it is not necessary for me to make a finding in relation to the Small Business Fair Dismissal Code (s.385(c)).
[14] As to the matters raised by s.385(a) of the FW Act, a person has been unfairly dismissed if the termination of their employment comes within the definition of “dismissed” for the purposes of Part 3–2 of the FW Act. Section 386 of the FW Act provides:
“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.
…”
[15] As outlined above, Mr Wallis says he was dismissed from his employment as an electrician with Megals because he was forced to resign on or about 8 January 2016 because of conduct or a course of conduct engaged in by Megals (s.386(b) of the FW Act).
[16] I have to be satisfied that Mr Wallis was dismissed by Megals. It is only if I am satisfied Mr Wallis was dismissed by Megals, that I will be required to address s.385(b) of the FW Act, the question of whether the dismissal was harsh unjust or unreasonable.
Agreed facts
[17] At the commencement of the hearing, I gave the parties a written summary from the material they had filed which appeared to me to be uncontroversial. I invited them to confer in relation to the summary and advise whether they agreed with its contents. Having conferred, the parties advised there were some minor amendments they would like to make. I have adopted the amendments they put forward and now outline the agreed facts in paragraphs [18] – [60] that follow.
[18] Having earlier completed an apprenticeship through Apprenticeship Group Australia, Mr Wallis commenced employment as an electrician with Megals in May 2009.
[19] There is a signed employment agreement dated 1 July 2010 between Mr Wallis and Megals (the Employment Agreement). 1
[20] The Modern Award that applies to Mr Wallis’ employment was the Electrical, Electronic and Communications Contracting Award 2010 [MA000025] (the Award). 2
[21] Under the Employment Agreement, Mr Wallis was classified as a Licenced “A” Class Electrician.
[22] While Megals says the applicable classification in the Award for Mr Wallis was the Electrical worker grade 5, Mr Wallis says he was an Electrical worker grade 7.
[23] As of December 2015, Mr Wallis was paid:
- $1185.98 gross for 38 ordinary hours per week;
- overtime rates of time and a half for the first two hours and double time thereafter;
- a Travel Time Allowance of $5.00 for each day he presented for work;
- a Megals Allowance of $50 for each day he presented for work;
- Annual leave loading of 17.5%.
[24] In addition, Mr Wallis was permitted to take a Megals vehicle to and from his home and the Megals premises.
[25] The hourly rate of pay under the Employment Agreement was inclusive of the following Award Allowances: Industry Allowances, Electrician’s Licence Allowance, Availability Allowance and Tool Allowance.
[26] As at the time the Employment Agreement was entered into on 1 July 2010, the hourly rate of pay was $27.00 per hour. As at December 2015, it was $31.21.
[27] Clauses 16.2 and 16.3 of the Award set out current classifications and minimum wages for employees and all-purpose rates of pay as follows:
16.2 The classifications and minimum wages for an employee, other than an apprentice, are set out in the following table:
Classification level | Minimum weekly wage rate | Minimum hourly wage rate |
Electrical worker grade 1 | 666.40 | 17.54 |
Electrical worker grade 2 | 690.10 | 18.16 |
Electrical worker grade 3 | 714.40 | 18.80 |
Electrical worker grade 4 | 738.40 | 19.43 |
Electrical worker grade 5 | 764.90 | 20.13 |
Electrical worker grade 6 | 788.80 | 20.76 |
Electrical worker grade 7 | 834.60 | 21.96 |
Electrical worker grade 8 | 876.90 | 23.08 |
Electrical worker grade 9 | 894.80 | 23.55 |
Electrical worker grade 10 | 966.90 | 25.44 |
16.3 Addition of other all-purpose allowances
(a) The all-purpose rate to be paid to an employee, other than an apprentice, will be the sum of the minimum wage rate in the table in clause 16.2, the industry allowance in clause 17.2(a), and, where applicable, the tool allowance in clause 17.2(b), the electrician’s licence allowance in clause 17.2(c), the leading hand allowance in clause 17.2(d), the nominee allowance in clause 17.2(e), the electrical distribution line maintenance and tree clearing allowance in clause 17.2(f) and the rate for ordering materials in clause 17.2(g).
(b) The weekly all-purpose rate of pay is payable for all purposes of the award and will be included as appropriate when calculating payments for overtime, all forms of paid leave, annual leave loading, public holidays and pro rata payments on termination.
(c) The all-purpose hourly wage rate means the all-purpose weekly wage rate divided by 38.
[28] Clause 17.2(a) of the Award provides that the current industry allowance is 3.7% of the standard weekly rate per week, Clause 17.2(b) of the Award provides that the current tool allowance is $18.31 per week and Clause 17.2(c) of the Award provides that the current Electrician’s Licence allowance is 3.6% of the weekly standard rate per week.
[29] The Employment Agreement stated the Megals Allowance ‘is a performance based allowance at Megals discretion.’ The Employment Agreement also stated ‘Annual Leave is provided for in the National Employment Standards.’
[30] Clause 28.2(b) the Award states in relation to annual leave:
‘Instead of the base rate of pay specified in the NES, an employee under this award, before going on annual leave, must be paid the wages they would have received in respect of the ordinary hours the employee would have worked had the employee not been on leave during the relevant period, exclusive of payments in respect of overtime, special rates, travel and fares or any other payment which might have been payable to the employee as a reimbursement for expenses incurred.’
[31] Clause 17.3(a) of the Award outlines the Award entitlement to a Meal Allowance as follows:
“(i) An employee required to work overtime for two or more hours without being notified on the previous day or earlier that the employee will be required to work must either be supplied with a meal by the employer or be paid $14.55 for the first meal and for each subsequent meal. Such payment need not be made to employees living in the same locality as their employment who can reasonably return home for meals.
(ii) Unless the employer advises an employee on the previous day or earlier that the amount of overtime to be worked will necessitate the partaking of a second or subsequent meal (as the case may be) the employer must provide such second and/or subsequent meals or make payment instead thereof as prescribed.
(iii) If an employee pursuant to notice has provided a meal or meals and is not required to work overtime or is required to work less than the amount advised the employee must be paid for meals which the employee has provided but which are surplus.
(iv) This allowance will be adjusted in accordance with clause 17.7.”
[32] An incident occurred at the premises of a customer of Megals in Traralgon South on 17 December 2015. Mr Wallis telephoned Mr Hall on his way back to the premises of Megals and advised him that he had done a ‘burn out’ on the customer’s driveway that was one foot in length.
[33] Mr Wallis then attended Megals’ business premises. Mr Hall was talking on the phone to the customer at the time. Mr Hall showed Mr Wallis the photos sent from the customer. Mr Wallis disputed the photos. Mr Hall told Mr Wallis they would discuss the matter the next day so nobody got too heated.
[34] Mr Hall intended to send Mr Wallis an email with two photo images attached on 17 December 2015. 3 Although it was sent to four email addresses, none of them was the email address of Mr Wallis. Mr Wallis says he did not see this email.
[35] The last day Mr Wallis performed worked for Megals was on 17 December 2015. While Mr Wallis presented for work at the premises of Megals on Friday 18 December 2015 and was assigned a number of jobs, he left the Megals premises in a company vehicle and did not attend any of the jobs assigned to him.
[36] Mr Wallis did not attend for work on Monday 21 December 2015 and did not contact Megals. He did not answer his work phone and could not be contacted.
[37] An email sent at 9.00am on Tuesday 22 December 2015 by Mr Hall to Mr Wallis stated:
“Hi Rowan. Haven’t heard anything from you since you left Friday morning without saying anything. Please advise what your intentions are as I see it you have left your employment, please advise one way or the other.
Regards
Bruce J. Hall” 4
[38] Mr Hall alleges that Mr Wallis telephoned him on Wednesday 23 December 2015 or Thursday 24 December 2015 to discuss what had happened. Mr Hall also alleges that in that conversation he suggested to Mr Wallis that he come into work so they could see what could be done to help Mr Wallis through any private or work issues. Mr Hall also alleges that arrangements were made for the Megals company vehicle to be collected from the residence of Mr Wallis.
[39] Mr Wallis says that he had a telephone discussion with Mr Hall on or about 23 December 2015.
[40] Mr Hall alleges that he subsequently tried to call Mr Wallis to see what he was doing and when he was coming to see him but received no response.
[41] Mr Wallis sent to Mr Hall an email on 5 January 2016. 5 In this email, Mr Wallis raised a number of disputes about the wages he had been paid. The areas he raised were:
- the rate of pay he was entitled to for overtime, annual leave and personal leave; and
- The failure of Mr Hall to pay him the Industry Allowance, Tool Allowance and Electrician’s Licence Allowance.
[42] Mr Hall responded to this email on 6 January 2016, sending an email at 11.42 am stating:
“Hi Rowan,
In reply to your letter below I would welcome an investigation by the Fair Work Commission and or your solicitor if that’s what you intend to do.
Please find attached copy of your letter of employment signed by yourself and witnessed by Lynette Lawson.
You have obviously decided to abandon your employment without notice and on return of the items of equipment etc missing from your allocated vehicle you will be paid your final termination pay.
I’m disappointed you didn’t come in and discuss any issues that you thought you may have had with your remuneration as at no time did you make me aware.
Regards
Bruce J. Hall”
[43] On 8 January 2016, Mr Wallis sent an email to Megals at 12.45pm stating:
“I have returned the steps that were missing. To my knowledge there were no other parts missing out of the vehicle so if you could make the termination payment that would be much appreciated.
If you think there is more items missing please let me know what they were as [sic] so I can find out where they are.”
[44] A reply to this email was sent to Mr Wallis by Ms Heather Butler of Megals at 2.33pm on 8 January 2016 stating:
“Rowan
I am replying to your email in Bruce’s absence.
Your termination settlement has been held up, pending the result of the enquiry by the Fair Work Commission which you indicated was to be instituted.
Bruce has also advised me that you still have some items of Megals property in your possession:
Tool purchased for your use during your employment by Megals
Order book
Gate Key
Bottle of MAP Gas
Could you also advise when and where the ladder was returned? No-one here has seen it.”
[45] Mr Wallis replied to this email at 3.25pm on 8 January 2016, stating:
“All the items listed in your email have been received by Dave Clifford today.
Please refer to clause 22.3 E.E.C. Award
On termination of an employee wages due must be payed [sic] on the day of termination
There is no clause stating unless there is an inquiry [sic] underway by the fair work commission”
[46] Ms Butler replied to this email at 3.27pm on 8 January 2016, stating:
“David informs me that only the key and Gas bottle were returned – still awaiting the tools and order book”
[47] Mr Wallis replied to this email at 3.40pm on 8 January 2016, stating:
“The order book was left in my van behind the seat. There are no tools in my possession that bruce has paid for. If you think that I have stolen any of these so called items maybe you should report it to the police. And again there is no clause that says a termination payment need not be paid if there is a police enquiry pending.”
[48] Ms Butler replied to this email at 3.45pm on 8 January 2016, stating:
“I will discuss this with Bruce on Monday”
[49] At 8.22am on Monday 11 January 2016, Ms Butler sent an email to Mr Wallis, stating:
“Hi Rowan
I have been informed that the order book was not found in the van when returned – we MUST have this order book back.
Bruce believes that you still have a/c tools which he paid for, for your use while employed by Megals – we are not suggesting that you have stolen anything.
On receipt of the order book and any tools belonging to Megals I will issue your pay – do I assume that you wish to terminate your employment and this will be your termination pay?”
[50] Mr Wallis sent an email in reply at 11.39am on 11 January 2016, stating:
“The missing items have been returned to niel in the shop front this morning. Could you please include in the payment the last day I worked the 17/12. The hours were 9 on daves brother in laws house.”
[51] Ms Butler replied to this email at 11.48am on 11 January 2016, stating:
“In order for us to calculate the pay for this period please provide a time sheet with a list of job numbers.”
[52] Ms Butler then sent a further email to Mr Wallis at 12.35pm on 11 January 2016, stating:
“Ok – I have spoken to Bruce and he has agreed to pay you the 8 hours for the 17th.
Do you just wish this to be paid, or are you terminating or abandoning your employment and wish to have a final pay prepared?
Please advise the situation re the Fair Work commission enquiry.”
[53] Mr Wallis sent an email in reply at 12.40pm on 11 January 2016, stating:
“If the payment is made today there will not be an inquiry by the fair work commission.”
[54] Ms Butler replied to this email at 1.43pm on 11 January 2016, stating:
“I cannot finalise the pay for the 17th until Bruce gets information from the person for whom you did a cash job in Megals’ time with Megals’ materials.
In order to fully finalise your pay, I need to know whether you are terminating or abandoning your employment with Megals.”
[55] There was another email sent by Mr Wallis at 1.17pm on 11 January 2016, stating:
“I wish to be payed [sic] for this day and all annual leave owing”
[56] At 1.51pm on 11 January 2016, Ms Butler replied, in an email stating:
“I can’t pay out the annual leave until you inform us whether you are terminating or abandoning your employment.”
[57] Ms Butler then sent a further email to Mr Wallis at 2.09pm, stating:
“Rowan
The situation is I need to know whether you are abandoning your employment or resigning, in order to complete your pay. Holiday pay and holiday pay on termination are different items, treated differently by the ATO.
I am getting tired of this back and forth, please just let me know so that we can finalise the matter.”
[58] Mr Wallis then sent an email to Megals at 2.31pm on 11 January 2016, stating:
“You have got to be joking.
I have not done a cash job in megals time with megals materials. This is a very serious accusation you have made. I should not have to specify wether [sic] I am resigning from my position or not to receive my annual leave pay. And pay for work I have done.
But yes I did do a few cash jobs but did not use megals materials and certainly not in megals time. Maybe I would not have had to do them if I had received some call outs from megals. Steve for one example had received approximately 10 call outs in two months leading up to Christmas whereas I had not received one. I thought call outs were meant to be shared between employees. And don’t say its cause I live out of town cause two of steves callouts were in sale.”
[59] A reply to this email was sent by Mr Hall at 3.32pm on 11 January 2016, stating:
“Hi Rowan
Heather is only doing her job, she needs to know if your holidays pay is to be included for termination as the tax is applied a different way otherwise holiday pay normally is at my discretion as you would now [sic] as would be negotiated.
Please advise so we can get you the money owed to you asap it is your decision to make but as you have not supplied any paperwork i.e. time sheet notice of resignation etc. we have no idea what you want to do.
Please advise I repeat myself.
As far as the labour and materials are concerned for the “Cashy” all you need to do is to prove to me that you didn’t use my vehicle during the job and show me where you purchased the materials and convince your cash customer he is wrong.
If this is not resolved today or early tomorrow I will be unavailable for at least 4-5 days.
As far as the afterhours jobs are concerned I’m quite happy to debate that with regards to your availability.”
[60] Mr Wallis replied to this email at 3.49pm on 11 January 2016, stating:
“As I see it I have been dismissed from my job. If you do not agree with this in terms of payment of money owing you may pay me as if I had resigned from my employment as to process the payment today.”
Evidence
[61] In addition to the agreed facts, Mr Hall gave evidence comprising two written statements filed prior to the hearing 6 and oral testimony while Mr Wallis gave evidence comprising a written statement filed prior to the hearing7 and oral testimony.
‘Burn Out’ Incident and Email of 17 December 2015
[62] On 17 December 2015, Mr Wallis attended a job in South Traralgon. Mr Wallis said he caused skid marks on the customer’s driveway when accelerating away from the customer’s dog so it would not run under the wheel of his van. He said Mr Jason Sandbrook was with him at the time of the ‘burn out’ but the customer was not home at the time.
[63] It is agreed that on the way back from the job, Mr Wallis telephoned Mr Hall. Mr Hall said Mr Wallis told him that he had done a ‘burn out’ on the customer’s driveway that was only one foot long. Mr Wallis said he had firstly called Mr Dave Clifford, the electrical supervisor for Megals, because Mr Clifford was the customer’s brother-in-law.
[64] Mr Hall said that after Mr Wallis spoke to him, he received a telephone call from the customer. When the customer raised the ‘burn out’, Mr Hall advised him that Mr Wallis had already admitted to it and had said it was only a foot long. At this, Mr Hall said, the customer swore and said that it had left a much bigger skid mark. The customer emailed Mr Hall photographs of the skid marks. 8
[65] When Mr Hall telephoned the customer in response, he said the customer told him he did not want Mr Wallis to return to his premises. While they talking, Mr Wallis walked into the Megals office. Mr Wallis said “No, no” and Mr Hall asked him how he (Mr Wallis) could defend the ‘burn out’. Mr Hall said Mr Wallis repeated his denial and became agitated, stating that the photos must have been of someone else’s burn out. Mr Wallis maintains that a skid mark of the magnitude in the photographs was not possible in the Megals vehicle he was driving. Mr Wallis said that they argued and that he was adamant that he did not lie. Mr Hall suggested that they talk about it the next day and Mr Wallis left for the day.
[66] Mr Hall intended to send an email to Mr Wallis with a copy of the customer’s photographs but says instead, he accidentally sent it to a Megals group email address of which Mr Wallis was not a member. Mr Hall sent the email at 5.55pm on 17 December 2015 (the 17 December email). It stated:
“Rowan,
As usual I try and defend my employees when the customer gets angry but to defend another lie, one foot long was what you told me, just made a complete DH out [of] me and David for that matter.
I don’t understand how you could do this and then try and tell me lies about it.
What are you going to do to reinstate the customers drive way in your time at your expense. He is absolutely, is absolutely ropable about it and I don’t blame him. Only a foot long. Lies are indefensible and make it just harder.
You do so much good work for me and then you do things like this, I just can’t understand how you could do this to the customer and inflict the mental pain on to me and the damage this does to our what was a good name. You mightn’t think it’s much of a deal but if someone did it to your new drive way I bet you would be very upset.” 9
[67] Mr Wallis says that he did not receive the 17 December email, but he was shown a copy by a colleague the following morning. 10
18 December 2015 – 5 January 2016
[68] There was no discussion about the incident when Mr Wallis presented for work on Friday 18 December 2015. When jobs for the day were allocated, Mr Hall stated that he did not want Mr Wallis to return to the South Traralgon job. He said Mr Wallis was given other jobs, left without saying anything and then did not end up attending to any of the jobs he was allocated. Mr Wallis said he was told about the jobs but had not been given the job cards before he left. He said that he left because he was upset and embarrassed about the 17 December email.
[69] Mr Wallis said that he had turned up to work that day to try and put things right but took no steps to do so because discovering the 17 December email upset him.
[70] Mr Hall said that Mr Wallis did not present for work on the following Monday, 21 December 2015 and nor was he contactable. He did not telephone Megals and nor did he answer his phone. As referred to in paragraph [37] above, Mr Hall sent the following email at 9.00am on Tuesday 22 December 2015:
“Hi Rowan. Haven’t heard anything from you since you left Friday morning without saying anything. Please advise what your intentions are as I see it you have left your employment, please advise one way or the other.
Regards
Bruce J. Hall”
[71] This email was not responded to. Mr Wallis said he was too upset to respond to it. Mr Wallis claimed during his oral testimony that a colleague, Mr Stewart Walter, had spoken with Mr Hall about why he was upset, although this had not been put to Mr Hall in written material or when he was giving his evidence.
[72] Mr Hall said he tried to contact Mr Wallis through Mr Wallis’ wife. Mr Hall said that he wanted to apologise for sending the 17 December email to other employees and he wanted Mr Wallis to return to work because when things were going well for him, he was a good worker. He said that on either 23 or 24 December 2015, he received a phone call from a telephone number he recognised as that of Mr Wallis’ wife. Mr Hall said the caller was in fact Mr Wallis. Mr Wallis, despite having earlier maintained that he had not called Mr Hall, 11 said later in his evidence that he could not remember and “I thought he rang me, but I could be wrong in that sense.”12
[73] Mr Hall said the telephone call covered the following:
“PN 226
You have keyed it into your phone?---It's clear it came up because I was trying to catch up. We were all worried about Rowan because he hadn't been at work for a few days. I kept trying to catch up with her and I thought, "Oh, great, she's rung me back." And it was – he said, "It's not Nicole, it's Rowan." I said, "Okay." I said, "Look", I said, "I don't know what you're up to, but", I said, "we'd like to pick up the van because you've still got the van." And he was sort of probably half apologetic and I said - - -
PN 227
So let's talk about some words. What words did he said he gives this half apology?---It was sort of like he was sorry and I said, "Don't let's talk over the phone. Come in and we'll talk about it." I said, "You can come in today if you like." And he said he didn't want to come in today, that day, and he said, "I'll be in tomorrow." I said, "That's great." He said, "I'll bring the van in." And I said, "Well", I said, "the boys are doing a job out that way." I said, "Do you mind if they pick the van up?" And he said, "No, no worries." So we picked the van up that day.”
[74] Mr Hall also said he wanted to see what could be worked out to help Mr Wallis and see him through any private or work issues he might have had. 13
[75] Mr Wallis said that the only thing discussed in that telephone call was the return of the Megals vehicle.
[76] Mr Hall said that Mr Wallis did not come in after that telephone conversation and did not present for work when the business re-opened on the next working day after Christmas. Both Mr Hall and Mr Wallis could not recall there being any communication after that phone call until the email from Mr Wallis dated 5 January 2016.
Underpayment Dispute
[77] The underpayment claims Mr Wallis made in his email dated 5 January 2016 were extensive and covered a range of items. His written submissions dated 29 March 2016 were also very prescriptive.
[78] Mr Wallis said that he had lodged an application with the Fair Work Ombudsman regarding underpayment and it was one of the reasons for the termination of his employment.
[79] Mr Wallis said that he had raised the Megals allowance not being paid for annual leave days at a tool box meeting at which Mr Hall became quite angry saying, "I don't have to pay anyone that works here above award wages. I pay you above award wages. If [you] don't like it then you can leave the employment." 14 Mr Wallis said everyone at Megals would agree with him but there was no evidence suggesting this. Mr Wallis gave differing versions as to how often he had raised this. At one point he said it was on one occasion15 and at another point, ‘quite a few times’.16 He also thinks he might have once raised a query about the travel time allowance being paid.
[80] Mr Hall said that Mr Wallis had never raised issues of underpayment with him and that he had never threatened Mr Wallis with dismissal for having raised them. When Mr Wallis outlined his various underpayment allegations in his email dated 5 January 2016, 17 Mr Hall stated in his reply email dated 6 January 2016, “I’m disappointed you didn’t come in and discuss any issues that you thought you may have had with your remuneration as at no time did you make me aware.”
Private work for Mr Hoskin
[81] As outlined in paragraph [54] above, Megals asserted in an email to Mr Wallis at 1.43pm on 11 January 2016 that Mr Wallis had done a cash job in Megals’ time with Megals’ materials.
[82] Mr Hall gave evidence that he received a telephone call from a Mr Rod Hoskin on 11 January 2016. He said Mr Hoskin complained that having given Mr Wallis $600 to install an air conditioner, Mr Wallis had not completed the job. Mr Hall said he told Mr Hoskin that Megals employees could not do private cash jobs after hours or use Megals vehicles and that in reply, Mr Hoskin said that Mr Wallis had used a Megals van and had equipment in it. Mr Hall estimated that Mr Wallis had used Megals material and labour to the value of $136.50 in performing this private job. Mr Hall said Megals employees had frequently been told at monthly tool box meetings that private work was forbidden and grounds for instant dismissal.
[83] In addition to denying he had done a cash job in Megals’ time with Megals’ materials in a reply email to Megals at 2.31pm on 11 January 2016, referred to in paragraph [58] above, Mr Wallis stated he had not performed cash work using Megals materials or tools, denied using a Megals vehicle and said that he did not see why he had to make enquiries of Mr Hall before he went and did the work for Mr Hoskin. He also challenged the assertion that he had been using a Megals van and equipment, stating that Mr Hoskin was not there when he had arrived to perform the work. Mr Wallis said that if Mr Hoskin knew he worked for Megals, it was “probably because I mentioned it to him.” 18
[84] Mr Wallis did not take issue with the proposition that doing private work with Megals tools and equipment was grounds for instant dismissal and suggested other Megals employees had done so and yet had remained employed. He also said there had been cash jobs previously performed by him and other Megals employees.
Was Mr Wallis dismissed?
[85] I have to be satisfied that Mr Wallis’ employment was either terminated on the initiative of Megals or that he was forced to resign because of conduct or a course of conduct engaged in by Megals in order for him to be able to proceed with the Application.
[86] Throughout the conduct of the proceeding, Mr Wallis alleged different dates of, and reasons for, his termination:
- In his Form F2- Unfair Dismissal Application form, Mr Wallis noted 8 January 2016 as the date of termination due to constructive dismissal, indicating it was based on Fair Work Ombudsman advice that the termination date would be the day he received his termination payment. Mr Wallis also asserted he had ‘terminated his job’ in response to conduct engaged by Megals which gave him no reasonable choice but to resign, including the 17 December email, the allegations of ‘theft’ and the assertion of Mr Hall in the email of 22 December 2015 stating “as I see it you have left your employment…”
- In his written submissions dated 7 March 2016 and 29 March 2016, Mr Wallis alleged constructive dismissal based on the 17 December email, the theft allegation and the underpayments.
- In his Statement dated 29 March 2016, Mr Wallis stated he left his employment because of Megals’ conduct towards him. 19
- In his oral testimony, Mr Wallis asserted that his employment came to an end on a range of dates that included 18 December 2015, 5 January 2016, 8 January 2016, 11 January 2016.
[87] It was somewhat difficult to get clarity as to what Mr Wallis was alleging, as his answers to my questions in the following passage of transcript demonstrates:
“PN662
So that I am clear, what is the conduct you say of Megals gave – no, I will take it back. Did you abandon your employment?---No.
PN663
Did you resign?---No.
PN664
So your position is you were terminated?---Yes.
PN665
On what basis were you terminated?---Due to my employer's conduct towards me or course of conduct towards me in relation to sending an email to co-workers stating I was a liar on three occasions where I was not lying, the allegations of theft where I had not stolen, and the underpayment of wages issue which my employer.
PN666
So when did you regard that dismissal as having taken place?---I guess it would have been around the 5th or so of January.
PN667
The 5th or so?---I'm trying to think. Yes, it was always – it was a thought process going along of, you know, it was not something where you just click your fingers and instantly there is a decision in this respect, I think, in that you have to treat your employment as at an end and you have to decide whether the working relationship has been that badly damaged that you cannot proceed working at the company which it is not a click your fingers instant sort of thing, it's something that you have got to determine yourself.
PN668
But you understand that to bring a claim for termination of your employment, the employment has to have been terminated as the initiative of the employer?---M'mm.
PN669
Now, your position is then that these actions of your employer brought the employment to an end as at a particular time?---Does it have to be at the particular – as at a particular time?
PN670
Yes?---At that particular time, I guess, I would have probably said when I knew about the email that was sent to work colleagues.
PN671
On 18 December?---See, that – yes. I guess the moment I knew for sure that I was definitely terminated from my employment was the allegation of theft. Because if you wanted to pinpoint the exact time, when I was accused of stealing from the company I knew from that point on.
PN672
In your Form F2, your unfair dismissal application, you have said that you were terminated on 8 January, constructive dismissal, and that is the day your dismissal took effect?---I was told when I rang up the Fair Work Commission helpline, they told me the date of termination would be on the day I received my termination payment because the day of your termination you shall receive your termination payment. That was what the Fair Work Commission stated to me.
PN673
But I don't think you received your termination pay on the 8th?---I'm not sure when I received it, to be honest with you.
PN674
Then in your Form F2, you have said the reasons for the dismissal was: "An email my boss sent to co-workers stating that I was a liar on three occasions and emails from my employer stating I had stolen from the company." And then you have said in relation to Question 3.2: "Why was the dismissal unfair?" "I have terminated my job. I have terminated my job in response to conduct engaged by my employer which gave me no reasonable choice but to resign." So is it your position that you had to resign your employment because of the conduct of your employer?---Yes, it was. Seriously I could not have worked – continued working.
PN675
Just answer my question?---Yes.
PN676
Is your position that you resigned your employment in response to conduct of your employer?---Yes.
PN677
And that conduct of your employer you say was the email sent stating on three occasions you are a liar, that an email that you had stolen from the company, and this is in your Form F2, and "an email from my employer stating", as I said, you have left your employer?---Correct.
PN678
But you are also maintaining that because of the underpayments you were forced to resign?---It's more the other two, the underpayments. You could probably – they were a contributor.
PN679
The underpayments?---I guess.
PN680
The underpayments?---Yes, a contributor, but in terms of this hearing today you could probably say that it was the allegations of theft and the emails stating I was a liar.”
[88] Mr Wallis had concluded his evidence as follows:
“PN 736
But getting back to the issue here, is your position you resigned your employment in response to the conduct?---To terminate my employment in response to the conduct of my employment – due to the conduct of my employer.
PN737
You resigned in response to the conduct of your employer that you say gave you no reasonable choice but to resign or that it destroyed the relationship between you and him. So it was a resignation in response to that behaviour?---Yes, which is deemed to be a false termination.
PN738
A false termination, yes. So a resignation due to the behaviour, constructive dismissal?---Yes.”
[89] I accept Mr Wallis was upset and aggrieved at the 17 December email and that it was the reason why he left work on 18 December 2015 without attending to the jobs he had been allocated. However, he did not communicate this to Mr Hall and nor did he respond to phone calls or report to work on 21 or 22 December 2015. As referenced in paragraphs [37] and [70] above, Mr Hall sought Mr Wallis’ intentions in an email he sent to him on 22 December 2015 and his advice one way or the other. Mr Wallis could give no explanation as to why he did not respond to Mr Hall’s email dated 22 December 2015. 20
[90] As to the nature of the pre-Christmas telephone conversation between Mr Hall and Mr Wallis on either 23 or 24 December 2015, I prefer Mr Hall’s evidence. He was clear on the circumstances of the call and the matters discussed. In contrast, having at first insisted it was Mr Hall who called him, Mr Wallis later said he could not remember who initiated the call. Further, I am not persuaded by his evidence that all they discussed was the return of the Megals vehicle, given Mr Hall’s email on 22 December 2015 and desire to know what Mr Wallis’ intentions were and the support and understanding Mr Hall had previously extended Mr Wallis during the course of his employment.
[91] It is common ground that there was no contact between Mr Hall and Mr Wallis after that phone call until the email Mr Wallis sent to Mr Hall on 5 January 2016 outlining an extensive claim for underpayments. I am not persuaded such extensive claims had previously been put before Mr Hall, with the exception of a claim regarding the application of the Megals allowance. Mr Wallis’ only evidence on underpayment claims in answer to my questioning had been that he had previously raised the payment of the Megals allowance on annual leave days once and he thought he might also have raised a question about the travel allowance on another occasion. In this context, I consider it unsurprising that Mr Hall responded on 6 January 2016 by saying “I’m disappointed you didn’t come in and discuss any issues that you thought you may have had with your remuneration as at no time did you make me aware.”
[92] Mr Wallis did not raise the 17 December email in his email of 5 January 2016. His evidence was “I thought it wouldn’t have to be said. It was pretty self-explanatory that I would have been upset.” 21 Mr Wallis also said he did not raise Mr Hall’s email of 22 December 2015 in his 5 January 2016 email “because I had already treated it as being terminated by his conduct, so I shouldn’t have to reply” and expressed agreement that his employment was terminated on 18 December 2015.22 When it was put to him that he had not, to that point of time, asserted that Mr Hall had damaged the relationship, his answer was that he thought it would go without saying.23
[93] With Mr Wallis not having presented for work since 18 December 2015 and not having responded to an invitation to come in for a discussion, his extensive underpayment claim outlined in his email of 5 January 2016 prompted Mr Hall to respond in an email dated 6 January 2016 as follows:
“Hi Rowan,
In reply to your letter below I would welcome an investigation by the Fair Work Commission and or your solicitor if that’s what you intend to do.
Please find attached copy of your letter of employment signed by yourself and witnessed by Lynette Lawson.
You have obviously decided to abandon your employment without notice and on return of the items of equipment etc missing from your allocated vehicle you will be paid your final termination pay.
I’m disappointed you didn’t come in and discuss any issues that you thought you may have had with your remuneration as at no time did you make me aware.
Regards
Bruce J. Hall”
[94] When Mr Wallis replied on 8 January 2016, he stated:
“I have returned the steps that were missing. To my knowledge there were no other parts missing out of the vehicle so if you could make the termination payment that would be much appreciated.
If you think there is more items missing please let me know what they were as [sic] so I can find out where they are.”
[95] I note that when Mr Wallis sent his email dated 8 January 2016 asking for his termination payment to be made, he said he did not want his job back because he was still upset by the email of 17 December 2015. 24
[96] The primary position of Megals is that there was not a termination on the initiative of Megals because Mr Wallis abandoned his employment or in the alternative, he voluntarily resigned. For his part, Mr Wallis denies he abandoned his employment and maintains his was a case of constructive dismissal because he resigned because of conduct by Megals.
[97] As to the primary position of Megals, I am not persuaded that this case involved an abandonment of employment. The Employment Agreement did not contain a term that dealt with abandonment of employment. An abandonment of employment clause did not apply by virtue of the Award covering Mr Wallis either. This is a distinguishing feature of this case as far as a review of previous cases dealt with by the Commission is concerned. 25
[98] On one view, abandonment of employment is said to occur where the employee simply walks off the job, or fails to return from a period of authorised leave, in such a way that the employer is reasonably entitled to conclude that the employee no longer intends to be bound by their contract. 26 I am not satisfied that when Mr Hall sent the email dated 6 January 2016, it was reasonably open to Megals to conclude that Mr Wallis no longer intended to be bound by his contract.
[99] Mr Hall admitted there was no contact from 23 or 24 December 2015 until 5 January 2016. The email from Mr Wallis he received that day outlined a claim for underpayment and sought rectification of ‘mistakes made’. It did not contain a resignation or other wording that suggested that Mr Wallis no longer intended to be bound by his contract. In coming to this conclusion, I have also had regard to Mr Wallis’ evidence detailed in paragraph [92] above and that in sending his email in reply dated 8 January 2016 addressing the return of equipment and requesting his termination payment, he had agreed his employment had terminated, but not because of abandonment. 27
[100] Turning to the question of whether Mr Wallis was forced to leave his employment because of conduct or a course of conduct engaged in by Megals, it is useful firstly to set out the summary of the law relevant to determining whether a termination of employment was at the employer’s initiative that is contained in the Full Bench decision in O’Meara v Stanley Works:
“Termination at the initiative of the employer
[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:
“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel [1994] IRCA 2; (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:
‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’
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. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:
‘… a termination of employment at the instance [of] the employer rather than of the employee.’
And at p 5:
‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”
[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited (Rheinberger). His Honour said, after referring to extracts from Mohazab:
“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”
[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd (Pawel) a Full Bench said:
“[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. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”
[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit (ABB Engineering) it was said:
“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. 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.”
[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 to 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.” 28 (my emphasis) (references omitted)
[101] The analysis of the authorities in the passage above distils the concept of termination at the initiative of the employer into this:
- 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.
[102] Mr Wallis has variously relied upon the following conduct of Megals to assert that he was entitled to resign or treat his employment as terminated:
a) The 17 December email sent by Mr Hall;
b) Allegations of theft made by Megals on 11 January 2016; and (to a lesser extent)
c) Alleged underpayments by Megals during the course of his employment.
[103] I will deal firstly with the allegation of theft which relates to private work done for Mr Hoskin by Mr Wallis, which I have addressed at paragraphs [81] – [84] above. It is clear Mr Hall took this matter seriously. It is equally clear that Mr Wallis was aggrieved at the suggestion he had performed private cash work using a Megals vehicle and materials. However, when the matter was first raised at 1.43pm on 11 January 2016, Mr Wallis had already requested a termination payment and there had been eleven emails back and forth between him and Megals arranging for the finalisation of affairs between them, including the email at 12.40pm from Mr Wallis, stating:
“If the payment is made today there will not be an inquiry by the fair work commission.”
[104] In these circumstances, I find that Mr Wallis cannot rely upon what he describes as the allegations of theft by Megals to assert that he was forced to resign his employment. He had already made that decision. Having made this finding, it is not necessary to consider this aspect of the exchanges between Mr Wallis and Megals further and nor will I.
[105] Dealing next with the alleged underpayments, I have addressed the evidence in relation to this area of dispute at paragraphs [77]-[80]. As I stated at paragraph [91], I am not persuaded the extensive claims made by Mr Wallis in the email of 5 January 2016, had previously been put before Mr Hall. In his written submissions dated 7 March 2016, Mr Wallis relied on Hobbs v Achilleus Taxation Pty Limited ATF The Achilleus Taxation Trust; Achilleus Accounting Pty Limited ATF The Achilleus Accounting Trust, 29 a case in which it was found that the employment of an Applicant who had resigned his employment, having been paid less than half what he was owed over a four month period, was dismissed for the purposes of s.386 of the FW Act.
[106] Mr Wallis’ circumstances were not analogous. I am also satisfied having regard to the facts in paragraphs [22]–[30] that the wages and entitlements under the Employment Agreement exceeded the wages and entitlements under the Award to such an extent that the assertions of Mr Wallis as to underpayment are wholly lacking in substance. On wages alone, the Employment Agreement’s $1185.98 gross per week for ordinary hours at the time the employment relationship ended was $351.38 per week in excess of the Award rate for Mr Wallis’ claimed (higher) Electrical worker grade 7 classification. In addition, he had received a Megals Allowance of $50 for each day he presented for work which would well have exceeded the various allowances under the Award. For these reasons, I am unable to find that the quantum of the payments made by Megals to Mr Wallis during his employment can be regarded as a factor that forced him to resign from his employment and I have not taken them into account.
[107] The final issue to be considered is the 17 December email, which stated:
“Rowan,
As usual I try and defend my employees when the customer gets angry but to defend another lie, one foot long was what you told me, just made a complete DH out of me and David for that matter.
I don’t understand how you could do this and then try and tell me lies about it.
What are you going to do to reinstate the customers drive way in your time and your expense. He is absolutely, is absolutely ropable about it and I don’t blame him. Only a foot long. Lies are indefensible and make it just harder.
You do so much good work for me and then you do this to the customer and inflict the mental pain on to me and the damage this does to our what was a good name. You mightn’t think it’s much of a deal but if someone did it to your new drive way I bet you would be very upset.” 30
[108] I have detailed the evidence relating to the ‘Burn Out’ incident, its immediate aftermath, the 17 December email and the events that followed from 18 December 2015 until the email sent by Mr Wallis on 5 January 2016 at paragraphs [62]-[76] above. I have also detailed the various ways in which Mr Wallis has alleged he was dismissed for the purposes of s.386 of the FW Act at paragraphs [86] and [87] and I accept that Mr Wallis was upset and aggrieved at the 17 December email.
[109] I have had regard to the Full Bench decision in Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 T/A Commonwealth Financial Planning 31(Elgammal). The circumstances in Elgammal were that an employer had concerns about an employee’s punctuality. This was aggravated by the knowledge that his one and only other employee had been made redundant and would be ceasing work on the day of the incident in question. When the employee was then running late for work and, prior to arriving at work, was going to get a cup of coffee, the employer had responded with an “outburst” in the heat of the moment that was found at most to imply that if she continued to be late for her work either she should leave the respondent’s employ, or accept a reduction in pay. The words used were:
“He said: “Yes I am Marwa. If you can’t do your hours and be here when you are supposed to be, I will cut your pay next month to $3,800.00.”
I said: “Are you serious? I had to get my daughter to school so I can come to work.”
He said: “I don’t care what the excuse it. You can piss off like Maya. I need someone that can be in the office at 7:45am. If you can’t do these hours I will cut your pay to $3,800.00 or you can piss off.”” 32
[110] The employee resigned soon after this exchange and brought an application alleging that her employment had been terminated at the initiative of her employer and in the alternative, that she had been forced to resign because of conduct engaged in by the employer.
[111] At first instance, her application was dismissed. Before the Full Bench, the employee relied solely on the few words in the brief conversation and submitted that amounted to a repudiation by the employer of her employment contract. She submitted she elected to accept the repudiation and was entitled to assert that her employment had been terminated at the initiative of the employer and unfairly so.
[112] In refusing permission to appeal, the Full Bench stated:
“It is adequate for us to indicate that we accept that when considering whether an employer has repudiated the contract the test is not the employer’s actual intention, judged subjectively, but whether the conduct of the employer, judged objectively by reference to the effect on a reasonable person evinced an intention to no longer be bound by the contract.” 33
[113] It stated that in order to objectively assess whether there was a dismissal, context was important 34 and in this regard, outlined why permission to appeal was refused:
“The appellant does not acknowledge the fact her commencement time was 7.45am. On 14 May, by the time she had the conversation with Mr Nimmo she was already running thirty five minutes late, was not then in the office and was asking about getting a cup of coffee. She overlooks other contextual facts such as her good working relationship with Mr Nimmo. He had only recently chosen the appellant to be the employee who would stay on and another employee was made redundant. The conversation occurred on the day when the other employee was to be made redundant leaving the appellant as the only employee in the office. The conversation was very short and was brought to an end by the appellant not by Mr Nimmo. She said she would ring back but did not do so. She declined thereafter to take any call from Mr Nimmo. She should have attended at the office on 14 May but instead she returned home and sent the text message we have referred to in paragraph 10. The conversation could not have reasonably been understood by the appellant to be an indication the employer would no longer be bound by the terms of the employment contract. We agree with His Honour’s assessment that Mr Nimmo had made a flippant remark which, at most, indicated what he may do in the future should her timekeeping not improve.” 35
[114] I have been guided by the approach adopted by the Full Bench in Elgammal when assessing the facts of this case and the ‘burn out’ incident and its aftermath.
[115] It was not in dispute that Mr Wallis had done a burn out at the customer’s premises. The issue that arose was that his account of it being one foot long was vehemently disputed by the customer. This was particularly so when Mr Hall suggested this was the case, based on Mr Wallis’ version of events. The customer then vented his frustration with Mr Hall and sent through photographs. Mr Wallis maintained the photographs were wrong and he and Mr Hall argued before Mr Hall called a halt to the discussion and suggested they talk about it the next day.
[116] While it would appear that other Megals employees, Mr Clifford and Mr Sandbrook, knew about the burn out incident on the day, it was unfortunate that the 17 December email was sent to other employees and not Mr Wallis, as intended.
[117] Mr Wallis did not acknowledge that his action, even judged at its most favourable, was a source of embarrassment to Mr Hall and had resulted in Mr Hall having to placate an angry customer and re-arrange his workers in order that the customer’s job be completed. He had enjoyed a good working relationship with Mr Hall and Mr Hall regarded him as a good worker. However, Mr Wallis did not acknowledge that Mr Hall had, just a few months earlier, when Mr Wallis had asked for some time off to get himself sorted out due to some personal issues, told Mr Wallis he could have as much time off as he needed and that when he was okay, his job would be waiting for him.
[118] The 17 December email was, in my view, Mr Hall’s way of letting off steam. He was upset and felt let down. It indicates his belief that he tries to defend his employees in the face of customer complaints but that he felt exposed by what he had been told by Mr Wallis. The use of the word ‘lie’ undoubtedly jarred, but the customer’s photographs had suggested a fundamentally different result from the burn out to the version of Mr Wallis. I am not persuaded that the wording of the email could have reasonably been understood by Mr Wallis to be an indication that Megals intended to bring the employment to an end. The wording of the email in no way suggested that the employment relationship could not continue. Mr Hall wanted to know what Mr Wallis was going to do to fix the problem and he stated his belief that Mr Wallis did good work for him. The email was certainly a venting of frustration but I am not persuaded that it could be regarded as action either intended to bring the employment to an end or as having the probable result of bringing the employment relationship to an end.
[119] In the aftermath, Mr Wallis declined on several occasions to raise his grievance with Mr Hall. 36 He did not present for work and he did not answer his phone or return calls. In contrast, nothing in Mr Hall’s subsequent exchanges with Mr Wallis suggested that he intended to dwell on the burn out. Mr Hall invited Mr Wallis to indicate his intentions through his email dated 22 December 2015 and followed this up with an invitation that they meet, when they had a telephone conversation on 23 or 24 December 2015. I accept Mr Hall’s evidence that he had told Mr Wallis that he wanted to help him with whatever issues he was having and that he was expecting him to come in after their pre-Christmas phone call. A reasonable course of action for Mr Wallis would have been to participate in the discussion and dialogue Mr Hall was suggesting, particularly given their long history, good working relationship and his prior experience of Mr Hall’s accommodating nature.
[120] For these reasons, I am not satisfied that the 17 December email sent by Mr Hall, seen in its proper context, compelled Mr Wallis to resign from his employment with Megals or treat his employment as terminated.
Conclusion
[121] In these circumstances, I am unable to find that Mr Wallis was terminated at the initiative of Megals or that there was a resignation of employment constituting a dismissal within the meaning of s.386(1)(b) of the Act. It is therefore not necessary for me to address s.385(b) of the FW Act and determine the question of whether the dismissal was harsh, unjust or unreasonable.
[122] The application is dismissed and an order to this effect will be issued.
DEPUTY PRESIDENT
Appearances:
Mr R Wallis.
Ms G Jardine of Counsel for the Respondent.
Hearing details:
2016.
Morwell:
April 15
1 Exhibit R1 - Attachment A.
2 I note the rates that are contained in this decision are those that were applicable at the date of termination.
3 Exhibit R1 - Attachment B.
4 Ibid - Attachment C.
5 Ibid - Attachment D.
6 Exhibits R1 and R2.
7 Exhibit A1.
8 Exhibit R1 – see photographs at Attachment B.
9 Exhibit R1 – Attachment B.
10 Transcript PN 343.
11 Exhibit A1 and Transcript PN 106-108.
12 Transcript PN 697.
13 Exhibit R1 at [17].
14 Transcript PN 347.
15 Transcript PN 660.
16 Transcript PN 561.
17 Exhibit R1 – Attachment D.
18 Transcript PN 730.
19 Exhibit A1.
20 Transcript PN 544.
21 Transcript PN 519.
22 Transcript PN 538-539.
23 Transcript PN 581.
24 Transcript PN 722.
25 See J Searle v Moly Mines Limited [2008] AIRCFB 1088, Israel Mor Hiam v Jodack Pty Ltd T/A Snap Caulfield South[2016] FWC 2265, Susann Sharpe v MCG Group Pty Ltd[2010] FWA 2357.
26 Creighton B and Stewart A, Labour Law, Fourth Edition, The Federation Press, Sydney 2005 at p.429
27 Transcript PN 574 and PN 723.
28 PR 973462 AIRC 2006(11 August 2006).
29 [2012] FWA 2907.
30 Exhibit R1 – Attachment B.
31 [2011] FWAFB 4038.
32 See Elgammal v BlackRange Wealth Management Pty Ltd ACN 092 380 348 T/A Commonwealth Financial Planning[2010] FWA 7845 (Decision at first instance) at [10].
33 [2011] FWAFB 4038 at [13].
34 Ibid at [15].
35 Ibid at [16].
36 See [92] above.
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