Roy Kilgour v Toll Transport Pty Ltd T/A Toll Intermodal

[2016] FWC 4514

[2016] FWC 4514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Roy Kilgour
v
Toll Transport Pty Ltd T/A Toll Intermodal
(U2016/5835)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 21 JULY 2016

Application for relief from unfair dismissal – applicant resigned – jurisdictional objection upheld – application dismissed.

[1] Mr Roy Kilgour (the applicant) has applied under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy against his former employer, Toll Transport Pty Ltd T/A Toll Intermodal (Toll).

The hearing

[2] The matter was heard on 6 July 2016. At the hearing, the applicant was represented by Mr McArdle of McArdle Legal. Toll was represented by Ms Mifsud.

[3] The hearing was a jurisdictional hearing only. The issue to be determined was whether the applicant was forced to resign from his employment with Toll because of the conduct, or a course of conduct, engaged in by his employer.

[4] The applicant tendered:

● his own witness statement; 1 and

● the witness statement of his wife, Mrs Heather Kilgour. 2

Toll tendered:

● the witness statement of Mr Bruce Rowan, State Manager of Toll Intermodal; 3 and

● the witness statement of Mr Darren McDonald, NSW Operations Manager of Toll Intermodal. 4

The legislation

[5] Under s.385 of the Act, a person cannot be found to have been unfairly dismissed unless they have been dismissed. The meaning of the term ‘dismissed’ is dealt with in s.386 of the Act, which relevantly states:

‘(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.’

The evidence

[6] Based on the evidence, I am satisfied of the following facts.

[7] The applicant worked as an allocator for Toll. He had worked for Toll since September 1986.

[8] On 15 March 2016 there was a meeting between the applicant, Mr McDonald and Michael McNamara, Fleet Manager, to discuss certain events that had taken place on 8 March 2016. On that day, an incident had occurred at B&D Roller Doors involving a driver, Din Seferovic.

[9] During the meeting, Mr McDonald asked the applicant to give his version of events regarding the incident.

[10] The applicant explained that he had received a text message and photos from Mr Seferovic and he had responded to that text message with ‘whatever’.

[11] Mr McDonald told the applicant that this was not an acceptable response or acceptable behaviour as Mr Seferovic’s supervisor. The applicant responded that he had already left for the day and that he was only an allocator, not a supervisor. Mr McDonald again told the applicant that this was not an acceptable response or acceptable behaviour. He warned the applicant that he would be disciplined for his poor attitude and behaviour.

[12] The applicant then offered his resignation with words along the lines of:

‘So what do you want me to do? Resign?’

[13] Mr McDonald did not respond. 5

[14] The applicant then added:

‘Do you want me to resign effective in four weeks at the end of my holidays or do you want me to come back and put in my resignation and give you four weeks’ notice?’

[15] Mr McDonald then rang Mr Rowan and told him that the applicant had decided to resign and wanted to know what the notice period should be. Mr Rowan advised Mr McDonald that Toll would pay out the applicant’s full notice period and that he could leave straight away if he wished.

[16] Mr McDonald then told the applicant that his resignation would be accepted immediately. The applicant wrote out his resignation, walked out of the office, said good-bye to his colleagues, packed up his belongings and left the premises.

[17] The applicant had told one of Toll’s human resources officers some weeks before this incident that he was planning to retire in June 2016.

[18] The applicant was unhappy with his job because he disagreed with the direction in which Mr McDonald was taking the business. He felt under increasing pressure. He said during his oral evidence that he was constantly worrying about his work,

‘..and the only way out that I could see for me was to resign and retire.

…

So you were very unhappy with the way work was? ---it was just building to the point where I ---

Yes? --- just wasn’t coping?

Yes. Yes? --- And I could see he wasn’t about to change.

…

It was a result of this that I was thinking of retiring, this pressure.’ 6

Consideration

[19] Based upon the evidence given by the applicant, I accept that he may have genuinely believed that he was left with no alternative but to resign. However, the test in s.386 must be applied objectively. The question is not whether the applicant thought he had no choice but to resign as a result of the conduct of the employer, but whether this was objectively the case.

[20] It is clear that the applicant was very unhappy with what he saw as the increased pressure on him as a result of the way work was being organised. This would have been exacerbated by the way in which he was being called to account for his attitude in response to the incident on 8 March 2016.

[21] There is, however, no objective evidence that Toll was planning to dismiss the applicant, as opposed to disciplining him for his poor attitude (through, for example, a formal warning). Nor was there any objective evidence that increased work pressure left him with no option but to leave his employment. Having regard to all the circumstances, I am satisfied that the applicant chose to resign. The fact that Toll appears to have been happy to accept his resignation does not mean that they forced him to resign.

Conclusion

[22] I am satisfied that the applicant was not forced to resign by conduct engaged in by his employer.

[23] The applicant was not dismissed within the meaning of s.386. His application for an unfair dismissal remedy is dismissed.

SENIOR DEPUTY PRESIDENT

Appearances:

C McArdle, solicitor, for Roy Kilgour.

R Mifsud for Toll Transport Pty Ltd T/A Toll Intermodal.

Hearing details:

Sydney.

2016.

July 6.

 1   Exhibit K1.

 2   Exhibit K2.

 3   Exhibit T1.

 4   Exhibit T2.

 5   PN67.

 6   PN41-PN51.

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