Sandeep Patel v Red Robot Industries Pty Ltd

[2016] FWC 7672

[2016] FWC 7672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Sandeep Patel
v
Red Robot Industries Pty Ltd
(U2016/9648)

SENIOR DEPUTY PRESIDENT DRAKE SYDNEY, 09 NOVEMBER 2016

Application for relief from unfair dismissal.

[1] This decision arises from an application pursuant to section 394 of the Fair Work Act 2009 (the Act), which was lodged at the Fair Work Commission on 21 July 2016.
[2] The effective date of termination of employment was not agreed by the parties.
[3] I listed this application on 6 October 2016 for hearing to determine the date of termination of employment and, if necessary, to determine an extension of time for lodgement of the application. Both parties were self-represented at the hearing.
[4] When Mr Patel gave evidence he dealt with whether or not there was a termination of his employment at the initiative of the employer. As a result I put the following proposition to the parties:

“THE SENIOR DEPUTY PRESIDENT:  All right.  Thank you.  I have listed this matter for an extension of time application, but in fact all of the evidence I've heard goes to the question of whether or not there was a dismissal or not.  Do you understand that, Mr Patel?  So the case I've actually been hearing, because that is the case you've been conducting, is whether or not there was a dismissal or not.

MR PATEL:  Yes.

THE SENIOR DEPUTY PRESIDENT:  It seems to me that that is the matter I should determine rather than whether there - and naturally arising out of that question as to whether there was or was not a dismissal, I will also be hearing the evidence of what the date of termination was and therefore whether there should be an extension of time.  Are the parties happy for me to deal with this application on the basis of whether or not there was a dismissal? 1”

[5] Mr Patel agreed that I should determine the three issues if necessary and I agreed that the parties should have further time to provide submissions.

The date of cessation of employment

[6] At the hearing Mr Patel provided notes of an interview he had had with the respondent on 29 April 2016 2,a Staff Coaching and Assessment Form of 31 May 20163and a Staff Coaching and Assessment Form of 21 June 20164.

Mr Patel’s evidence was that he “… put the resignation to the Red Robot Industries… on 21 June 2016.” 5

I asked Mr Patel to tell me why he thought his employment had been terminated when he had provided a letter of resignation. I asked him to tell me his story. From his evidence I understood that the respondent had had concerns as to whether Mr Patel was doing his job as a manager to its satisfaction and had given him two options. He could either resign with a good reference, or accept a new role with a lesser salary. Mr Patel was happy to take up the new role on a lesser salary.

On 21 June 2016, by a letter back dated to 15 June 2016, Mr Patel resigned his employment. That resignation was to be effective on 29 June 2016.

Mr Patel’s evidence was that he resigned so that he could take his accrued annual leave and go on holidays. He said that he had relied on the respondent’s advice that his resignation was necessary if he wished to access his annual leave at the higher rate that he was then being paid, rather than the lesser rate that he would have been entitled to after he accepted the new role.

“THE WITNESS:  And then at the time of (indistinct) so I told that Red Robot, can I write down that I can start my new role on this date, like, you know - and so Red Robot told me no, you don't need to write that one, because I won't accept that resignation letter that if you write down that my new role will start on this one as a casual or part-time, because that was the understanding that I'm going to start the new role.  And I was on the leave up to 17 July 2016, and I was supposed to start my new role on 19 July 2016, but before that, on 15 July, I got the message from Duncan saying that you are having a good holiday; unfortunately we still have no orders so no work next week, and that was the first time I received the message that, you know, you don't need to come.  And then I replied that I can come the next week and join next week, because I thought there is not enough work in Red Robot.  And again he replied that I will let you know, at this stage we still have no orders and little work.  So at that time I realised that it has been dismissal, my case, means I am dismissed unfairly, and then in a couple of days I put my application to the Fair Work Commission on 21 July, I think.

Thank you.  I'm going to mark your resignation letter exhibit Respondent 1, because it's your document, Mr Amos.” 6

[7] Following his resignation Mr Patel sought advice from the Fair Work Ombudsman, an officer of which informed him that he should not have been obliged to resign to access his accrued leave at the rate of pay applicable during the period when he had accrued it. He has therefore concluded and submitted to me that he had been forced to resign and that his resignation was a constructive dismissal.
[8] Mr Patel’s evidence was that he has not had any offers of part-time or casual work from the respondent since he tendered his resignation. He has obtained part-time work with a previous employer.
[9] The respondent tendered the letter of resignation from Mr Patel dated 15 June 2016 in which Mr Patel stated that his last day of work would be 29 June 2015 7. It is set out below.

“Resignation Letter

I (Sandeep Patel) would like to resign from my current position at Red Robot Industries. My last day at Red Robot Industries will be 29^th June 2016.

I would like to Thank Duncan and Phil for their kind support during working at Red Robot Industries.

Sandeep Patel”

[10] Mr Amos, a director of the respondent, gave evidence regarding the advice he had obtained concerning Mr Patel’s entitlements from the Industrial Relations Hotline of the Australian Capital Territory (ACT). It was on the basis of that advice that he advised Mr Patel regarding what was necessary to enable him to access his accrued leave at the higher rate.
His evidence concerning the circumstances surrounding the termination of Mr Patel’s employment is set out below:

“…..Okay.  For some time Mr Patel had been expressing that he wasn't very happy in his management role; he just didn't really feel that he liked the management role at all, so we wanted to keep him on because he was an integral part of the team and we wanted to keep him as part of the team, but he was clearly not happy with what he was doing, and in one of the encounters that we had, which we've documented, we sat down over a breakfast and we had a chat about what he thought his role would look like if it were a perfect role, and from that point forward we then endeavoured to create a role that would suit him and the skills that we needed that he had to offer and the experiences that he had.  We then went through the process - I did advise him at that meeting, I said you do realise, Sandeep, that if you change from the current management role to this role of a technician that your wage will change, and we went through that on several different meetings to make sure that he understood that.  He was much happier with that idea, so we went through the process of creating a new job for him.  Subsequent to that he obviously wanted to go on holiday, which was a good thing, and he left, everyone was happy, it was fine; there was nothing that we thought untoward about it.  We even presented him with his new employment engagement letter, which the first one actually had "full-time" marked on it, which I have here.  And in our subsequent meeting we talked about - which he wrote on and we basically changed - we talked about, you know, whether or not he would prefer to be casual or part-time.  It was subsequently decided that he would prefer to be part-time and that would free him up to do other things that he was interested in.  He was interested in working for someone else on a Monday or a Friday to supplement that income.  That was the reason why he wanted to do that.  We were very supportive of that.  We wanted to continue to support him with the view of him, you know, not suffering - that's definitely not what we were after - so we went about creating the job role for him that would suit his requirements.  Subsequent to that he went on holiday, and yes, I sent a message to him to say there's not a lot of work on, but really the intentions of it was if you want to extend your holiday you're very welcome to do so, there's really no need for anything else.  We had of course intended that he would come back and actually talk to us and get it sorted out.  At no time did he even attempt to engage us to have a chat about this so that we could let him know that we did want him and that we wanted him on board.  He just never bothered to contact us, and even though we attempted to contact him…..” 8

[11] Mr Amos said that the respondent had not given Mr Patel new work because he would not come back in and sign a new contract. I asked Mr Amos why Mr Patel needed to sign a new contract. He did not seem to understand what was necessary to establish Mr Patel’s new employment.
[12] I am satisfied and find that the date of cessation of Mr Patel’s employment was 29 June 2016.

Did Mr Patel resign his employment or was his employment terminated at the initiative of the respondent

[13] I am satisfied that Mr Patel resigned his employment to do what was he thought was necessary to access his accrued leave at the higher rate of pay applicable when he had accrued it. Although he resigned as a result of a misconception on his own and the respondent’s part, he made a considered decision to tender his resignation and then proceed to casual or part-time work. He was not obliged to resign. The employer did not force him to do so. He was not left with any other choice but to resign. I am satisfied that the respondent did not connive to provide false advice to obtain his resignation. I am not persuaded that Mr Patel’s employment was terminated as a result of a dismissal at the initiative of the respondent.

[14] For these reasons the application is dismissed.

SENIOR DEPUTY PRESIDENT

 1   Transcript PN164 - PN166

 2   Exhibit Patel 1

 3   Exhibit Patel 2

 4   Exhibit Patel 3

 5   Transcript PN49 - PN51

 6   Transcript PN79

 7   Exhibit Respondent 1

 8   Transcript PN121

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