Shane Bartlett v Jagdaim (Australia) Pty Ltd T/A Jagdaim

[2014] FWC 3106

[2014] FWC 3106

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Shane Bartlett
v
Jagdaim (Australia) Pty Ltd T/A Jagdaim
(U2013/12141)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 12 MAY 2014

Application for relief from unfair dismissal - jurisdictional objection (resignation) dismissed- dismissal was unfair - compensation ordered.

[1] Mr Shane Bartlett’s employment with Jagdaim (Australia) Pty Ltd (Jagdaim) ended on 24 July 2014. Mr Bartlett said his employment was terminated by Jagdaim. Jagdaim said he resigned his employment.

Did Mr Bartlett resign his employment on the morning of 24 July 2014?

[2] On 23 July 2014, Mr Bartlett and Mr Brian Wheeler, a director of Jagdaim, had an altercation. Mr Wheeler admitted that he told Mr Bartlett not to “be a f..... idiot.” While there is a dispute between Mr Bartlett and Mr Wheeler about what led to this incident, Mr Wheeler accepted he made the comment but said the language was commonly used in the workplace including by Mr Bartlett. In fact, it was put to Mr Bartlett that he said to Mr Wheeler during the same incident that he knew “what [he] was f..... doing as [he] was the one with the forklift licence.” Mr Bartlett accepted that it was possible that he had said this but did not remember. In any event I do not need to resolve the dispute between the parties about why the incident occurred.

[3] The next day Mr Bartlett approached Mr Brian Madafferi, another director of Jagdaim, to complain about Mr Wheeler. Mr Bartlett said he told Mr Madafferi that he was upset at the way Mr Wheeler had spoken to him and that he was looking for other work. 1 Mr Madafferi agreed that Mr Bartlett had told him that he was unhappy at work and that he would be looking for other work. He said he told Mr Bartlett that he accepted his resignation.2 In cross examination Mr Madafferi said that Mr Bartlett told him that he couldn’t take the abuse and Mr Bartlett said “I am giving you the thumbs up I’m leaving.” Mr Bartlett denied that he said this.

[4] There is no doubt that Mr Madafferi took what Mr Bartlett was saying as a resignation. He told Mr Wheeler that Mr Bartlett had resigned. Mr Wheeler gave evidence that he contacted the Victorian Automobile Chamber of Commerce (VACC) about Mr Bartlett’s resignation and was told that he was able to offer Mr Bartlett payment in lieu of notice. Mr Wheeler said that he was told by the VACC that Mr Bartlett was required to give them one week’s notice. Mr Wheeler and Mr Madafferi had a discussion about this and agreed that they would not require Mr Bartlett to work out his notice and he would be paid in lieu.

[5] That afternoon Mr Bartlett received news that his father had died and he left work after receiving money from Mr Madafferi to pay for petrol. Mr Wheeler spoke with Mr Bartlett and told him he would ring him that night. Mr Madafferi and Mr Wheeler decided in the circumstances to offer Mr Bartlett a further two weeks pay.

[6] That night Mr Wheeler rang Mr Bartlett and, after expressing his condolences for the death of Mr Bartlett’s father, asked him if he wanted to discuss his resignation. He told him that they would pay him a further two weeks pay and he would not have to return to work and he could stay with his family. Mr Wheeler said Mr Bartlett accepted this offer and asked Mr Wheeler to transfer the money to his account. He also asked for a reference and severance letter. Mr Wheeler agreed but told him they would keep some of the money aside and he could come in on Monday, 29 July 2013 to finalise his resignation. 3 Mr Madafferi said he was in the room when the phone call was made and while he could not hear Mr Bartlett he confirmed Mr Wheeler’s version of events.

[7] Mr Bartlett said that when Mr Wheeler rang him, Mr Wheeler told him that he thought he would need time off. Mr Bartlett told Mr Wheeler that he would be back at work on Friday. Mr Wheeler told him that their accountant had said they needed to lay off staff and that he would pay him three weeks pay and his holiday pay and his services were no longer required. Mr Wheeler said that members of his family overheard the conversation but they were not called to give evidence. Mr Wheeler said to call him back if he accepted the offer. Mr Bartlett said he accepted the offer because he had no choice.

[8] There is no suggestion that there was any animosity between Mr Madafferi and Mr Bartlett. I accept Mr Madafferi’s evidence that Mr Bartlett told him that he was going to leave. Mr Bartlett agreed that he told Mr Madafferi that he was looking for other work. However I find that Mr Madafferi’s conclusion that Mr Bartlett had resigned was mistaken.

[9] I accept that Mr Wheeler genuinely believed that Mr Bartlett had resigned.

[10] When Mr Wheeler spoke to Mr Bartlett that night he thought that Mr Bartlett had resigned. I accept that when he offered Mr Bartlett pay in lieu of notice that he thought he was doing Mr Bartlett a favour by not requiring him to work out his notice so that he could spend time with his family. I also accept Mr Bartlett’s evidence that he did not think he had any option but to accept Mr Wheeler’s proposal. Given the circumstances, it is not surprising that Mr Bartlett was in no position to deal with the situation he found himself in.

[11] I find on the evidence that Mr Bartlett did not resign his employment. I find that Mr Madafferi misunderstood what Mr Bartlett was saying. I also find that in accepting Mr Wheeler’s offer of pay in lieu of notice, Mr Bartlett did not resign his employment. I find therefore that Mr Bartlett’s employment was terminated at Jagdaim’s initiative. Therefore Jagdaim’s jurisdictional objection is dismissed.

[12] In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the Commission must take into account the following:

Whether there was a valid reason for the dismissal related to Mr Bartlett’s capacity or conduct (including its effect on the safety and welfare of other employees): s.387(a)

[13] There was no valid reason for the termination of Mr Bartlett’s employment. The only reason Mr Bartlett’s employment was terminated was because Mr Wheeler mistakenly believed he had resigned.

Whether Mr Bartlett was notified of that reason: s.387(b)

[14] The reason for the termination was not related to Mr Bartlett’s capacity or conduct..

Whether Mr Bartlett was given an opportunity to respond to any reason related to the capacity or conduct of the person: s.387(c)

[15] Because the reason was not related to Mr Bartlett’s capacity or conduct this criteria is not relevant.

Any unreasonable refusal by the employer to allow Mr Bartlett to have a support person present to assist at any discussions relating to dismissal: s.387(d)

[16] There was no refusal to allow Mr Bartlett to have a support person.

If the dismissal related to unsatisfactory performance—whether Mr Bartlett had been warned about that unsatisfactory performance before the dismissal: s.387(e)

[17] The dismissal did not relate to Mr Bartlett’s work performance.

The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.387(f)

[18] Jagdaim had seven employees. I consider the size of the business impacted negatively on the procedures followed.

The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal: s.387(g)

[19] Jagdaim does not have any dedicated human resource management specialists or expertise. This impacted negatively on the procedures followed in effecting the dismissal.

Any other matters that the Commission considers relevant: s.387(h)

[20] The dismissal occurred at a difficult time for Mr Bartlett as his employment was terminated on the day his father unexpectedly died.

Conclusion

[21] I find that as there was no valid reason for the termination of Mr Bartlett’s employment, he was unfairly dismissed.

Remedy

[22] Given the change in the work performed by Jagdaim I find that reinstatement is inappropriate.

[23] In assessing any amount in lieu of reinstatement, the Commission is required to have regard to the following:

The effect of the order on the viability of the employer’s enterprise: s.392(2)(a)

[24] Mr Wheeler gave evidence that Jagdaim could not afford to pay six months pay as compensation. Employees had been told in July 2013 that the business was in financial difficulties. Employees were advised then of the need for redundancies and cut backs to overtime as well as the need for employees to take on additional tasks.

The length of Mr Bartlett’s service with the employer: s.392(2)(b)

[25] Mr Bartlett had worked for Jagdaim for just over three years. This is neither a short or long period of employment and is a neutral factor in assessing compensation.

The remuneration that Mr Bartlett would have received, or would have been likely to receive, if he had not been dismissed: s.392(2)(c)

[26] It was submitted that Mr Bartlett would have remained in employment until the department shut down in February 2014. Jagdaim submitted that he would not have remained in employment for more than two weeks because they needed to make someone redundant and Mr Bartlett would have been selected because his personal issues had made it harder to keep him employed.

[27] I accept the submissions of Jagdaim. I do not consider that Mr Bartlett would have remained in employment for any longer than two weeks. Jagdaim needed to make an employee redundant. Mr Bartlett had already advised Mr Madafferi that he was unhappy and was looking for other work. While Mr Bartlett had been assisted with his personal issues by Jagdaim, Mr Wheeler’s patience with Mr Bartlett had come to an end. I consider that Jagdaim would have made Mr Bartlett redundant. While Jagdaim had commenced the consultation process required under the relevant modern award, it was not completed. That process however would have taken no more than two weeks to complete.

The efforts of Mr Bartlett (if any) to mitigate the loss suffered because of the dismissal: s.392(2)(d)

[28] Mr Bartlett has not worked since the termination of his employment. He gave evidence that he had attempted to find work.

The amount of any remuneration earned by Mr Bartlett from employment or other work during the period between the dismissal and the making of the order for compensation:s.392(2)(e)

[29] Given my decision, this criterion is not relevant.

The amount of any income reasonably likely to be so earned by Mr Bartlett during the period between the making of the order for compensation and the actual compensation: s.392(2)(f)

[30] Given my decision, this criterion is not relevant.

Any other matter that the Commission considers relevant: s.392(2)(g)

[31] There are no other matters that are relevant.

Conclusion

[32] I therefore order that Jagdaim pay Mr Bartlett $1,568.14 within 21 days of this decision.

DEPUTY PRESIDENT

Appearances:

Mr G. Dircks representing the Applicant.

Mr B. Wheeler representing the Respondent.

Hearing details:

2014:

Melbourne;

5 May.

 1 Exhibit A2 at [13].

 2   Exhibit R1.

 3 Exhibit R2 at [5].

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