Shannon Poelitz v Cole Excavations
[2022] FWC 3206
•5 DECEMBER 2022
| [2022] FWC 3206 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Shannon Poelitz
v
Cole Excavations
(U2022/8194)
| DEPUTY PRESIDENT LAKE | BRISBANE, 5 DECEMBER 2022 |
Application for an unfair dismissal remedy – jurisdictional objection – minimum employment period – whether there was a resignation – Applicant protected from unfair dismissal – applicant resigned – application dismissed
Mr Shannon Poelitz (the Applicant) has made an application pursuant to s.394 of the Fair Work Act 2009 (the Act) alleging that the way in which his employment ended with Cole Excavations (the Respondent) constituted a dismissal, and was harsh, unjust, or unreasonable.
The Applicant commenced employment on 19 March 2021 and his employment came to an end on 29 July 2022. In his application filed on 9 August 2022, the Applicant states that he did not resign verbally or in writing. He had not received a dismissal or separation certificate from the Respondent.
The Respondent raised jurisdictional objections to the Applicant’s application on the basis that he did not meet the minimum employment period and that he was not dismissed, submitting that he voluntarily resigned on 29 July 2022 without notice.
It is not in dispute that the Applicant’s employment did not end by reason of redundancy. Whether the Respondent is a small business employer, whether the Applicant is a person protected from unfair dismissal, and was he dismissed on 29 August 2022 are matters for determination.
Directions were set for the filing of material and the matter was dealt with by way of a Hearing by telephone on 23 November 2022. Before the Hearing, I had to consider the preliminary matter regarding representation of the Respondent
Preliminary Matter
Representation
The Respondent sought to be represented, which was not opposed by the Applicant. Even so, I am still required to consider whether permission ought to be granted under s.596 of the Act.[1] The first pre-requisite: the presence of one of the criteria under s.596(2), does not immediately invoke the right to representation but rather “involves an evaluative judgment akin to the exercise of discretion.”[2] Once that first step is satisfied, the second step “involves consideration as to whether in all of the circumstances the discretion should be exercised in favour of the party seeking permission.”[3]
The Respondent submitted that the jurisdictional objections raised are quite complex. Considering that there are two objections, being that the Applicant did not meet the minimum employment period with the small business component and that the Applicant was not dismissed are nuanced legal arguments. Finally, that the presence of the representative would also enable the matter to be dealt with more efficiently.
I was satisfied that it would be of use to the Commission – and would not unduly prejudice the Applicant – to have the assistance of the Respondent’s legal representative. Accordingly, I allowed Ms Slyvia Hoefnagels of Ryan Murdoch O’Regan Lawyers to appear for the Respondent.
Chronology
The Applicant was employed on 19 March 2021 as a casual Machine Operator. He was offered a permanent role as Site Supervisor on 22 April 2022.
On 29 July 2022, Mr David Cole, the Director of Cole Excavations, informed the staff that they would finish work early and have lunch at a pub in Boonah.
The staff remained at the pub and continued drinking alcohol in the smoking area. The Applicant and Mr Cole had a discussion, leading to an altercation.
The facts regarding the altercation are in dispute. The Applicant engaged Mr Cole in discussion regarding a pay increase. The conversation aggravated both the Applicant and Mr Cole. Mr Cole claims the Applicant verbally and in writing offered his resignation because of the conversation which the Applicant denies. The Applicant alleges that Mr Cole attempted to fight him and pushed a table at him, which Mr Cole denies.
Following the altercation, Mr Cole called Mrs Katrina Cole, Mr Cole’s wife and employee of the Respondent. They discussed the event and Mr Cole stated that the Applicant resigned, and he accepted his resignation.
On 31 July 2022, Mrs Cole emailed the Applicant confirming that his resignation was accepted, and he was not expected to be at work on 1 August 2022. The Applicant replied stating he did not resign and requested Mrs Cole to prove that he did.
On 2 August 2022, the Applicant began working at Cleeland Excavations Pty Ltd, a competitor of the Respondent.
The evidentiary cases
The Respondent’s case
To summarise, the Respondent asserted three jurisdictional points. Firstly, the company met the definition of small business employer. Secondly, the Applicant had not met the minimum employment period of twelve months. Thirdly, the Applicant was not dismissed but offered his resignation at the luncheon.
Mrs Cole during evidence-in-chief provided the names of the staff which amounted to ten employees and only two of the ten are full-time while the rest are part-time.
The Applicant had not met the minimum employment period as he changed roles while employed by the Respondent on 22 April 2022. As the Applicant resigned on 29 July 2022, he was not employed for twelve months and is not protected from unfair dismissal.
Regarding the Applicant’s resignation, the Respondent provided three witnesses who were present at the pub lunch. These are Mr Cole, Mr Marcus Lashman, and Mr Michael Payne. Mr Cole and the two other witnesses are all employees of the Respondent and confirmed that the Applicant during the luncheon had raised the matter of his pay and wanting an increase.
The Applicant had been unrelenting in his persistent questioning of the Respondent regarding how much money that the business makes, and that the Respondent should be more generous with his money to his staff. The Respondent did not want to discuss the matters of pay at the lunch in front of other employees. During the lunch the Applicant repeatedly stated words to the effect of, “I quit”, “I am resigning “, and that he “would not be there on Monday”. Mr Cole asked the Applicant to put his resignation in writing if he was serious.
The Applicant agreed to the demand and allegedly signed a document confirming his resignation. Mr Payne confirmed that the document signed was an oily rag. The men came into possession of the rag when Mr Cole grabbed the attention of a contractor working at the pub. Mr Cole asked if the contractor had pen and paper. The contractor obliged and provided Mr Cole with an oily rag and a pen. Mr Cole then handed these items to the Applicant. The Applicant then wrote on the rag to the effect of, “I, Shannon Poelitz resign from Cole Excavations”. The whereabouts of the rag remain unknown as Mr Cole and Mr Payne stated that neither had possession and the rag likely ended up back with the contractor. However, both Mr Cole and Mr Payne confirm the existence of a signed rag confirming the Applicant’s resignation. Mr Payne also confirms that he had a conversation with the Applicant following the interaction with Mr Cole. Mr Payne told the Applicant that “he would be back”, to which the Applicant stated forcibly, “when I resign, I resign”.
The Applicant’s case
The Applicant asserted in his evidence-in-chief that he has been employed for eighteen months. He began as a casual and after three months was made a permanent employee. The Applicant had changed roles since becoming permanent, going from a machine operator to a supervisor. The Applicant claims there was no difference in the duties as he was acting as a supervisor working as a machine operator and continued to operate machinery as a supervisor. The change in position was to reflect his extended duties.
The Applicant asserts that he never had any intention of resigning. He talked to Mr Payne where he said that he would see him on Monday. Regarding the oily rag the Applicant signed, he asserted that the Respondent provide evidence of the rag with his signature.
Consideration
Section 382 of the Act states:
“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.”
Section 383 of the Act states:
“383 Meaning of minimum employment period
The minimum employment period is:
(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:
(i)the time when the person is given notice of the dismissal;
(ii)immediately before the dismissal; or
(b) if the employer is a small business employer—one year ending at that time.”
Section 23 of the Act states:
“23 Meaning of small business employer
(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.”
Section 386 of the Act states:
“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.”
The intention behind an employee’s resignation was considered by the Full Bench, which cited the test by Rares J in Koutalis v Pollett.[4]
“[13] The Appellant submitted that on the basis of the unchallenged evidence of Dr Mulcahy and the test provided by Rares J in Koutalis v Pollett (Koutalis), the Respondent’s conduct and acts on 13 November 202 indicated that her employment ended on that day.
[14] The Deputy President found that the Respondent did not resign from her employment saying:
[33] It is well established that a resignation must be clear and unequivocal. Having considered the evidence and submissions made, I am not satisfied that the Applicant resigned in November 2019. On the evidence before the Commission, there is nothing that reaches that benchmark.
[34] The circumstances under consideration by Rares J in Koutalis can be distinguished from those presently before the Commission. In Koutalis it was found that the proper inference was that the employee resigned in a conversation with his employer. That was made clear because immediately after that conversation the employee had a further discussion with a third party and in unequivocal terms stated that he had resigned his employment.
[35] To the extent there is a discrepancy between the evidence of the Applicant and the Respondent, I prefer the evidence of the Applicant. The Respondent has proposed three different dates upon which the resignation purportedly occurred. Dr Mulcahy’s contention in this regard was not assisted by his uncertainty as to when the resignation was supposed to have occurred, despite his explanation that it was a result of the complexity of his diary which was managed by the Practice Manager. The Applicant, by way of contrast, was unequivocal in her denial that she did not, at any stage in November 2019, tender her resignation or ‘walk out’ with the intention not to return.
[36] Even if I accept the version of events advanced by Dr Mulcahy that the Applicant, on 13 November 2019 (ie the third date put forward by the Respondent), said “That’s it. I’ve had enough of this place, I’m out of here” and “I’m leaving. I’m out of here” and took her belongings and left, those words and conduct alone do not in my view constitute a clear and unequivocal intention to resign. This is particularly so given the conduct of the Applicant afterward, in that she attended work the following day as normal.
[37] Despite Mr Wilson’s submission that there was no suggestion of a case of a ‘heat of the moment’ resignation, it was Dr Mulcahy’s evidence that the Applicant was in an agitated state and was aggressive at the time in question. Even if I did accept the Respondent’s evidence in this regard, the Applicant’s words and conduct could not be reasonably understood to be conveying a real and unequivocal intention to resign.
[38] In summary, I am not satisfied that the evidence supports a finding that the Applicant resigned in November 2019. Accordingly, I am satisfied and find that the Applicant had more than 12 months employment with the Respondent when her employment ceased on 20 July 2020. As a consequence, she is a person protected from unfair dismissal.
…
[28] In Koutalis, at issue was whether Mr Pollett resigned or was constructively dismissed. In relation to the former issue His Honour said:
“The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:
This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) [2004] HCA 35; 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 at 461-462 [22]].
[emphasis added]
In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:
In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer director by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.
[29] At paragraph [46] of that decision His Honour then went on to say:
In my opinion, the proper inference, having regard to all of the circumstances, is that Mr Pollett resigned in the conversation he had with Mr Koutalis on the morning of 5 May 2014. I am satisfied that what happened was set out, in substance, in the evidence of Mr and Mrs Koutalis. That is because immediately after his conversations with his employers, Mr Pollett went across the road and confirmed, in unequivocal terms, that he had resigned to Mr Malovini. Mr Malovini’s evidence satisfied me that, among other things, Mr Pollett had decided over the previous two weeks of his leave to start up his own business and that he had had enough of dealing with Mr and Mrs Koutalis.
[30] We see nothing inconsistent in the decision of Rares J as set out above and the approach taken by the Deputy President. We reject any suggestion that Koutalis stands for the proposition that whether or not a resignation occurred is to be determined without any regard to surrounding circumstances and events. Indeed, His Honour expressly stated that this question is to be determined “based on what each party to the conversation had said or done, in light of the surrounding circumstances.” Further, in Koutalis His Honour had regard to Mr Pollett’s conduct after the conversation with the employer. Accordingly, we reject the contention that the events of 14 November 2020 are irrelevant and consideration of them is inconsistent with Koutalis. We consider they are matters to which the Deputy President was properly able to have regard.
[emphasis not added]
[31] At paragraph [34] of the Decision, the Deputy President said:
The circumstances under consideration by Rares J in Koutalis can be distinguished from those presently before the Commission. In Koutalis it was found that the proper inference was that the employee resigned in a conversation with his employer. That was made clear because immediately after that conversation the employee had a further discussion with a third party and in unequivocal terms stated that he had resigned his employment.”
[32] We are unable to see how this is inconsistent in any material way with the statement made by His Honour at paragraph [46] of Koutalis set out above.”
Minimum employment period
I accept that the Respondent is a small business employer pursuant to s.23(1) of the Act. The Respondent employed less than fifteen employees. The question turns to whether the Applicant was protected from unfair dismissal by being an employee of the Respondent for twelve months. I find that the Respondent’s arguments have no ground as the clock does not reset upon taking a new position at the same company. Accordingly, the Applicant has been an employee of the Respondent for over twelve months. On balance, I accept the Applicant’s evidence and reject the contention made by the Respondent. The Applicant has met the minimum employment period.
Whether resignation or dismissal
Now I must turn my mind to whether the Applicant resigned or was dismissed on 29 July 2022.
Taking into account all of the circumstances and the totality of the evidence in this matter, I am satisfied that the Applicant resigned. A reasonable person in the position of the parties would believe that the Applicant intended to resign. The Applicant stated that he was resigning on several occasions throughout the afternoon. This is supported by the witnesses provided by the Respondent, which I accept provided reliable evidence. In particular, I accept Mr Payne’s evidence which confirmed the existence of the written resignation, provided the Commission with a reliable account of events, and that the Applicant was certain in his decision to resign. Further, I am persuaded that this is the case as the Applicant never returned to work for the Respondent and secured another role with the Respondent’s competitor within two days of his resignation.
Accordingly, I find that there was not a dismissal and the Applicant resigned from his role with the Respondent.
Conclusion
I find that the Applicant resigned and was not dismissed pursuant to s.386 of the Act.
I must dismiss the application and I order accordingly.
DEPUTY PRESIDENT
[1] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268.
[2] Asciano Services Pty Ltd v Zak Hadfield [2015] FWCFB 2618, [19], (3).
[3] Wellpacks Holdings Pty Ltd t/a ERGT Australia v Mr Kevin Grovender [2021] FWCFB 268, [48].
[4] [2015] FCA 1165 cited in Canberra Urology Pty Ltd v Renee Lancaster [2021] FWCFB 1704 at [13]-[14], [28]-[32] per Catanzariti VP, Young DP, Wilson C.
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