Soto v Cecil Bros. and Suburban Pty Ltd
[1996] IRCA 519
•28 October 1996
DECISION NO:519/96
C A T C H W O R D S
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - alleged CONSTRUCTIVE DISMISSAL - whether termination at initiative of the employer - no case to answer submission - application dismissed.
Industrial Relations Act 1988 (Cth) Ss 170EA.
Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200.
Dalgleish v Fugro Survey Pty Ltd IRCA No 357 of 1996, RD Farrell JR, 8 August 1996, unreported.
Gilmore v Cecil Bros. (1996) 76 WAIG 1184.Juan Agustin SOTO -v- CECIL BROS. & SUBURBAN PTY LTD
WI 1276 of 1996BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 28 October 1996IN THE INDUSTRIAL RELATIONS )
COURT OF AUSTRALIA )
WESTERN AUSTRALIA )
DISTRICT REGISTRY )No. WI 1276 of 1996
BETWEEN:
Juan Agustin SOTO
ApplicantAND:
CECIL BROS. & SUBURBAN PTY LTD
RespondentMINUTE OF ORDERS
BEFORE: R. D. FARRELL JR
PLACE: PERTH
DATE: 28 October 1996
THE COURT ORDERS THAT:
1. The application is dismissed.
NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRYWI 1276 of 1996
BETWEEN:
Juan Agustin SOTO
ApplicantAND:
CECIL BROS. & SUBURBAN PTY LTD
RespondentREASONS FOR DECISION
28 October 1996 R. D. FARRELL JR
This is an application under Section 170EA of the Industrial Relations Act 1988 for compensation arising from the alleged unlawful termination of the employment of the applicant, Juan Agustin Soto (“Mr Soto”), by the respondent, Cecil Bros. & Suburban Pty Ltd (“the Company”). Reinstatement is not sought.
The Company is part of a Western Australian family-owned group of companies (“the Group”) engaged in the footwear retail business. The Group runs various retail chains throughout Australia, including the “Betts and Betts” chain of shoe stores.
Mr Soto worked for the Company from 1985 to 1990 and again from 1991 to 1996. He first worked as a store manager in 1987.
3A. On 7 February 1996, Mr Soto tendered a letter of resignation to Mr Ron Boskell (“Mr Boskell”), the General Manager of the Company. The letter, dated 6 February 1996, was in the following terms:
“Dear Mr Boskell,
It is with great regret that I have not been able to fulfil my goals as I would have liked to have done, within this prestigious company, and in view and consideration of the events that have taken place in the last couple of months regarding my career, I have no choice but to resign from my position accordingly.
I will work for this company, until Friday 1st of March 1996, in order to give you some time to find a replacement for my position.
I take this opportunity to thank you and the directors of this company, for giving me the satisfaction of working at management level with the power of being able to make decisions on behalf of the company and trusting me to manage several of your shops. I wish the company every success in the future.
Yours sincerely,
(signed)
Juan A. Soto
Manager
Betts & Betts
Maddington
Peter Breckler State Manager
Brien Mitchell R.G.M.”
Mr Brien Mitchell (“Mr Mitchell”) was the Retail General Manager (“R.G.M.”) directly responsible for Mr Soto’s supervision. Each of the various Western Australian R.G.M.s were allocated a group of store managers to supervise. They answered to Mr Peter Breckler, the State Retail Manager. Mr Breckler in turn answered to Mr Boskell.
Mr Boskell had been approached by Mr Soto in about November 1995 when he visited Mr Soto at the store he was then managing in Fremantle. Mr Soto expressed a concern to Mr Boskell that Mr Breckler did not like him. Mr Boskell had advised Mr Soto to raise his concerns with Mr Breckler directly, and later told Mr Breckler to expect Mr Soto to contact him. It appears Mr Soto never did so.
Mr Boskell was also aware that Mr Soto had been transferred by Mr Breckler from the Fremantle store to the smaller Maddington store on 24 January 1996. Both were, in terms of the Company’s store rating system, “B class” stores. While not formally described as such, the transfer was clearly regarded by Mr Soto’s fellow managers as a demotion. Mr Boskell also became aware that immediately after this transfer, Mr Soto began insisting on recording conversations between him and Mr Mitchell using a dictaphone.
Mr Boskell, who had overall responsibilities across the Group’s operations, including distribution, retailing, marketing and training, referred the resignation to Mr Peter Breckler and Mr Brien Mitchell. They indicated to him their intention to accept Mr Soto’s resignation. Mr Boskell decided to leave it to them and not to interfere.
Mr Mitchell advised Mr Soto on 9 February 1996 that his resignation had been accepted.
In the days after his resignation, Mr Soto procured references from Mr Boskell, Mr Mitchell and Mr T.N. Hall, the Company’s Retail Administration Manager. The latest of these, from Mr Boskell, is dated 11 March 1996.
Mr Soto finished work on 1 March 1996.
On 20 May 1996, Mr Soto initiated this claim for compensation by filing an application in the Australian Industrial Relations Commission. Mr Soto gave the following brief summary of the circumstances surrounding his termination on the application form:
“After being subpoenaed to give evidence on the 4/12/95 in the State Industrial Relations Commission Case 667/1995 I was harassed, victimised and intimidated frequently by my superiors in the Company, which led to letters of warning from them without any factual reasons. Subsequently I was demoted and management continued to victimise me to the point where I was humiliated in front of all the store managers and supervisors (R.G.M.s) at a Managers’ meeting (in Morley Store) and constantly by the State Manager (Peter Breckler). Following the above letters I received from the management and other verbal warnings I did not have any other options and was unfairly forced to hand in my resignation.”
The delay in filing the claim was not relied upon by the Company in these proceedings. In any event, Mr Soto explained that he had not been aware until then that it was possible for an employee to bring a claim for unlawful dismissal where they had been forced to resign.
A conciliation conference was held on 25 June 1996. On 1 July 1996, as a result of that conference, Mr Boskell composed a letter to Mr Soto in the following terms:
“Dear Juan,
Over the past week the company has taken the opportunity to consider the issues raised by you at the conciliation conference held on the 25th of June 1996 at the Australian Industrial Relations Commission.
Although we reject completely the allegations made against the company it has become clear that you may regret having resigned.
Therefore we would like to offer you the opportunity to rejoin the Betts and Betts retail team. The salary and other terms and conditions of your employment by Cecil Bros and Suburban Pty Ltd. will be identical to those prior to the termination after your resignation, the exact store you will be required to manage has yet to be confirmed however it will be one of the B class category of Betts and Betts stores.
The company on your acceptance of this offer, will continue to insist on the same standard of performance as was required by you before your resignation. You will be required to comply with all company standards and undertake all duties outlined in the Managers Performance Appraisal Kit (The Blue Book). Your performance will (sic) monitored by your R.G.M. through shop visits, benchmarks and performance appraisals.
In order to meet the conciliation deadline this offer of employment is open until 12 noon Thursday 4th July. Please communicate acceptance of this offer in writing to Mr Ron Boskell at the above address.
If this offer is accepted your re-employment will commence at 8.30am on Monday the 15th of July, or such other date as you may stipulate in acceptance of the offer which may be accepted by the company. On commencement please attend a meeting at Head Office with me to discuss your store placement and any queries you may have.
On acceptance of this offer, you must immediately consent to dismissal of your industrial relations claim, with each party bearing it’s own costs.
Whilst the company strongly denies your claim, it believes the making of this offer completely refutes the allegations you have made. Hence, if this offer is not accepted it may be used in answer to your claim.
Yours sincerely,
(signed)
Ron Boskell
GENERAL MANAGER”
Mr Boskell telephoned Mr Soto when there was no reply to the letter. He learned that Mr Soto had not received the letter, which had apparently been delivered to another address. Mr Boskell explained to Mr Soto that the Company would be happy for him to return under the same conditions as he left. Mr Soto replied that that would be impossible; he compared it to “committing hari kari”.
Mr Soto claimed to Mr Boskell during this telephone conversation that Mr Peter Breckler didn’t like him because he had given evidence under subpoena for another former manager, Mr Jacob Gilmore (“Mr Gilmore”), when Mr Gilmore brought an unfair dismissal claim against the Company in the Western Australian Industrial Relations Commission. Mr Soto contended that Mr Mitchell had tried to get rid of him for Mr Breckler, and that, with Mr Breckler in charge of retail operations, he felt there was no future for him as a store manager.
Mr Boskell sent a copy of the letter to Mr Soto anyway, with a cover letter. The cover letter:
·refers to Mr Soto’s belief that he would be victimised by Mr Peter Breckler if he returned;
·refutes that assertion, contending that Mr Soto would be treated fairly and equally; and
·extends the deadline for acceptance of the offered re-employment to 10 July 1996.
The offer was never accepted, and indeed was rejected again by Mr Soto in the course of his evidence. The matter instead proceeded to a hearing over five days before me, in which Mr Soto, who represented himself, called twelve witnesses in support of his claim for compensation.
At the conclusion of Mr Soto’s witnesses, counsel for the respondent submitted that the respondent had no case to answer. He pointed out that the applicant bears the onus of proving on the balance of probabilities that there was a termination at the initiative of the employer. The unlawful termination provisions of the Act only apply where there is such a termination at the initiative of the employer. Counsel for the respondent submitted that the applicant had not satisfied the onus in this case.
Having heard from both the applicant and the respondent on this question, I reserved my decision.
Whether There Was a Termination at the Initiative of the Employer
I have considered many documents and also heard evidence from Mr Soto, Mr Mitchell, Mr Peter Breckler, Mr T.L. Ward and Mr Boskell concerning the events leading up to Mr Soto’s decision to tender the letter of resignation. The following account of those events sets out my findings of fact concerning those events.
In the years since his return to the Company in 1991, Mr Soto’s career progressed steadily. In that time, Mr Soto was transferred to increasingly larger stores, culminating in his becoming manager of the Fremantle store in November 1994. His performance up to that time was generally well regarded.
Mr Soto’s R.G.M. at Fremantle was Mr Greg Clarke. Mr Soto received no indication from Mr Clarke that his performance was unsatisfactory.
In June 1995, Mr Soto received a company notice advising that the Company’s Industrial Relations Manager, Mr Jacob Gilmore, no longer worked for the Company. Mr Soto had had frequent dealings with Mr Gilmore, and had a high regard for his abilities. Mr Soto was surprised that the Company had dispensed with Mr Gilmore’s services.
Mr Gilmore promptly lodged a claim in the Western Australian Industrial Relations Commission, and his dismissal became the subject of gossip within the Company. Mr Soto came to believe, based upon what he had heard from Mr Gilmore or from others, that Mr Gilmore had been dismissed due to a long-running family dispute between Mr Danny Breckler, the Managing Director of the Group, and Mrs Lesham, the Life Governing Director of Cecil Holdings Pty Ltd, who is Mr Danny Breckler’s aunt and Mr Gilmore’s mother-in-law.
Mr Gilmore contacted Mr Soto in about September 1995, and asked to have lunch with him. Mr Soto agreed. Mr Terry Hall (“Mr Hall”) the Retail Administration Manager, happened to visit the Fremantle store on that day in the ordinary course of his supervisory duties, and was at the store when Mr Soto was leaving to meet Mr Gilmore. Mr Soto told Mr Hall that he was having lunch with Mr Gilmore.
At the lunch, Mr Gilmore asked Mr Soto for his assessment of Mr Gilmore as a Manager. Mr Soto indicated that he assessed Mr Gilmore highly. Mr Gilmore asked whether Mr Soto would be prepared to tell the truth under oath about Mr Gilmore’s performance if the matter went to a hearing in any Commission and Mr Gilmore subpoenaed him. Mr Soto said he would. Mr Gilmore asked Mr Soto to let Mr Hall know Mr Gilmore would like to speak with him. When Mr Soto returned to the store he advised Mr Hall of Mr Gilmore’s request. As a result, Mr Hall briefly met with Mr Gilmore too. When Mr Hall had concluded his tasks at the Fremantle store, he returned to his base at the Company’s head office at West Perth.
Mr Hall’s recollection of these events was vague, which was consistent with his not having regarded them with the same importance as Mr Soto. To the extent that Mr Hall’s recollection differs, as it does in unimportant details, I regard the evidence of Mr Soto as more reliable. However, Mr Hall’s credibility was not in dispute, and I accept his evidence that he did not discuss the fact that he and Mr Soto met Mr Gilmore with any other members of management.
Mr Clarke went on leave in about October 1995, and Mr Mitchell assumed responsibility for the Fremantle store in his absence. He visited the store at least once while Mr Clarke was on leave, and was not impressed by what he saw. The store, which was situated in an old building, appeared shabby. The displays of merchandise were not up to what Mr Mitchell regarded as the Company standard. The window displays, which were regarded as especially significant in a locality such as Fremantle which had considerable window shopping, were not effective and not full. He said little to Mr Soto about these perceived shortcomings, given that he was only filling in as Mr Soto’s R.G.M.
On returning from leave, Mr Clarke tendered his resignation. This prompted a rearrangement of responsibilities between the R.G.M.s including the handing over of supervision of Mr Clarke’s stores to other R.G.M.s. Mr Clarke began visiting these stores with his various successors as R.G.M., conducting “hand-overs” where the new R.G.M. was introduced to the store managers and staff.
It was decided that Mr Mitchell should become R.G.M. for the Fremantle store. However, Mr Peter Breckler decided to personally attend the hand-over at the Fremantle store, rather than leave it to Mr Clarke and Mr Mitchell. He decided to become involved because:
·He had heard that Mr Soto was doing a second job on Company time - specifically, acting as a Court interpreter. (Mr Soto was proficient in the language of Chile). He understood Mr Soto did this by mobile phone. Mr Mitchell had confirmed to Mr Breckler that he had seen Mr Soto with a pager and a mobile phone;
·Mr Breckler had had reports that Mr Soto was “hard to find” and rarely on the shop floor;
·He had a long standing concern about what he perceived as Mr Soto’s lack of interest in Company training sessions, dating back to a session in February 1995 when Mr Soto had appeared uninterested and had been a negative influence; and
·Mr Soto’s store was perceived to have an unusually large wage bill, which might have indicated an uneconomic rostering of staff.
On 25 October 1995, Mr Breckler, Mr Clarke and Mr Mitchell rendezvoused at a coffee shop in Fremantle near the store. Mr Breckler apprised the others of his concerns. Mr Mitchell volunteered his own observations. Mr Clarke had little to say.
They went on to the store. Mr Soto, who was not expecting the visit, met them at the door.
Mr Breckler raised his concerns with Mr Soto in what became a three hour discussion, which was at times heated. In the course of the conversation:
·Mr Soto denied acting as a Court interpreter. He explained that he had the pager and mobile phone because he was looking after his brother-in-law’s cleaning business while he was away for about six weeks. He took messages on the pager if there were problems, but dealt with them after work;
·Mr Breckler stressed the need for Mr Soto to remain near the shop floor. He raised the fact that Mr Soto had established an office for himself upstairs, away from the shopfloor, with a connecting intercom, and demanded that it be dismantled. Mr Soto defended the establishment of the office, explaining that it left more room downstairs for stock, allowing stock to be stored closer to the shop floor; and
·Mr Soto expressed his dissatisfaction with the Company’s program, and expressed his belief that he could do a better job of training than the person currently responsible for that function.
Mr Breckler intended that his discussion with Mr Soto on that day be regarded as a formal disciplinary warning. He later arranged for Mr Mitchell to document it.
It seems clear that the chief reason Mr Breckler took the step of issuing a formal warning was Mr Soto’s performance of duties for another business in Company time. Mr Breckler regarded this as a serious matter, and while there was no written policy prohibiting it, he found it very hard to accept that Mr Soto would not have been aware that it was wrong.
Mr Breckler concedes that the other perceived deficiencies in Mr Soto’s performance would not, in themselves, have justified a formal warning. Mr Soto, in the exercise of his discretion as store manager, had set up an upstairs office to solve a perceived problem in storage space for stock. The cost of doing so was Mr Soto’s occasional remoteness from the shopfloor. There was no complaint over several months from his previous R.G.M. However, Mr Mitchell and Mr Breckler held the view that Mr Soto’s occasional remoteness from the shopfloor was a greater problem than the storage problems, and ordered that the office be relocated. That was their prerogative. Had Mr Soto defied their direction then some disciplinary measure would be justified. Until such time as they made their wishes known, however, Mr Soto was merely exercising his own judgment as to how the store should be best managed, and should not be subject to a formal disciplinary warning merely because his judgment differed from that of his superiors.
While references may have been made by Mr Breckler to the effect that this was a warning, I accept that it was not made sufficiently clear to Mr Soto that it was proposed by the Company that Mr Breckler’s discussion with him would be treated as a formal disciplinary warning.
There is no dispute that Mr Soto immediately ceased looking after his brother-in-law’s business, and immediately relocated the office to the ground floor.
Mr Mitchell wrote a memorandum to Mr Soto, dated 31 October 1996, in the following terms:
“Dear Jaun (sic),
RE: POINTS DISCUSSED WITH JUAN SOTO
Present: Peter Breckler, Juan Soto, Brien Mitchell, Greg Clarke
The following are the key points brought out after discussion with Juan Soto on 25th October 1995 at Betts & Betts Fremantle.
Bad attitude/no interest shown toward Company Management Training.
Performing a second job whilst employed with Cecil Bros.
Ensure your R.D.O. is at the most quietest time of the week.
The above areas have been discussed in detail with Juan and goals will be set within the next 7 days with Brien. This will be done in conjunction with a Company Benchmark. Performance will be measured in comparison with Company’s Standards and if need be, further discussion will take place with appropriate action set.
Juan has an exciting career ahead with Cecil Bros., but must show improvement in the area’s noted, otherwise his position both in store and with the Company will be reviewed.”
(signed)
Brien Mitchell
Retail Group Manager
ccPeter Breckler
Juan Soto”
Mr Breckler could not recall having discussed The question of when Mr Soto took his Rostered Days Off (“R.D.O.’s”). This is more likely to have been raised with Mr Soto by Mr Mitchell. It seems that other staff complained to Mr Mitchell that Mr Soto took too many R.D.O.’s on Sundays. The Fremantle shop was permitted to open on Sundays because it is in a tourist precinct. Mr Soto’s wife also worked in the Fremantle store as a sales assistant. Mr Soto understandably rostered himself and his wife to take their R.D.O.’s together. I see no reason why he shouldn’t. Mr Soto usually posted the store’s rosters four weeks in advance. The existing roster showed Mr Soto working few Sundays.
Mr Soto signed the memorandum after he had given it a cursory glance, assuring Mr Mitchell that he had dealt with it all.
When the memorandum was later presented to Mr Breckler for signature, he pointed out to Mr Mitchell that it should have been headed “1st Written Warning”. Mr Mitchell remedied this oversight by handwriting that title above the heading. Mr Soto was never shown that amendment, and I accept that the intended status of the memorandum was never effectively brought to his attention.
On 8 November 1995, Mr Mitchell conducted the foreshadowed “Managers Benchmark” at the Fremantle Store. A Benchmark requires a detailed assessment of a store and its management by the R.G.M., with marks from 1 to 10 allocated for over ninety detailed criteria. According to the marking system, “10” is excellent, “7” is very good, “5” is satisfactory, “3” means improvement is required and “1” means improvement is essential. The criteria are grouped according to five broad categories, with average marks allocated to each category. Mr Soto’s average marks were:
“Customer Service [5]
Merchandising [5]
Administration [7]
People Development [5]
Shop Performance [5]”
I note that at least one Manager gave evidence of having received comparable marks in his most recent assessment without it giving rise to complaints of unsatisfactory performance. One might expect that scores of “5” or above would be regarded, by definition, to be satisfactory.
Finally, the benchmark document also included Mr Mitchell’s written assessment of Mr Soto’s performance, as follows:
“Benchmark - Juan Soto
Have discussed with Juan the need to get back to basics with the main focus to be on Customer Service/People Development and Merchandising.
Juan believes and in some cases shows, a lot of ability, but needs to understand that at present, he is doing nothing to warrant consideration for promotion. This Benchmark reflects this. A lot of work is needed to back-up Juan’s belief in himself.
A series of areas have been discussed, of which Juan must do some work immediately. These goals have been broken down to 5 basic points listed below:
1. Improve presentation of merchandising/marketing in store.
i) Spend more time on floor working side by side with people.
ii) Window displays (top priority).
iii) All current seasons props/pictures to be used only.2. Develop Michael Wright to Trainee level (6 months)
i) Programme to be made.
ii) Fortnightly discussions.
3. Increase sundries from 1.5% of turnover to 25% (sic)
4. Record and monitor N.P.A. files.
i) Regular staff appraisals to be held.
ii) Recorded appropriately.
5. Use Company Diary daily.
6. Increase time spent on sales floor.
Juan has a lot of work to do, both with his store presentation and his attitude to his performance. Both areas need to be addressed immediately with results needed to be seen with in the next 2 weeks.
Review will be done on 12th December.”
On 4 December 1996, Mr Soto gave evidence in the W.A. Industrial Relations Commission under subpoena as part of Mr Gilmore’s case against the Group. Another store manager, Mrs Claire Daniels, also gave evidence under subpoena as part of Mr Gilmore’s case against the Group.
I have read the transcript of their evidence. Both made favourable assessments of Mr Gilmore’s performance but refrained from criticising the Company. It is perhaps relevant that counsel for the Company in that case cross-examined Mr Soto on the circumstances in which he received the subpoena. Mr Soto explained that he was given the subpoena that morning at the office of Mr Gilmore’s lawyer, having been telephoned the previous night and asked to go there.
Soon after he gave evidence, on or about 6 December 1995, Mr Soto received a telephone call from Mr Mitchell who was in Kalgoorlie. Mr Mitchell made a practice of regularly keeping in telephone contact with his stores to monitor their turnover. The fact that Mr Soto had been a witness in the Gilmore case was raised during this conversation; on balance I accept that it was Mr Mitchell who raised it. It is perhaps not surprising that he would have been curious about the case, which seems to have been a topic of interest throughout the management of the Company. Mr Soto explained that he was subpoenaed, so had no choice but to give evidence. He expressed concern as to how the Company might treat him for giving evidence, though he believed he hadn’t said anything against the Company in his evidence. I accept that, rather than deny the prospect of the Company seeking retribution against Mr Soto, Mr Mitchell instead asked Mr Soto to call him if he had any problems with anyone in the Company, and promised to support Mr Soto should it eventuate. Mr Soto interpreted Mr Mitchell’s promise of support as an attempt to obtain his trust.
Mr Mitchell decided against conducting another benchmark in December, because it was a busy period and he didn’t want to distract Mr Soto. It is clear that disruption to the management of the store at this time would have adversely affected the Company. Mr Mitchell’s awareness of this leads me to accept Mr Soto’s evidence that Mr Mitchell told him in mid-December that he should give a long period of notice if he decided to leave the Company. Mr Mitchell does not recall this. It may have been an inconsequential remark from his point of view. It generated some unease in Mr Soto, however, who had had no thought of resigning up to that point. He responded that he had no intention of leaving.
While not conducting another benchmark, Mr Mitchell visited the Fremantle store regularly throughout November, December and early January. He gave it some priority among his stores because, apart from his base store in Murray Street in the Perth CBD, it was the biggest store in his Group. It was also convenient to his home.
Mr Soto was left with the impression from these visits that Mr Mitchell was basically happy with his performance, though he agrees that Mr Mitchell would always make some changes in his displays, and query other incidental matters. Mr Mitchell was, in fact, concerned that Mr Soto’s performance was not improving in terms of his merchandising. The frequent changes to floor and window displays which Mr Soto regarded as incidental reflected a concern on Mr Mitchell’s part that Mr Soto’s performance in this area was not improving. He was also concerned that Mr Soto’s staff did not approach their tasks with sufficient urgency.
Mr Mitchell found it difficult to communicate his concerns to Mr Soto, because Mr Soto took any criticism personally and reacted defensively. Mr Mitchell also wanted keep their relationship on a positive footing.
The issue of Mr Soto having given evidence in the Gilmore case arose again in conversation during some of Mr Mitchell’s visits. One such discussion was over coffee following a visit on 14 December, 1995. Another discussion, also over coffee, took place on 11 January 1996.
Mr Soto contends that during these conversations, Mr Mitchell:
·questioned him about his evidence;
·asked about Mr Soto’s relationship with Mr Gilmore;
·asked for information about the case;
·asserted that everyone knew that Mr Gilmore was performing well and that he was dismissed because the directors did not like him knowing what they were doing; Mr Soto interpreted this as an attempt to induce him to indicate that he sided with Mr Gilmore rather than the Company;
·advised Mr Soto (in January) of a rumoured outcome to the Gilmore case with, as it turned out, surprising accuracy;
·warned Mr Soto to “keep his nose clean” and not to side with Mr Gilmore or mess around with the directors because “they have so much money they can do whatever they want”; and
·told Mr Soto that he had “killed any chances of a further promotion in the Company”.
Mr Mitchell disputes almost all of these claims. He agrees that the Gilmore case was discussed, and that at some stage he made a comment to the effect that giving evidence for Mr Gilmore was not a smart thing to have done. He mistakenly understood the Gilmore case to have been settled. He agrees the wealth of the family was discussed, but not in the terms Mr Soto suggests. Any references to Mr Soto needing to keep his nose clean and Mr Soto’s prospects of promotion were solely in relation to his performance, and not related to the Gilmore case.
Mr Soto says he felt harassed and intimidated during these conversations. That may well be, given the fears Mr Soto held and the views that he had formed as to the Company’s intentions. Mr Soto displayed a tendency in his evidence, however, to discern hidden meanings in communications that were, at most, ambiguous. Taking into account the possibility that Mr Soto’s recollections reflect what Mr Soto believed Mr Mitchell meant, rather than what Mr Mitchell in fact meant, on balance I accept Mr Mitchell’s account of those conversations.
In the course of a discussion with Mr Soto in January 1996 about Mr Soto’s having administered a written warning to an employee at the Fremantle store, with regard to what had been a long-running difficulty with that employee, Mr Mitchell made the observation to the effect that Mr Soto was “back on track”. I accept that Mr Soto interpreted this remark, made in that specific context, as an overall assessment of his performance in the management of the store, rather than of his management of the particular employee.
Mr Mitchell took six days off work from Tuesday 9 January, returning to work on Monday 15 January, 1996. Mr Soto took time off work commencing 17 January, 1996.
On 18 January, 1996, the Company issued a store notice advertising for new managers. Mr Soto would have become aware of it on his return from leave. Though I accept that this was a usual practice of the Company at that time of year, it caused Mr Soto to become concerned that it was the Company’s intention to replace him.
Mr Mitchell visited the store on Thursday 18 and Friday 19 January 1996, while Mr Soto was away. He found much to find fault with, and had an opportunity to freely discuss the situation at the Fremantle store with Mr Soto’s staff. Mr Mitchell was particularly irked that some of the apparent deficiencies were in areas where he had accepted Mr Soto’s assurances that all was in order.
Mr Mitchell telephoned Mr Soto on the evening of Monday, 22 January 1996, and asked him to meet him at head office the next morning at 9.30am. Mr Soto was not told the purpose of the meeting. He says he speculated he might be offered a promotion.
Mr Soto met Mr Mitchell as requested on Tuesday 23 January 1996, and was immediately ushered into a room with Mr Peter Breckler and Ms Rowena Stocks, the Company’s Industrial Relations Manager. Mr Soto was alarmed and disconcerted by this development.
Mr Mitchell began by advising Mr Soto that his performance as manager was below Mr Mitchell’s and the Company’s standards. He handed a document to Mr Soto and asked him to read it. The document was in the following terms:
“TO:JUAN SOTO - MANAGER
FROM:BRIEN MITCHELL - RETAIL GROUP MANAGER
RE:2ND WRITTEN WARNING
DATE:23RD JANUARY 1996
On the 31st of October 1995 Juan you were issued with a first written warning that dealt with the following issues:
·Non-attendance and participation at company management training sessions.
·Conducting a second job during the hours you were managing your store.
·Taking your RDO’s at non-quiet times of the next week and;
·Poor attitude to you (sic) job.
In reviewing the above I am concerned that there has been no improvement in the final two points raised in the first written warning. These together with the areas of concern I have raised with you both verbally and in writing (refer you (sic) managers benchmark of 8th November 1995) have been ignored and no effort to improve your performance seems to have been made.
In particular the areas from your Managers benchmark still to be actioned are:
·Spending more time on the floor working with your team of people.
·Fortnightly discussions with Michael Wright regarding his performance and development.
·Recording and monitoring NPA files (Currently are not being maintained correctly).
·No staff appraisals have been conducted.
·Company diary has been explained to the staff at a training session but there was no follow up. The diary is still not being used daily as required in the company standards.
·Increasing your time on the shop floor.
·RDO’s being posted to ensure you are working few Sundays, which is placing Michael and Clare in charge of the store on potentially busy trading days.
These areas although previously discussed have not improved.
Whilst visiting the store on Thursday and Friday of last week the following areas were found to be below the company standard. These areas as listed below are the basics of managing a store and non-performance in these areas is not acceptable:
·A second warning given to Clare for many areas of poor performance and not followed up or goals set.
·Poor communication skills shown by lack of direction to staff and not following up your instructions.
·The following administrative tasks have been neglected:
1.Stock moves not being completed within the accepted time-frame.
2.Odds and complaints not being returned to the Distribution Centre.
3.Store Notices not filed or actioned.
4.Price Changes not actioned.
5.Training Feedback sheets have not been completed.
6.Poor Organisation of whole Administration area.
·Whilst taking 5 days off work, no formal instructions or directions were given to Michael Wright on what should be done in your absence.
These are basic elements of running a retail store Juan and subsequently non-performance in these areas can only lead to your store not running efficiently or effectively. I believe Juan that not meeting the company standards is reflected in your store turnover. I have raised these issues with you on numerous occasions however little or no improvement has been shown.
Please find below key areas in which I hope to see improvement within 1 month. If there is no improvement in your performance Juan, you will be issued with a third warning which may result in the termination of your employment. Please indicate to me any areas where you feel Cecil Bros can assist you with training or information. If there are reasons for your poor performance please raise them with myself.
AREAS TO BE IMPROVED
1.Get organised - File all store notices and organise your administration area. Introduce systems and train your staff to ensure an efficient and effective administration system.
2.Create a better balance between planning time and productive time by structuring your day better.
3.Follow - Up on all tasks and duties given to staff.
4.Get involved with daily tasks (ie: promotions) roll up your sleeves and help your team. This will help you gain respect and confidence from your people.
5.Ensure your staff training is constructive and recorded properly. Follow up your staff training on the shop floor.
6.Develop team goals monthly for each department - this will provide direction for your team.
7.Ensure the majority of your time is spent on the shop floor.
I will assess these goals in one month.”
The document made provision for the signatures of Mr Mitchell, Mr Soto and an additional witness. Mr Soto refused to sign the document, saying he didn’t agree with it.
Mr Soto asserted that Mr Mitchell did not have any problems with his performance when Mr Soto last saw him. Mr Mitchell denied this, asserting Mr Soto’s performance was well below standard, and explaining that he had tried to be positive because he wanted to motivate Mr Soto to improve. Mr Mitchell explained that when he went down to the store when Mr Soto was away he talked to the staff, scratched the surface and found many faults. Mr Soto said that the last time they spoke Mr Mitchell had said he had improved, so that Mr Soto thought he was back on track. Mr Mitchell disagreed. Mr Soto said he had thought he was going in the right direction.
Mr Soto asserted that his performance figures were satisfactory. This was denied during the interview, though it was conceded at the hearing.
Mr Mitchell indicated his wish to go through the warning point by point to discuss it. Mr Soto refused to do so without a witness present on his behalf. Mr Soto said that he felt threatened and was concerned that what ever he said would be misinterpreted. He expressed the view that things wouldn’t change and in a few weeks he would be getting a third warning.
Mr Mitchell denied they were there to threaten Mr Soto. He contended that they were trying to work with Mr Soto, and they were not there to terminate his employment. Mr Mitchell pointed out that one of the areas listed for improvement was Mr Soto’s communication skills. Mr Soto’s behaviour was a perfect example of not communicating well.
Mr Mitchell expressed the view that Mr Soto was not up to managing the Fremantle shop. He advised that he would like Mr Soto to take “a new challenge” in Maddington. He explained they would go to Maddington together the next day, and work together on the areas listed for improvement in the morning, with a full performance review in a month’s time. Mr Mitchell explained that there would be no reduction in pay or conditions, and said that they were not penalising Mr Soto. Mr Mitchell said he was available to assist and would do anything to get Mr Soto back on track. However, Mr Mitchell warned that if Mr Soto continued to not meet the standards, Mr Mitchell would terminate his employment. The meeting then ended at about 9.50am.
In his evidence, Mr Soto disputed many of the matters documented in the Second Warning. Without dealing with them exhaustively, I accept the validity of many of the matters Mr Soto raised. I am satisfied, for example, that Mr Soto’s scheduling of R.D.O.’s was defensible, and that it compared favourably to that of his successor as manager of the Fremantle store. Mr Mitchell, in relying on staff complaints and occasional rosters, was not aware that Mr Soto was working the large majority of Saturdays as well as almost every other Sunday.
It seems there were some remaining problems, however. A point by point discussion would have benefited both parties. Mr Mitchell concedes that in retrospect it would have been better to have allowed Mr Soto a witness when he requested one. Perhaps the discussion could then have taken place.
As he intimated during the meeting, Mr Soto was afraid the next step would be his dismissal. At 10:00 am that morning, Mr Soto rang the Shop Distributive and Allied Employees’ Association of Western Australia (S.D.A.) and asked them to enrol him as a member. Some of the other store managers were members of the union. He was told the relevant area organiser would ring him back shortly. When he had heard nothing further that day, Mr Soto visited the S.D.A. office that afternoon. He spoke to an S.D.A. official who said Mr Soto could not enrol to join the S.D.A. As a result of his conversation with the S.D.A. official, Mr Soto formed the belief that the S.D.A. would not enrol managers because of an enterprise bargaining agreement they had negotiated with the Company, which had resulted in a new good relationship with the Company after a long period of difficult relations. I make no finding as to whether Mr Soto’s belief was correct. I note the alternative explanation suggested by Mrs Daniels that the S.D.A. may have been prepared to allow members such as she who had joined before they became managers to retain their membership on promotion, but would not allow those who were already managers to join.
When Mr Soto objected to his exclusion, the official agreed to have the matter checked.
Mr Mitchell met Mr Soto the next day, Wednesday 24 January 1996, at Maddington as arranged. They met outside the store. When Mr Mitchell asked why Mr Soto was not in the store, Mr Soto explained he was going to buy a dictaphone so that he could have a record of their conversation. Mr Mitchell suggested that it was inappropriate, but waited for Mr Soto to return. On Mr Soto’s return, they discussed the Maddington store and what was required of Mr Soto for about half an hour. Mr Soto taped the conversation, which was, understandably, quite strained. Mr Mitchell formed the view that Mr Soto displayed a very negative attitude to the task at hand. Eventually, they agreed to take a break outside the store to have a cigarette. Mr Soto turned off the dictaphone. In the course of the break, Mr Mitchell asked Mr Soto, if he wasn’t happy with the Company, why didn’t he leave?
Mr Soto went through a check-list relating to the store transfer, and noted many areas in which the store was poor or missing things. The previous Manager of the Maddington store had been promoted to manage the Rockingham store. When Mr Soto asked Mr Mitchell to sign the checklist to verify the shortcomings he was inheriting, Mr Mitchell declined to do so, on the grounds of lack of time. This led Mr Soto to worry that he would be unfairly blamed for the identified shortcomings.
On his return to head office, Mr Mitchell drafted a letter to Mr Soto concerning the recording of their conversation in the following terms:
“January 25th 1996
Juan Soto
Manager
Betts and Betts Maddington
Re: Use of Dictaphone to record conversations with Retail Group Manager.
Dear Juan,
I am writing in response to your purchase and subsequent use of a Dictaphone to record our meetings. I understand your desire to have a true and correct record of our discussions however I feel the use of a Dictaphone is not in keeping with the spirit of good employer and employee relations.
The critical reason for having our discussion is to agree on a plan of action and set time frames. It is not to go over every word spoken and I would feel more comfortable that we revert to summarising our meetings at their conclusion with a subsequent action list. If the use of the Dictaphone continues however, can you please provide me with a copy of each taped conversation for my records.
Tape recording of any confidential information pertaining to the operation of the business is in breach of company policy. The company is entitled to feel confident that the distribution and use of this information is undertaken with complete confidentially and integrity, please ensure that this directive is followed.
Please let me reiterate that I feel the use of a Dictaphone is not in the best interest of good employer and employee relations and I would welcome the opportunity to work with you to build a productive open and honest relationship.
Your sincerely,
(signed)
Brien Mitchell
Retail Group Manager”
In my view the letter is very reasonably worded, and displays a perhaps unusual level of tolerance in the circumstances. Nevertheless, Mr Soto regarded it as a further example of Company harassment.
On 29 January 1996, the S.D.A. accepted Mr Soto’s enrolment. However, Mr Soto assumed that they did so only to avoid bad publicity among the other managers. After seeking advice from an organiser about the Company’s treatment of him, he was left with the belief that they would not help him.
Mr Soto had also been led to believe that the then Secretary of the S.D.A., Mr Mark Bishop, had given evidence for the Company in the Gilmore case.
Mr Peter Breckler wrote to Mr Soto following the second warning meeting. His letter was in the following terms:
“January 29th 1996
Juan Soto
Manager
Betts and Betts Maddington
Dear Juan,
I am writing to express my concern at your attitude towards the discussion that took place on Tuesday the 23rd of January 1996 in regard to your performance and at which you were given a warning. I appreciate that you were upset at the nature of the meeting however I am sure you will agree that you are well versed in the company procedure for disciplining employees. Therefore it is disappointing that you chose not to discuss any of the issues that arose or to suggest any proactive (sic) steps that could be taken to rectify the situation.
My only concern is that your performance improves to the standard that I know you are capable of. Therefore I would like to reiterate the comments made at Tuesdays discussion that the company would like to assist you in meeting the goals set for you by Brien Mitchell.
I am available to assist you, please do not hesitate to call me on 422 - 1422. I know that Brien and I are looking forward to your comments and approach to the matters raised.
Yours sincerely,
(signed)
Peter Breckler
State Manager - Western Australia”
On 30 January 1996, the W.A. Industrial Relations Commission handed down its decision in Mr Gilmore’s case: Gilmore v Cecil Bros (1996) 76 WAIG 1184. The Commission held that Mr Gilmore had not proved his claim that his dismissal was linked to the family dispute, and accepted the Group’s explanation that Mr Gilmore’s position was made redundant as a cost cutting measure. It was nevertheless held that Mr Gilmore’s dismissal was harsh, oppressive or unfair for other reasons. Reinstatement was considered impracticable, and Mr Gilmore was awarded compensation of an amount equal to two months’ wages.
Within a few nights of the decision being handed down, Mr Soto and his wife went out to dinner with Mr Gilmore, his wife and another couple.
By this time, Mr Soto had reached the view that the company was determined to dismiss him. He had further reached the view he could expect no assistance in that event from his union. He learnt from Mr Gilmore that Mr Gilmore’s legal expenses had been significant in bringing an unlawful dismissal claim, which had not resulted in Mr Gilmore’s reinstatement.
Mr Soto says he felt he had very few options left to him. He could either remain in employment with the Company, where he believed he would be dismissed within days and forced to lodge an unfair dismissal claim with few resources and a financially powerful opponent. He decided that the only chance to protect his future was by resigning. Thus on Wednesday 7 February 1996, he tendered his letter of resignation.
The respondent contends that, when one considers the circumstances up to and including 7 February 1996 set out above, there was no termination at the initiative of the employer. However, Mr Soto points to additional evidence of events either occurring after 7 February 1996 or of which he only became aware of after 7 February 1996, which nevertheless suggest that his belief at that time that the company was determined to bring about his departure from the company was correct.
Mr Soto was advised within two days that his resignation had been accepted. There was no attempt to talk Mr Soto out of his decision.
Mr Soto had lunch with Brian Mitchell on 16 February 1996 at Maddington. Mr Mitchell expressed satisfaction with Mr Soto’s recent performance as manager. He expressed regret that Mr Soto was leaving. Mr Mitchell had been of the view that Mr Soto’s performance had significantly improved in Maddington, and he had been surprised to receive his resignation at that time.
Mr Soto spoke freely. He told Mr Mitchell of his belief that the only reason for his demotion and the warnings was the fact that he had given evidence in the Gilmore case. Mr Mitchell did not contradict Mr Soto; he could see no point in arguing given that Mr Soto had resigned.
The Company organised a boat cruise as a morale booster for the Managers. Invitations were distributed on 25 February 1996 for the cruise. The cruise was to take place on Wednesday 28 February 1996, which was two days before Mr Soto left the Company. Numbers were limited and the invitation list was drawn up by Mr Mitchell and Mr Breckler. They decided to exclude Mr Soto, on the basis that the focus of the boat cruise was the future and Mr Soto was leaving the Company. I do not accept that this alone explained the decision to exclude Mr Soto, who was the only manager intentionally excluded from the cruise. Such a cruise might have served as an opportunity for an acknowledgment of Mr Soto’s past service to the Company, as is not unusual when staff leave any organisation. It was conceded by Mr Mitchell that they were by then aware that Mr Soto felt embittered against the Company. It was that awareness which led to Mr Soto’s exclusion from what was conceived of as a morale boosting occasion. However, while Mr Soto’s exclusion may have arisen from his reaction to the events leading up to his resignation, it does not necessarily suggest that the warnings and demotion which led to the bitterness were improperly motivated.
Mr Soto received good references from Mr Hall, Mr Mitchell and Mr Boskell. Mr Hall stood by the reference he had given, in which he said he was always impressed by the way Mr Soto handled his store administration, and that Mr Soto was honest, trustworthy, energetic and a valuable asset to any business. Mr Mitchell, who in his reference described Mr Soto as “a diligent manager with a keen sense of retail acumen”, was more equivocal as to its accuracy. He explained that the reference was given with the intention of maximising Mr Soto’s chances of finding new employment. Mr Boskell, who spoke in his reference of Mr Soto having “provided the company with a sound management performance” also explained in his evidence that, while his reference was true, as far as it went, he might add to it if an employer called him about it.
Given recent authorities in this Court concerning references, the Company may have faced some difficulty establishing a valid reason for dismissal in the light of these references.
For the purposes of the immediate issue, it seems clear that representatives of the Company were ready, where an employee chose to resign, to give the employee favourable references concerning his performance which did not accurately reflect the view of the employee’s performance that had previously been communicated to the employee. This tends to supports the validity of Mr Soto’s assessment of the options before him.
After his resignation, Mr Soto became aware of various incidents experienced by the other manager who gave evidence for Mr Gilmore, Ms Claire Daniels.
Mrs Daniels was manager of the Morley store. She told of being met by her R.G.M., Mr Brennan, when he next visited the shop after she gave evidence, with the greeting - “Hi, how’s the lady with balls?” In response to her look of shock, he said by way of explanation, “You went to Court for Coby (meaning Jacob Gilmore)”.
Mrs Daniels also had an unexplained visit at the Morley store from an employee with whom she was friendly who worked in the Company’s pay office, at head office, Mrs Yvonne Pollard. In the course of a cup of tea, the subject of Mr Gilmore came up. Mrs Pollard said to Mrs Daniels, “Be careful, Claire”. Mrs Daniels did not ask what she meant.
She told of another occasion when her store was visited in the course of one day by Mr Hall, to do a random and infrequent administration check, by Mr Colin Pace, who performs the Company’s security checks and then her R.G.M., Mr Brennan. Having heard evidence as to the scheduling of such visits and given Mr Hall’s credibility, I am satisfied that this was a mere coincidence, though Mrs Daniels was understandably concerned that the Company might be trying to put her under pressure.
The only other matter Mrs Daniels raised was Mr Brennan’s tendency to cause displays in her shop to be rearranged for apparently frivolous reasons, and seemingly with the intent of just upsetting her. It would seem odd that an R.G.M.; would behave as Mrs Daniels has described, but it does not lend much support to any contention that Mrs Daniels is being systematically victimised.
Mrs Daniels indicated that she has not suffered any adverse effects on her career with the Company since giving evidence. She has not been promoted, but she would not have expected to be in any event.
The Court also heard evidence from Mr Neil Davies, another store manager who had Mr Mitchell as his R.G.M. Mr Davies gave evidence of a conversation during which he and Mr Mitchell were discussing how to address perceived deficiencies in the performance of one of the employees in Mr Davies’ store. Mr Davies gave evidence that Mr Mitchell advised Mr Davies to “get rid of her”. Mr Davies says that when he replied that he couldn’t just get rid of her, Mr Mitchell responded that “I got rid of Juan. You can get rid of anyone if you set your mind to it”.
Mr Mitchell denies that this conversation took place. I accept that some such conversation occurred. However, Mr Mitchell was speaking after the event. Warnings had been issued to Mr Soto addressing perceived deficiencies in his performance. Mr Soto then resigned. That Mr Mitchell may have claimed the “credit” for that result in conversation with one of his managers is perhaps not admirable. It does not necessarily mean that it was Mr Mitchell’s intention at the time to procure Mr Soto’s resignation.
Conclusion
In Mohazab v Dick Smith Electronics Pty Ltd (No 2) (1995) 62 IR 200 at 205, the Full Court held that the expression “termination at the initiative of the employer” refers to “a termination that is brought about by the employer and which is not agreed to by the employee”.
Mr Soto submits that in the circumstances of this case the employer, by putting in train a process by which Mr Soto received two warnings and a transfer to a position of less status and responsibility, brought about Mr Soto’s termination by making Mr Soto feel that he had no option but to resign.
I do not accept that submission. Mr Soto decided that it was in his best interests to resign. As I observed in Dalgleish v Fugro Survey Pty Ltd (unreported, IRCA, R.D. Farrell J.R., 8 August 1996, No. 357 of 1996) the Court should, in my view, be slow to relieve parties of the consequences of such decisions.
Mr Soto was not faced with any explicit ultimatum to the effect that he faced dismissal if he did not resign. Nor was there unambiguous conduct on the part of the Company to indicate that it inevitably intended to bring about the termination of his employment. Mr Soto relied upon his own assessment of the situation. While there is admittedly a troubling coincidence of circumstantial evidence, I am not satisfied that it is more probable than not that the Company was motivated in its actions by an intention to bring about the termination of Mr Soto’s employment. I therefore find, on balance, that his assessment was incorrect.
Mr Soto’s belief was that the Company intended to dismiss him because of the fact of his having given evidence for Mr Gilmore. The evidence did not support that belief. The first warning was administered before it was known he was giving evidence. There was no evidence that anyone at the Company’s head office knew of Mr Soto’s meeting with Mr Gilmore other than Mr Hall, and it seems clear that Mr Hall placed no significance on it. The first warning could be adequately explained for other reasons, namely, Mr Breckler’s concern that Mr Soto not conduct another business on the Company’s time. The other matters raised were probably not considered significant enough in themselves to justify a warning.
It would appear that the family dispute, of which the Gilmore case was perceived to be a manifestation, was a matter of fascination among the middle management of the Company. I accept that Mr Soto and Mrs Daniels having given evidence for Mr Gilmore may have been perceived by the likes of Mr Mitchell, Ms Pollard and Mr Brennan as courageous, or indeed foolhardy. This is evidence only of their speculation as to what senior management’s reaction might be. It is no indication of any actual reaction by the Company’s management. Similarly, Mr Mitchell’s continued interest in the progress of the Gilmore case is understandable in terms of Company gossip, and does not require an explanation premised on his conducting some sort of fact-finding exercise for his superiors, as Mr Soto supposed.
Finally, the second warning and transfer can be understood without reference to some ulterior motive on the part of the Company. Mr Mitchell was frustrated by perceived shortcomings in Mr Soto’s performance, and perhaps more fundamentally, with Mr Soto’s attitude”. It is apparent that Mr Mitchell was concerned less about Mr Soto’s shortcomings than he was about Mr Soto’s failure to acknowledge and address those shortcomings. It may have been this, more than anything else, that distinguished Mr Soto from other store managers. I also accept that there was some dissatisfaction made known to Mr Mitchell by members of Mr Soto’s staff. The transfer was intended, in Mr Mitchell’s words, to be “shock treatment”.
The later letters from Mr Mitchell and Mr Breckler were understandable and not unreasonable responses to Mr Soto’s behaviour during the “Second Warning” meeting and the first visit at the Maddington store.
The warning process therefore started without reference to the Gilmore case, and it’s continuation does not require reference to any ulterior motive for explanation. Mr Soto has not satisfied me that Mr Breckler or Mr Mitchell were determined to bring about the termination of his employment, whether because of his role in the Gilmore case, or for any other reason.
The work history of Mr Neil Davies provides an interesting comparison with this case. Mr Davies had eighteen months off work due to a back injury. On his return, following an unpleasant encounter with Mr Peter Breckler, Mr Davies formed the impression that the Company was out to get rid of him. He gave evidence of a number of incidents which lent some support for that proposition. Mr Davies weathered the storm. Some three years later he is still a store manager with the Company. After some later personal difficulties in his dealings with Mr Mitchell, he was allocated to another R.G.M. Had he resigned soon after he returned to work he would have been in a similar position to Mr Soto. Instead, he didn’t resign and the Company didn’t dismiss him.
Had Mr Soto been dismissed for poor performance then it is likely that the Company would have faced difficulties in establishing a valid reason for dismissal, at least in the absence of a marked deterioration in Mr Soto’s performance. That would often be the case in circumstances where employers choose to issue warnings rather than to terminate. An employee may sometimes genuinely believe that his or her employer has administered a warning or warnings as a preliminary step toward the employee’s inevitable dismissal. He or she may sometimes be correct in that belief. However, if that were enough to constitute the bringing about by the employer of a termination for the purposes of the Mohazab test, then employers would embark upon the counselling of their employees at their peril, because their employees might at any time precipitate a premature, and consequently invalid, termination. Such a result cannot be correct.
Accordingly, I find that Mr Soto’s resignation is not a termination at the initiative of the employer. I therefore uphold counsel for the respondent’s no case to answer submission, and dismiss the application.
I certify that this and the preceding 33 pages
are a true copy of the reasons for decision of
Judicial Registrar R.D. Farrell.Associate:
Dated: 28 October 1996APPEARANCES
The applicant represented himself.
Counsel appearing for the respondent: Mr P. Nisbet
Mr A.J. Smetana
Representatives for the respondent: Chamber of Commerce & Industry of WA (Inc)
Dates of Hearing: 14, 15, 16, 17 & 18 October 1996
Date of Judgment: 28 October 1996
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