Steven Drakakis v Care Commercial Building Solutions T/A Care Height Safety

[2014] FWC 7191

[2014] FWC 7191

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Steven Drakakis
v
Care Commercial Building Solutions T/A Care Height Safety
(U2014/7678)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 29 OCTOBER 2014

Application for relief from unfair dismissal - alleged constructive termination - employee resigned then continued to work for the employer for 3 months.

[1] On 30 May 2014 Mr Steven Drakakis made an application under section 394 of the Fair Work Act 2009 (‘the Act’) for an unfair dismissal remedy with respect to the termination of his employment on 15 May 2014.

[2] On 1 July 2014 the employer lodged a jurisdictional objection claiming that Mr.Drakakis resigned on 7 February 2014 and was not dismissed.

[3] This decision raises again the interesting question of whether or not an employee has been dismissed. Section 385 provides that a person must be ‘dismissed’ for there to be an unfair dismissal (s.385(a)). Section 386 defines dismissal as including circumstances where an employee resigned but was ‘forced to do so because of conduct, or a course of conduct, engaged in by his or her employer’ (s.386(1)(b)). A ‘demotion’ may also be a dismissal. A demotion is not a dismissal if it does not involve a significant reduction in his or her remuneration or duties (s.386(2)(c)) 1.

[4] In this case Mr.Drakakis considers that he was dismissed because he was appointed as a production manager in April 2013, and then in November 2013 another person took over some or all of his duties, and he undertook other duties 2. He was told in April 2013 that someone else might be brought in as his assistant, or that he would be the assistant3, and in November 2013 this is what happened. He also claims that he was dismissed on 15 May 2014 when he ceased one of the short term jobs the employer gave him to tide him over the job search period4. He had asked the employer in his resignation letter of 7 February 2014 to nominate a day ‘on which I can finish up on’5. He accepted the new work, and continued to accept the benefits of the work, the pay and conditions for 6 months after the change in November 2013 which he says forced his resignation.

[5] The following witnesses gave evidence:

● Mr Steven Drakakis
● Mr William Feltham
● Ms Tracey Van Hooydonk

[6] I have had regard to the evidence and submissions. I had the opportunity to observe the witnesses giving evidence and prefer the evidence given by Mr.Feltham and Ms.Van Hooydonk to that given by Mr.Drakakis.

Authorities

[7] I have had regard to authorities including Mohazab v. Dick Smith Electrical 6, Pawel v. G4S Custodial Service Pty Ltd7, O’Meara v. Stanley Workers Pty Ltd8, and other authorities.

The Sequence of Events

[8] In this matter Mr.Drakakis was employed with the employer on 21 January 2013 as a casual labourer. On 22 April 2013 Mr.Drakakis commenced work in a production manager position 9. The employer became unhappy with the manner in which Mr.Drakakis was performing his work, but maintained his salary.

[9] On 15 July 2013 Mr.McClelland was appointed to assist in the Production Department. Mr.McClelland had experience and Mr.Feltham said that he ‘did not demote Mr.Drakakis’ 10, although Mr.McClelland ‘would take the lead role in the Production Department because he was more experienced and qualified’11. Mr.Feltham gave Mr.Drakakis detailed instructions about how to conduct inspections working on a new DEECD Project12.

[10] On 7 February 2014 Mr.Drakakis sent an email in which he said:

‘Because of the uncertainty/changing of my role within the company, I am handing in my notice of resignation. I think this would be best given the connection that I have with the Feltham family..... Tracey can you please let me know what day I can finish up on.’ 13

[11] Mr.Drakakis’s employment did not immediately end but instead he undertook a series of short term jobs for the company, arranged by Mr.Feltham in an effort to assist Mr.Drakakis 14. Mr.Feltham left Mr.Drakakis with a long period in which to arrange his departure and alternative employment.

[12] On 29 April 2014 Mr.Drakakis sent an email to Ms.Van Hooydonk asking to talk about payments for overtime hours which he considered were owed to him and stating that ‘Because Bill has removed me from that position and is not willing to leave me in a similar role I really don’t have a choice but to leave the company’ 15.

[13] On 14 May 2014 Mr.Drakakis met with Ms.Van Hooydonk who told him that his contract required him to work reasonable additional hours, as per his employment contract 16. The employment contract was attached to her witness statement and provided in clause 3.1 that:

‘Your ordinary hours of work will be 38 per week, plus any reasonable additional hours that are necessary to fulfil your duties or as otherwise required by the employer’ 17.

[14] I accept Ms.Van Hooydonk’s explanation that the original signed contract was lost from their records because of a computer virus 18. I accept that this is the contract.

[15] I accept Ms.Van Hooydonk’s evidence she had a discussion with Mr.Drakakis on 14 May 2014, and it was her understanding that ‘Mr.Drakakis would be finishing once his claim to overtime was resolved or in two weeks’ 19.

[16] On 15 May 2014 Mr.Money wrote to Mr.Drakakis stating that his claim for overtime was rejected and explaining why, and that his resignation dated 7 February 2014 ‘will take immediate effect and your last day of employment with Care Commercial Building Solutions Pty Ltd will be today, 15 May 2014’ 20.

Decision

[17] Mr.Drakakis variously claimed that he was forced to resign because of conduct of his employer before 7 February 2014 and after. For a while he says he was ‘still doing 90% of the work ... I still seemed to have all the responsibility and was working 10 to 12 hours days most of the time plus weekends because it was still me doing most I [of] the work on my own.’ 21 Later in November Mr.Drakakis commenced work ‘into a role conducting inspections out on site full time for the company’22. He claims that he told Mr.Feltham he was not happy doing the inspections, while Mr.Feltham told him he needed multi-skilled employees23.

[18] I prefer the evidence given by Mr.Feltham about this period, including about the allocation of desks. Mr.Drakakis’ evidence was somewhat unreliable at best. For example, Mr.Drakakis claims that an expression of interest for an ‘administration assistant’ which he found under a note pad on a desk meant that the employer ‘had been conducting interviews for my position while I was out inspecting the Victoria university jobs.’ 24 However, the position appears to have had nothing to do with his position. Ms.Van Hooydonk gave evidence, which I accept, that a Purchasing/Production Administration Assistant position was advertised by her on 31 October 2013, to assist the Production Department in Administration, organising documentation to be sent out to clients, ordering and despatching goods, and receptionist duties. The position was not filled25. Mr.Drakakis’s claims do not appear to be well founded.

[19] I also have some concerns about such a letter being accessed by Mr.Drakakis without him having due authority for doing so, as well as him copying it without due authority, and then tendering it, despite the need for the person concerned to have her privacy respected. Similarly, as discussed below Mr.Drakakis refused to accept the quite reasonable explanation given by his employer for not paying overtime rates. Ms.Scott for the employer pointed out a number of other difficulties with the evidence given by Mr.Drakakis 26.

[20] Firstly, Mr.Drakakis gave evidence that he was told within the first week of starting in the production managers position that another person might be hired who would assist Mr.Drakakis or that Mr.Drakakis ‘would assist the new staff member depending on the qualifications of the person he could find at the time’ 27. Mr.Feltham gave the same evidence28. In those circumstances it is difficult to sustain a claim that Mr.Drakakis was forced to resign because of a change he was told at the start might occur and then did occur. Mr.Drakakis knew at the start or almost immediately that there might be a change of this kind, that the duties were to some degree provisional, and accepted this and worked in the job on that basis. There is some debate about his title but the better view may be that he was appointed a production manager29. Mr.Drakakis himself refers to it as ‘production manager/assistant manager’ in one of his emails30, and as assistant production manager during one of his submissions31. The letter of appointment refers to him as a production manager32, which does not prevent the future appointment of another production manager. In any event the job he was appointed to was somewhat provisional, and if his later title was assistant production manager that is not inconsistent with what he was told in his first week of work.

[21] Secondly, in any event, Mr.Feltham gave evidence that Mr.Drakakis had not shown any discontent about his position, did not raise any concerns, but had ‘always agreed to the changes’. He was therefore surprised by his resignation of 7 February 2014 33. I prefer the evidence of Mr.Feltham to contrary evidence given by Mr.Drakakis.

[22] Thirdly, there is nothing in the termination laws which prevent an employer adjusting the roles of employees so that work is performed efficiently and productively, provided that there is no demotion. The changes were within the scope of his existing contract of employment, which provided that:

‘You will be required to perform duties the employer assigns to you, having regard to your skills, training and experience.’ 34

[23] Fourthly, I also note the substantial lapse of time between the alleged demotion in November 2013 and the resignation on 7 February 2014, and then the time that the resignation took effect on 15 May 2014, which was 6 months later. Mr.Drakakis may have stayed longer or even conceivably indefinitely. It was not until the employer asked when the resignation would take effect that Mr.Drakakis’s employment eventually came to an end. Mr.Drakakis was willing to take advantage of various work offers made by the employer for 3 months after his resignation. Mr.Drakakis was dissatisfied, but showed by his conduct that he was not ‘forced to resign’ but was in fact willing to continue to work for an extended period because of the benefits work provided. There is a point at which an employee can no longer reasonably claim that he was forced to resign, otherwise an employee could simply ‘bank’ conduct in the past and then act on it when he considers it advantageous. It is difficult to sustain an argument that a resignation in February 2014 was caused by an event in November 2013, when Mr.Drakakis had accepted the work and had engaged in that work since that time.

[24] Fifth, Mr.Drakakis’ email resignation of 7 February 2014 specifically provided for the company, Ms.Van Hooydonk, to ‘let him know when I can finish up’. He did not specify a specific date but left it to his employer. His employer was considerate in letting him continue to work, including offering what Mr.Feltham described as ‘short term’ pieces of work conducting inspections 35, for over 3 months after his resignation. Eventually the employer did what Mr.Drakakis asked for in his resignation email of 7 February 2014 and let him know when he could finish up, namely on a new date they fixed of 15 May 2014. This is not inconsistent with the ‘short term’ jobs, which were on the evidence informal arrangements to assist Mr.Drakakis to seek other work, and having regard to Ms.Hooydonk’s evidence that Mr.Drakakis might finish once his overtime claim was resolved. Mr.Drakakis gave similar evidence that Mr.Feltham told him that ‘if you find something tomorrow you can finish tomorrow just complete any work you might be in the middle of’36. The fact that jobs had not been completed is not determinative. Even on his own evidence Mr.Drakakis was well aware that his short term jobs were informal arrangements which could end immediately, and in fact this is what occurred.

[25] Finally, rather than forcing Mr.Drakakis to resign the employer behaved in a considerate manner. Mr.Feltham gave evidence which I accept that he spoke to Mr.Drakakis, asked him if he had found another job, asked him how he was going to manage financially, offered him a desk to base himself from, offered him time off to attend interviews, arranged short term jobs so he would not suffer ‘financial hardship’, told him he could come to site from home rather than the office to ‘make things easier for him’, again offered him a second set of short term work, expressed his approval of a ‘thorough job and I was happy with his quality of work’, had friendly discussions in which he asked how the job hunt was going and offered ‘to make a few calls’ to help him 37. Mr.Drakakis gave similar evidence that Mr.Feltham told him they would support him in looking for other work, and that he knew a lot of people and could ask around for work for him38.

[26] Instead of accepting this considerate conduct for what it was, Mr.Drakakis began agitating for payment of overtime which he considered was owed to him. He did not accept Ms.Van Hooydonk’s quite reasonable explanation that his contract provided for him to perform extra work without overtime. He had developed a ‘bitter’ attitude to Mr.Feltham 39. He was previously unable to explain how he had downloaded a computer virus which cost the company ‘an enormous amount of time and money’ because it destroyed all the company files40.

[27] In conclusion, the action taken by the employer in November 2013 and on other dates was not a demotion but a change that Mr.Drakakis was well aware might occur, and he worked from April 2013 on that basis. Rather than being forced to resign within s.386(1)(b) he continued to work for the employer for a lengthy period after November 2013, and took the benefits of employment with the employer. He continued to receive the same monetary entitlements, probably had the same title 41, and continued to perform significant duties although of a somewhat different nature more suitable to his skills and experience.

[28] There was no significant reduction in Mr.Drakakis’s remuneration or duties within s.386(2)(c). Even if there was a reduction in some way it was not a significant reduction. There was no dismissal overall within s.386.

[29] Mr.Drakakis was not dismissed within ss.385-386 of the Act. I am therefore required to dismiss his application. An order to that effect is contained in PR556798.

DEPUTY PRESIDENT

Appearances:

Mr S Drakakis, the applicant

Ms S Scott for the respondent

Hearing details:

2014

Melbourne

10 October

Appendix 1

Division 3—What is an unfair dismissal

381 Object of this Part

(1) The object of this Part is:

(a) to establish a framework for dealing with unfair dismissal that balances:

(i) the needs of business (including small business); and

(ii) the needs of employees; and

(b) to establish procedures for dealing with unfair dismissal that:

(i) are quick, flexible and informal; and

(ii) address the needs of employers and employees; and

(c) to provide remedies if a dismissal is found to be unfair, with an emphasis on reinstatement.

(2) The procedures and remedies referred to in paragraphs (1)(b) and (c), and the manner of deciding on and working out such remedies, are intended to ensure that a “fair go all round” is accorded to both the employer and employee concerned.

Note: The expression “fair go all round” was used by Sheldon J in in re Loty and Holloway v Australian Workers’ Union [1971] AR (NSW) 95.

385 What is an unfair dismissal

A person has been unfairly dismissed if the FWC is satisfied that:

(a) the person has been dismissed; and

(b) the dismissal was harsh, unjust or unreasonable; and

(c) the dismissal was not consistent with the Small Business Fair Dismissal Code; and

(d) the dismissal was not a case of genuine redundancy.

Note: For the definition of consistent with the Small Business Fair Dismissal Code: see section 388.

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.

(2) However, a person has not been dismissed if:

(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or

(b) the person was an employee:

(i) to whom a training arrangement applied; and

(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;

and the employment has terminated at the end of the training arrangement; or

(c) the person was demoted in employment but:

(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and

(ii) he or she remains employed with the employer that effected the demotion.

(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.

 1   The sections are set out in Appendix 1

 2   PN911

 3   Exhibit D1, paragraph 7

 4   PN997

 5   Exhibit C3, Attachment H

 6 (1995) 62 IR 200 at 206

 7   Print S5904

 8   (2006) 58 AILR 100

 9   Exhibit C3, paragraph 11

 10   Exhibit C3, paragraph 29

 11   Exhibit C3, paragraph 31

 12   Exhibit C3, paragraph 36, 44

 13   Exhibit C3, Attachment H

 14   Exhibit C3, paragraphs 42-56

 15   Exhibit D1, p.27

 16   Exhibit C4, paragraph 21

 17   Exhibit C4, Attachment A

 18   PN756-765

 19   Form F3, paragraph 2.2; Exhibit C4, paragraph 21

 20   Exhibit D1, p.30

 21   Exhibit D1, paragraph 53

 22   Exhibit D1, paragraph 58

 23   Exhibit D1, paragraph 64

 24   Exhibit D1, paragraph 83

 25   Exhibit C4, paragraph 13

 26   Exhibit D1, paragraphs 27-28

 27   Exhibit D1, paragraph 7

 28   Exhibit C3, paragraph 14

 29   Eg. PN42, 46, 60, 584, 920-937

 30   Exhibit D1, p.27, email of 29/4/2014, Drakakis to Tracy

 31   PN942

 32   Exhibit D1, p.1, 15 April 2013 memo

 33   Exhibit C3, paragraph 42

 34   Exhibit C4, Attachment A, clause 1.3

 35   Exhibit C3, paragraphs 4851

 36   Exhibit D1, paragraph 74

 37   Exhibit C3, paragraphs 42-54

 38   Exhibit D1, paragraph 74

 39   Exhibit C3, paragraph 53

 40   Exhibit C3, paragraph 38

 41   PN58

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<Price code C, PR556499>