No judgment structure available for this case.

[2015] FWC 2898

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Tim Daly
v
Beonic Technologies Pty Ltd
(U2014/8321)

COMMISSIONER CRIBB

MELBOURNE, 28 APRIL 2015

Application for relief from unfair dismissal - jurisdiction - termination at the initiative of the employer - application dismissed.

[1] Mr Tim Daly (the Applicant) has made an application for an unfair dismissal remedy in relation to the termination of his employment by Beonic Technologies Pty Ltd (the company, the Respondent).

[2] The company has lodged a number of jurisdictional objections to the application. These are on the basis that:

“(a) The applicant voluntarily resigned and was not dismissed at the initiative of the respondent;

(b) Further or alternatively, the dismissal of the applicant was a genuine redundancy within the meaning of s.389 of the FW Act. 1

(c) Further or alternatively, there was an accord and satisfaction such that the applicant cannot now bring this claim.”

[3] I will deal with each of these objections in turn.

1. Was there a dismissal at the initiative of the employer?

[4] Central to determination of this jurisdictional objection are the events of 23 June 2014 and 24 June 2014. On 23 June 2014, Mr Daly attended a meeting with Mr Edwards and Mr Nathan in attendance. A number of things occurred during, and following, the meeting. There were two subsequent telephone calls between Mr Daly and Mr Edwards - one on 24 June 2014 and the other on 8 July 2014.

(a) Mr Daly’s evidence

(i) Saturday 21 June 2014

[5] Mr Daly gave evidence that, on Saturday 21 June 2014, when he tried to login to the IT system, he discovered that his access had been blocked. 2 It was recounted that he had tried to login quite a few times. He had also made a number of phone calls, escalating the issue to his line manager as he had work he wanted to submit.3 Mr Daly recalled that he had also phoned the developer and was told to speak to management about it on Monday.4 Mr Daly disagreed with the proposition that he had entered the wrong password on the Saturday and that that was the reason his access was blocked.5

(ii) Monday 23 June 2014

[6] It was Mr Daly’s evidence that:

At around 9.00am, he was met just outside the door and was escorted by Mr Nathan to his desk. He was told not to login and that he would be meeting with Mr Edwards. However, Mr Edwards was still meeting with Mr Hills who was subsequently escorted out of the building as he had been summarily dismissed. 6

In his witness statement, he had stated that, when he arrived at work, he had approached his manager to resolve the IT issue. 7

When questioned about the disparity between the two dot points above, he stated that when he walked into the building, he had approached/walked up to his manager and his manager had escorted him. 8

He was not told the purpose of the meeting with Mr Edwards. Based on anecdotal evidence, not being able to login and being escorted around the building, he made an assumption, prior to the meeting, about what was going to be discussed at the meeting. However, he had naively hoped that that wasn’t the purpose of the meeting and so he went to the meeting to find out. 9

Mr Edwards told him that he was to be terminated effective immediately and that his role was to be outsourced. He was then marched out. 10

He had told Mr Edwards that the redundancy was an absolute sham. He said that he would accept payment of an additional three months’ salary for a no contest resignation. He was not saying that, if he was paid three months salary, he would resign. Rather, he would walk away without the threat of any further action. 11

He had used the word “resignation” 12 and he was the first person to say the word “resignation”. He had accepted that he would resign upon payment of the amount in Mr Edwards’ letter.13

Mr Edwards had refused the offer. 14 It was stated that Mr Edwards had said that he would not pay him anything in addition to his entitlements. He confirmed that he was paid an additional amount over and above his entitlements.15

Mr Edwards had refused a no contest redundancy but had come back with the offer in his letter which was his only chance to receive his entitlements. When faced with the option of either nothing or the amount in the letter, he took the amount in the letter. 16

He had prepared a resignation letter after Mr Edwards had provided him with a statement of what he would be paid. Mr Edwards had told him what his redundancy package would be. 17

Both he and Mr Edwards went away and did their own thing. He wrote his resignation letter and Mr Edwards the letter regarding the money. 18

He read Mr Edwards’ letter before he handed over his resignation letter. 19

The “golden handshake” amount of around $8000 was not a golden handshake but bonus money that was owed to him. At the time, he did not know the specific bonus amount ($9220) and so he did not say anything to Mr Edwards during the meeting. 20

He was given a cheque for the net amount in the settlement letter. 21

He shook hands with Mr Edwards then left on really good terms. 22

Later that afternoon, he had sat down and worked out how much money he believed the company actually owed him. He should have been paid a bonus of $9220. He had not used the word “bonus” during the meeting with Mr Edwards but had used the words “entitlements at law” or “my entitlements”. He confirmed that he had signed the settlement letter. 23

It was his view that there had been a good faith verbal agreement, between himself and Ms McBride, which had been put in writing in the e-mail of 10 February 2014, at his request. 24 He understood that the agreement that he and Ms McBride had reached included Best and Less.25 In his e-mail response to Ms McBride (10 February 2014), it was said that the “satisfaction of all of his queries” related to whether or not the bonus was capped.26

He had already intended on taking action - before walking out of the building. “It was a bullshit redundancy”. 27

(iii) Tuesday 24 June 2014

[7] Mr Daly gave evidence that:

He had contacted Mr Edwards the next day because he believed that he was owed money. He believed that he had done himself out of $1200. 28

He did not tell Mr Edwards, during this conversation, that his resignation had been forced. 29

Mr Edwards advised that all of the monies owed to him had been paid, as per the settlement letter. 30

(b) Mr Edwards’ evidence

(i) Remote access on 21 June 2014

[8] Mr Edwards acknowledged that Mr Daly’s access was blocked on 21 June 2014. It was stated that the issue was investigated and it was found that Mr Daly had entered the wrong password. He confirmed that he had received an e-mail from the developer. 31

(ii) Meeting on 23 June 2014

It was an off-the-cuff meeting as it was only when he and Mr Nathan had seen Mr Daly walk past. On the previous Thursday, he and Mr Nathan had discussed talking to the project managers on the Monday. 32 Mr Nathan had gone and got Mr Daly after the meeting with Mr Hills.33

Mr Nathan was in a meeting with him at 9.00am on 23 June 2014. The meeting was with Mr Hills. They had seen Mr Daly pass the office and wave just after 9.00am. 34 Mr Hills was a contractor and the meeting was about not needing his services any further.35

He did not tell Mr Daly that he was going to be terminated immediately during the meeting. He also did not tell Mr Daly that his position was being made redundant. He said that he knows the process around redundancies. It was an open, and transparent and open book discussion. Mr Daly had immediately taken it to the next level of “I will make it easy for you, this is what I want”. 36

Mr Daly had then asked for three months’ salary. The company was not prepared for such a discussion as the meeting was not about redundancy but about the operational changes and Mr Daly’s feedback was being sought. However, Mr Daly had gone straight to resignation. 37

He did not tell Mr Daly that he would get one weeks’ redundancy payment as per the award. He did not know the applicable award. 38

The plan had been to discuss the changes with all three project managers and talk about solutions e.g. working part-time. 39

Mr Nathan had commenced the conversation by talking about why the company was changing and that the company was looking to change around the project management roles and wanted to hear Mr Daly’s thoughts. He (Mr Edwards) had then talked about options - not that the company was going to offer redundancies but that the company was reviewing everyone’s role. The company was saying that it had not made a decision. Redundancy had been talked about as one of the options together with working part-time. He didn’t get as far as talking about timeframes. 40 This was because Mr Daly put his hand up and said that he would make it easier for you. This was said to have taken them by surprise as it was no more than 5 minutes after the meeting started.41

He did not request a letter of resignation from Mr Daly. It was Mr Daly who had suggested resignation as an option. 42

No bonuses were discussed during the meeting. 43 Mr Daly had asked for three months’ salary in addition to his entitlements at law in exchange for his resignation.44

He calculated what three months salary was and told Mr Daly that he thought the amount ($26,000) was excessive. He offered Mr Daly $20,000 and Mr Daly agreed. 45 He told Mr Daly that, as there had been no intention to terminate his employment, he did not have the required paperwork prepared and that it would take some time to get it ready. Mr Daly had said that he would prepare his resignation letter whilst he (Mr Edwards) made the necessary arrangements.46

Mr Daly had not accrued any entitlement to bonuses prior to Ms McBride’s email of 10 February 2014. 47 There had been no documentation advising Mr Daly of an entitlement to a bonus. A bonus would need to be agreed between Ms McBride and the senior managers.48

The settlement letter was prepared by the Financial Controller. He (Mr Edwards) had given Mr Daly the letter and Mr Daly had read it and then Mr Daly and he had signed it. After he gave Mr Daly the cheque, Mr Daly had given him his resignation letter. 49 Neither he, nor anyone else from the company, had any involvement in drafting the resignation letter.50

The reason the meeting went for four hours was because he did not even know what the numbers were. 51

During the meeting, Mr Daly was described as being very cooperative and they had parted on very good terms. Mr Daly had even offered to come back and help staff with any loose ends etc. 52

(iii) 24 June 2014

[9] It was Mr Edwards’ evidence that:

Mr Daly rang him the next day and said that he wanted to see him. That was arranged for the afternoon. 53

Mr Daly said that he wanted more money and asked for an additional $5000 - $6000. This was said to have been a shock. 54

He told Mr Daly that the company was not prepared to pay him the additional amount. Mr Daly then said he had been in shock and not mentally present during the discussions the previous day. 55

He told Mr Daly that he would need to confer with Mr Nathan about his request. 56

On 8 July 2014, he informed Mr Daly that the company would not be paying the additional amount he had requested. 57

(c) Mr Daly’s submissions

[10] Mr Daly submitted that:

During the meeting on 23 June 2014, he was told that his employment would be terminated. 58

The only way the company could havesuccessfully managed the situation of his employment being immediately terminated would be if they had prepared for this event. 59

The only way the company could have prepared for it was for Mr Edwards or Mr Nathan to have expected or intended his employment to have been terminated prior to the meeting on 23 June 2014. 60

If the company had not expected or intended that the meeting would result in his dismissal, then there is no reason that his employment would have ended at the conclusion of the meeting. 61

If there was no intention to terminate his employment, there would be no reason to enter into negotiations about that. 62

It was confirmed that he had asked the three months salary in exchange for a resignation. The offer of three months’ salary was conditional on a release agreement being signed. 63

A colleague of his had been dismissed 20 minutes before he was and four hours before two brand-new employees to the team started. This series of events were not unfortunate coincidences or misunderstandings. Rather, they were deliberate decisions made by Mr Edwards. 64

The meeting was a premeditated termination of his employment. The redundancy reason is a sham and Mr Edwards was using it as an excuse to terminate him without cause. 65 However, he would be prepared to sign a release agreement discharging the respondent from liability in return for a payment of three months’ salary on top of monies owed.66 Mr Edwards did not agree and proposed that the termination no longer be a redundancy with a golden handshake payment instead and he was required to submit a letter of resignation. The only options available were to accept the company’s proposal and resign or refuse the offer and be terminated. He chose to resign rather than be terminated and so signed the final pay letter.67

He was forced to resign otherwise Mr Edwards would not have paid him all of the monies owed by the company. 68

[11] Mr Daly contended that, by the time he signed the letter of resignation, he had been:

In the meeting room with Mr Edwards and Mr Nathan for over four hours.

Had been told he was to be terminated.

Had not received a retraction of termination from Mr Edwards after he (Mr Daly) had highlighted the reasons that the termination would not hold up in court.

Had explored alternative arrangements with Mr Edwards.

Mr Edwards had refused to pay him his bonus unless he resigned.

Mr Nathan dictated the content of his letter of resignation.

He was still denied unsupervised access to the rest of the building and his electronic access was still blocked. 69

(d) The company’s submissions

[12] The company submitted that Mr Daly’s employment was not terminated on the Respondent’s initiative. It was contended that Mr Daly resigned from his employment and was not dismissed. The company argued that it is not a case of constructive dismissal as there was no action by the employer that was intended to bring the relationship to an end or have had that probable result. 70 It was stated that Mr Daly was not forced to resign from his employment because of conduct or a course of conduct engaged in by the company.71

[13] It was contended that, in informing Mr Daly of the potential redundancy of his role, the company did not take action which “directly and consequentially” resulted in the termination of Mr Daly’s employment. Further, the company stated that it did not take action with the intent of bringing the relationship to an end or which would have that probable result. 72 The company’s intention was said to have been to consult with Mr Daly regarding a potential redundancy and to obtain his views about this. It was argued that it was in that context that Mr Daly expressed the desire to resign from his employment, and then did so.73 In consulting with Mr Daly in respect of the potential redundancy of his role, the company did not take action that would have the probable result of leading Mr Daly to resign.74

[14] In support of these arguments, the company referred to the evidence of Mr Daly and Mr Edwards. It was contended that, during his evidence, Mr Daly confirmed that it was his own idea to submit a letter of resignation on 23 June 2014. 75 This was said to have been corroborated by the evidence of Mr Edwards.76

(e) Considerations and Conclusions

[15] In order to determine whether or not Mr Daly resigned/was forced to resign or was dismissed by the company, it is necessary to make certain findings of fact. Having considered all of the material before me I find that it is most probable that:

During the meeting on 23 June 2014, the proposed changes were explained to Mr Daly and he was advised that there were two possible options - redundancy or work part-time.

It is accepted that the purpose of the meeting was not to make Mr Daly redundant. Rather, it was to discuss the changes and to get Mr Daly’s views about the two possible options.

Mr Daly then said words to the effect that he would accept payment of three months’ salary together with his entitlements at law, for a no-contest resignation.

It is common ground that it was Mr Daly who first raised the prospect that he would resign.

The company refused the proposal regarding three months salary ($26,000) and offered $20,000 instead.

It was undisputed that this offer was accepted by Mr Daly.

Mr Daly was given a cheque together with a letter setting out the details of the final payment. In return, Mr Daly handed Mr Edwards his letter of resignation.

Both parties believe that the meeting ended on a very good note.

Later that day, Mr Daly, having worked out what he believed he was entitled to, came to the view that he should have been paid $9220 in bonuses. When the golden handshake was taken into account, he believed that he had been short-changed by the company to the tune of about $1,200.

The next day (24 June 2014), he went to see Mr Edwards and told him that he thought that the company owed him more than he had been paid. He had then asked Mr Edwards for an additional $5000 - $6000.

The company declined to pay Mr Daly the additional amount he had claimed.

[16] On the basis of the above findings, I have formed the view that in exchange for payment of three months’ salary, Mr Daly offered his resignation. This amount was not accepted by the company but the company and Mr Daly subsequently agreed to the sum of $20,000. Both Mr Daly and Mr Edwards signed the final pay letter, Mr Daly was given a cheque and then Mr Daly gave Mr Edwards his letter of resignation. It was both parties’ evidence that the meeting ended on a very good note.

[17] Mr Daly’s belief that he was owed$9,220 in bonuses and so had been short-changed by the company, in terms of the final sum agreed, is acknowledged. However, it is my view that Mr Daly and Mr Edwards reached agreement, during the meeting on 23 June 2014, that Mr Daly would be paid $20,000 and that, in exchange, he would resign. This was as a result of an unsolicited offer by Mr Daly, to the company, that he be paid three months’ salary for a no-contest resignation. I have, therefore, not been persuaded that Mr Daly was given no option by Mr Edwards other than to resign. If that had been the case, the parties would not have described their parting as having been on very good terms. Further, I accept the company’s evidence that the purpose of the meeting was not to terminate Mr Daly’s employment, which is supported by the length of time the meeting took. This was because the company had to put together the relevant documentation for Mr Daly, which had clearly not been pre-prepared, prior to the meeting.

[18] Taking all of this into account, I am satisfied that Mr Daly resigned from his employment voluntarily on 23 June 2014. Therefore, I find that there was no dismissal at the initiative of the employer.

[19] Accordingly, I uphold the respondent’s first jurisdictional objection. There is no necessity, therefore, to deal with the other jurisdictional objections.

[20] On this basis, Mr Daly’s application is dismissed. An order 77 to this effect will be issued separately.

Appearances:

Mr T Daly representing himself

Mr A Galbraith of Counsel for the Respondent

Hearing details:

2014.

Melbourne:

December 4.

Final written submissions:

Applicant, 9 February 2015

Respondent, 2 March 2015

Applicant, 23 March 2015

1 Exhibit R3 at paragraph 2

2 Exhibit A1 at paragraph 1(a)

3 Transcript PN 564 - 565 and 575

4 Ibid at PN 567 - 574 and Exhibit A1 (Witness Statement) at paragraph 1(b)

5 Ibid PN 580

6 Ibid PN 593 and 612 and ibid at paragraph 1(d) and Exhibit A2 at paragraph 2.2

7 Ibid at paragraph 1(d)

8 Transcript PN 598 - 606

9 Ibid PN 613 - 618

10 Ibid PN 629 - 631 and Exhibit A2 at paragraph 2.3

11 Ibid PN 632 - 637 and 639 - 643, ibid at paragraph 2.6 and Exhibit A1 (Witness Statement) at paragraph 1(i)

12 Ibid PN 635

13 Ibid PN 673 - 676 and Exhibit A1 (Witness Statement) at paragraph 1(k)

14 Ibid PN 638 and 644 and Exhibit A2 at paragraph 2.6

15 Ibid PN 645 - 652

16 Ibid PN 677

17 Ibid PN 620 - 628 and Exhibit A2 at paragraph 2.4

18 Ibid PN 656 and ibid at paragraph 2.9

19 Ibid PN 657 - 661

20 Ibid PN 683 and Exhibit A2 at paragraph 2.5.3

21 Ibid PN 685 - 686 and Exhibit A1 (Witness Statement) at paragraph 1(l)

22 Ibid PN 687 and 702 - 703

23 Ibid PN 692 - 701 and Exhibit A1 (Witness Statement) at paragraph 1(m)

24 Ibid PN 748 - 763, 796 and 949 - 952

25 Ibid PN 784 - 787 and 948

26 Ibid PN 788 - 793 and 797

27 Ibid PN 705

28 Ibid PN 695 and 731-733 and Exhibit A1 (Witness Statement) at paragraph 1(n)

29 Ibid PN 735

30 Exhibit A1 (Witness Statement) at paragraph 1(n)

31 Ibid PN 1123 - 1132

32 Ibid PN 1165 - 1166

33 Ibid PN 1284

34 Ibid PN 1158 -1161

35 Ibid PN 1167 - 1169

36 Ibid PN 1162 - 1163 and 1093

37 Ibid PN 1093 and Exhibit R4 at paragraph 7

38 Ibid PN 1183 - 1186

39 Ibid PN 1094 and 1224

40 Ibid PN 1225 - 1242 and 1291 - 1292

41 Ibid PN 1289 - 1290 and 1293

42 Ibid PN 1102 - 1103

43 Ibid PN 1107

44 Ibid PN 1109 - 1110 and Exhibit R4 at paragraph 9

45 Ibid at paragraph 9

46 Ibid at paragraphs 11 - 12

47 Transcript PN 1204

48 Ibid PN 1214 - 1217 and 1248

49 Ibid PN 1105 - 1114 and Exhibit R4 at paragraphs 13 - 14

50 Ibid PN 1114 - 1115

51 Ibid PN 1164

52 Ibid PN 1117 - 1119 and Exhibit R4 at paragraph 15

53 Ibid PN 1120 and ibid at paragraph 16

54 Ibid PN 1120 - 1122 and ibid at paragraph 16

55 Ibid at paragraph 18

56 Ibid

57 Ibid at paragraph 20

58 Applicant’s closing submissions, dated 9 February 2015, at paragraph 8

59 Ibid

60 Ibid

61 Ibid

62 Ibid at paragraph 9

63 Ibid at paragraph 10

64 Ibid at paragraph 11

65 Exhibit A1 (Witness Statement) at paragraphs 1(j) and (k)

66 Ibid at paragraph 1(l)

67 Ibid at paragraphs 1(l) - (p)

68 Applicant’s Closing Submissions in Reply, dated 17 March 2015, at page 3

69 Ibid

70 Exhibit R1 at paragraphs 2 and 8 - 11

71 Ibid at paragraph 15

72 Ibid at paragraphs 12 and 19

73 Ibid at paragraph 13

74 Ibid at paragraph 20

75 Respondent’s Closing Submissions, dated 2 March 2015, at paragraph 1(a)

76 Ibid at paragraph 1(b))

77 PR563530

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Citations

Tim Daly v Beonic Technologies Pty Ltd [2015] FWC 2898

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