Tomlinson v Ballina Furniture Overnights

[2016] FWC 2451

[2016] FWC 2451

DECISION

Fair Work Act 2009

s.394—Unfair dismissal

Dave Tomlinson

v

Ballina Furniture Overnighters T/A Ballina Removals & Storage

(U2015/15259)

DEPUTY PRESIDENT LAWRENCE	SYDNEY, 20 APRIL 2016
Application for relief from unfair dismissal.

[1]        On 23 November 2015 Mr David Tomlinson (the Applicant) lodged an application

pursuant to s.394 of the Fair Work Act 2009 (the Act) for a remedy for unfair dismissal

against Ballina Furniture Overnighters T/A Ballina Removals & Storage. (the Respondent).

[2]        The Applicant says that he commenced employment with the Respondent in October

2013. He was notified of dismissal on 5 November and the dismissal took effect on that day,

according to the F3 application.

[3]        The Applicant says that the Respondent’s representative, Mr Gary Dunford, called him

“a f…ing useless brain dead moron”. The Applicant objected to this and said that “he would

not be here tomorrow”. Mr Dunford said “good” and repeated the insult. It was alleged that

this formed part of a pattern of insults.

[4]        The Applicant seeks compensation.

[5]        The Respondent is a transport and removal company based in Ballina in Northern New

South Wales.

[6]        The Applicant was employed at the Sydney Depot as “Sales Manager”. His salary was

$121,500 p.a. plus a fuel card and $100 per month mobile phone allowance. I note that the

Applicant says that the salary was actually less than this figure, in fact, about $90,000.

[7]        The Respondent says that the applicant was not dismissed but rather resigned of his

own volition. The incident of 5 November 2015 was a telephone exchange between the

Applicant and Mr Dunford who is the Respondent’s Managing Director. Mr Dunford does not

deny he used the words quoted above. However, he says it was in response to the Applicant

asking three times “how many vans are coming to Sydney today” when Mr Dunford had

answered this question each time. The Applicant said “I quit” and hung up. The Applicant

rang on 10 November to ask where he stood. Mr Dunford confirmed that he had quit.
[2016] FWC 2451
Commission Proceedings

[8]        The conciliation scheduled for 11 January 2016 was cancelled because the Respondent

requested its jurisdictional objection to be dealt with.

[9]        I conducted a telephone programing conference on 1 February 2016.

[10]      The hearing took place in Sydney on 8 February

[11]      The Applicant represented himself. The Respondent was represented by Mr G.

Beveridge, counsel. Mr Beveridge was granted permission to appear pursuant to s.596 of the

Act.

[12]      The Applicant relied on a written submission and witness statement (Exhibit T1).

[13]      The Respondent relied on a written submission and witness statements of:

	Gary Dunford, the Respondent’s Managing Director (Exhibit B1).
	Robert Byrne, a driver for the Respondent (Exhibit B3).
	Gregory Prior, a driver for the Respondent (Exhibit B4).

Protection from Unfair Dismissal

[14]      An order for reinstatement or compensation may only be issued where I am satisfied

the applicant was protected from unfair dismissal at the time of the dismissal.

[15]      Section 382 sets out the circumstances that must exist for the applicant to be protected

from unfair dismissal:

“382 When a person is protected from unfair dismissal

A person is protected from unfair dismissal at a time if, at that time:

(a) the person is an employee who has completed a period of employmentwith

his or her employer of at least the minimum employment period; and

(b) one or more of the following apply:

(i)          a modern award covers the person;

(ii)         an enterprise agreement applies to the person in relation to the

employment;

(iii)        the sum of the person’s annual rate of earnings, and such other amounts

(if any) worked out in relation to the person in accordance with the

regulations, is less than the high income threshold.

Note: High income threshold indexed to $136,700 from 1 July 2015”

[2016] FWC 2451

[16]      There was no dispute that the Applicant had the required service and the Applicant’s

income was below the high income threshold at approximately $122,700 per annum

(according to the Applicant). No enterprise agreement or award applied it was conceded.

[17]      The Applicant was therefore protected from unfair dismissal.

Was the dismissal unfair?

[18]      A dismissal is unfair if I am satisfied, on the evidence before me, that all of the

circumstances set out at s.385 of the Act existed. Section 385 provides the following:

“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.”

Was the Applicant dismissed?

[19]      A person has been unfairly dismissed if the termination of their employment comes

within the definition of “dismissed” for the purposes of Part 3-2 of the Act. Section 386 of the

Act provides that:

“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

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:

[2016] FWC 2451

(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.”

[20]      The dispute in this case was whether the Applicant has resigned or had been the

subject of a constructive dismissal. I will return to this issue.

[21]      It was not contested that s.385(c) had no application. The Respondent had some 42

employees. Section 385(d) also has no application.

Harsh, Unjust or Unreasonable

[22]      I must consider whether I am satisfied the dismissal was harsh, unjust or unreasonable.

The criteria I must take into account when assessing whether the dismissal was harsh, unjust

or unreasonable are set out at s.387 of the Act:

“387 Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or

unreasonable, the FWC must take into account:

(a) whether there was a valid reason for the dismissal related to the person’s

capacity or conduct (including its effect on the safety and welfare of other

employees); and

(b) whether the person was notified of that reason; and

(c) whether the person was given an opportunity to respond to any reason

related to the capacity or conduct of the person; and

(d) any unreasonable refusal by the employer to allow the person to have a

support person present to assist at any discussions relating to dismissal; and

(e) if the dismissal related to unsatisfactory performance by the person-whether

the person had been warned about that unsatisfactory performance before the

dismissal; and

[2016] FWC 2451

(f) the degree to which the size of the employer’s enterprise would be likely to

impact on the procedures followed in effecting the dismissal; and

(g) the degree to which the absence of dedicated human resource management

specialists or expertise in the enterprise would be likely to impact on the

procedures followed in effecting the dismissal; and

(h) any other matters that the FWC considers relevant.

Approach of the Commission

[23]      The ambit of the conduct which may fall within the phrase ‘harsh, unjust or

unreasonable’ was explained in Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185

CLR 410 at 465 by McHugh and Gummow JJ as follows:

“... It may be that the termination is harsh but not unjust or unreasonable, unjust but not

harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the

concepts will overlap. Thus, the one termination of employment may be unjust because

the employee was not guilty of the misconduct on which the employer acted, may be

unreasonable because it was decided upon inferences which could not reasonably have

been drawn from the material before the employer, and may be harsh in its

consequences for the personal and economic situation of the employee or because it is

disproportionate to the gravity of the misconduct in respect of which the employer

acted.”

[24]      Vice President Ross, as he then was, in B Rose v Telstra Corporation Limited (1998)

Q9292 (Rose) restated the above proposition and also stated:

“In my view whether there has been a `fair go all round’ is a matter which I think is

relevant and hence I am to have regard to it determining whether the termination was

harsh, unjust or unreasonable. It is not necessarily determinative but it is a factor to be

taken into account.”

The Applicant’s Case

[25]      The Applicant maintained that Mr Dunford was testy during the phone conversation

on 5 November. He gave the Applicant conflicting information which led to the Applicant

seeking to confirm, a number of times, how many trucks would be arriving the next day.

[26]      The Applicant said that Mr Dunford told him to “find something else to do” prior to

the name calling.

[27]      The Applicant says that Mr Dunford had talked to him, using these kinds of insults,

during the period of his employment on average once or twice a month. This led to the

Applicant becoming stressed.

The Respondent’s Case
[2016] FWC 2451

[28]      The Respondent submits that the Applicant quit his position without notice. He was in

a management position and had left the Respondent in a difficult position.

[29]      Greg Prior, another of the Respondent’s employees, stated that the Applicant had rung

him after the conversation with Mr Dunford. The Applicant had told him that he would not be

coming in to work the next day.

[30]      The Respondent points out that it was five days after the alleged dismissal before the

Applicant contacted the Respondent and sought to challenge it. The Applicant did not seek to

withdraw his resignation during this time.

Was the Applicant Dismissed Pursuant to s.386?

[31]      Cases such as Mohazab v Dick Smith Electronics Pty Ltd (No. 2) (1995) 62 IR 200

(Mohazab) and O’Meara v Stanley Works Pty Ltd [2006] AIRC 496 (O’Meara) deal with

s.386(1)(a). A termination is at the employer’s initiative when its action “directly and

consequentially” results in the termination of employment, and the employee would have still

been employed but for that action. An analysis of all the circumstances is required. The Full

Bench states in O’Meara:

“[23] In our view the full statement of reasons in Mohazab which we have set out

together with the further explanation by Moore J in Rheinberger and the decisions of

Full Benches of this Commission in Pawel and ABB Engineering require that there to

be some action on the part of the employer which is either intended to bring the

employment to an end or has the probable result of bringing the employment

relationship to an end. It is not simply a question of whether “the act of the employer

[resulted] directly or consequentially in the termination of the employment.”

Decisions which adopt the shorter formulation of the reasons for decision should be

treated with some caution as they may not give full weight to the decision in Mohazab.

In determining whether a termination was at the initiative of the employer an objective

analysis of the employer’s conduct is required to determine whether it was of such a

nature that resignation was the probable result or that the appellant had no effective or

real choice but to resign.”

[32]      Where an Applicant claims they were forced to resign they must show they had no real

choice, Mohazab. The onus is on the employee to prove that they did not resign voluntarily

and that the employer forced them to do it, Australian Hearing v Peary (2009) 185 IR 359.

An employer is generally able to treat a clear and unambiguous resignation as such, Ngo v

Link Printing Pty Ltd (1999) 94 IR 375 (Ngo).

[33]      Deputy President Wells in Dawes v Presbyterian Care [2014] FWC 4067 provides

the following useful summaries of the approach to be taken:

“[4] The Explanatory Memorandum to the Fair Work Bill 2008 (Cth) said in respect of

now s.386(1) that:

“Clause 386 – Meaning of dismissed

1528. This clause sets out the circumstances in which a person is taken to be

dismissed. A person is dismissed if the person’s employment with his or her employer
[2016] FWC 2451

was terminated on the employer’s initiative. This is intended to capture case law

relating to the meaning of ‘termination at the initiative of the employer’ (see, e.g.,

Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200).

1529. Paragraph 386(1)(b) provides that a person has been dismissed if they resigned

from their employment but were forced to do so because of conduct, or a course of

conduct, engaged in by their employer. Conduct includes both an act and a failure to

act (see the definition in clause 12).

1530. Paragraph 386(1)(b) is intended to reflect the common law concept of

constructive dismissal, and allow for a finding that an employee was dismissed in the

following situations:

	where the employee is effectively instructed to resign by the employer
in the face of a threatened or impending dismissal; or

 where the employee quits their job in response to conduct by the

employer which gives them no reasonable choice but to resign.”

. . .

[59] In order for there to be access to a remedy to unfair dismissal, the employee must

have been dismissed in accordance with s.386 of the Act. Accordingly, I am required

to determine on the evidence whether Ms Dawes was dismissed at the initiative of

PCT or whether she was forced to resign due to the conduct engaged in by PCT.

[60] In order to amount to a termination at the initiative of the employer the applicant

must have been forced to resign by a course of conduct engaged in by PCT.”

Consideration

[34]      In cross-examination the Applicant clarified that the conversation with Mr Dunford

was heated prior to the “brain dead moron” insult (Transcript PN89). He was adamant that Mr

Dunford had threatened to sack him. He denied that he had resigned or quit.

[35]      There is a divergence of the evidence as whether the Applicant said something which

indicated he had quit. However, I am satisfied that Mr Dunford did not say anything

specifically dismissing the Applicant. Clearly, the insult to the Applicant was inappropriate

whatever frustration Mr Dunford felt. However, that does not amount to a dismissal. Mr

Byrne and Mr Prior tended to confirm this. If the Applicant had been specifically dismissed it

would be expected that he would have told Mr Prior during the phone call later in the

afternoon that “he had been sacked”. I accept Mr Prior’s evidence that there was nothing to

indicate that the Applicant had been dismissed.

[36]      In Ngo, the Full Bench held that where a resignation had taken place, it could only be

retracted by speedy action.

“[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The

relevant law was the subject of extensive consideration by Gray J in Birrell v

Australian National Airlines Commission (referred to in paragraph [8]). The

conclusion to be drawn from that case is, we think, clears - a unilateral withdrawal of a

[2016] FWC 2451

notice of termination of a contract of employment is not possible (p.110). There was

some suggestion by the appellant that Birrell has been overtaken by later cases. We do

not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building

Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same

year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138]

and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v

Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].

[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a

decision of the Employment Appeal Tribunal (UK), in which it was held that words of

dismissal spoken in the heat of the moment were ineffective if withdrawn immediately

the heat had died down. Gray J said that he regarded this decision as confined to its

facts and therefore as not extending beyond permitting the withdrawal of words

uttered in the heat of the moment, when those words are retracted swiftly (pp.110-

111).

[37]      I am not satisfied that the Applicant was dismissed by the Respondent. It is likely that

the Applicant did not clearly resign but inferred that he was “finished”. The fact that this was

not further acted on or attempted to be clarified until five days later confirms that he had

resigned. I do not accept that the Applicant had no real choice but to do what he did.

Conclusion

[38]      Therefore, I find that the Applicant was not dismissed pursuant to s.385(a).

[39]      It follows that the Applicant’s claim for a remedy for unfair dismissal must fail and is

therefore dismissed. An Order [PR579349] will be issued with this decision.

DEPUTY PRESIDENT

Appearances:

D.W. Tomlinson, Applicant;

G. Beveridge of counsel with G. Dunford for the Respondent.

Hearing details:

2016

February 1 (Telephone conference)

Sydney:

February 8.

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