Trevor Crotty v Southern Timber Industries

[2013] FWC 1070

[2013] FWC 1070

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Trevor Crotty
v
Southern Timber Industries
(U2012/13344)

COMMISSIONER WILLIAMS PERTH, 18 FEBRUARY 2013

Termination of employment - whether termination on the employer’s initiative.

[1] This matter involves an application made by Mr Trevor Crotty (the applicant or Mr Crotty) under section 394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy. The respondent is Southern Timber Industries (the respondent).

Background

[2] The respondent is in the business of hauling timber in the south of Western Australia.

[3] The applicant had been employed as a truck driver with the respondent for approximately ten years.

[4] The last day the applicant worked was Tuesday, 11 September 2012.

[5] The applicant arrived at the respondent’s yard in the early hours of the morning to collect a track to then proceed to the timber plantation where the truck would be loaded with wood chips.

[6] Whilst undertaking the pre-start check on the truck the applicant identified that the tail lights and sidelights on the truck were not working.

[7] Shortly after daylight the applicant decided to drive the truck to the respondent’s depot at Mt Barker and see if the lights could be fixed.

[8] He arrived there at approximately 7.30 a.m.

[9] Over the next hour a number of the respondent’s maintenance staff including an apprentice and a mechanic then attempted to fix the lighting fault.

[10] Over this time there were a number of conversations between the applicant and the respondent’s General Manager Mr Christopher Pavlovich which culminated in Mr Pavlovich directing the applicant to leave the site and return to Albany.

[11] It is the applicant’s assertion that Mr Pavlovich dismissed him at this point. The respondent however asserts that at no time was the applicant dismissed.

The Legislation

[12] Section 394 of the Act provides that a person who has been ‘dismissed’ may apply to the Commission for an order seeking a remedy for unfair dismissal.

[13] The Act in section 386 explains the meaning of ‘dismissed’ as follows:

“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.”

[14] In this case the respondent argues that this application cannot proceed because the applicant was not dismissed.

[15] The preliminary question to be determined is whether or not the applicant’s employment has been terminated on the employer’s initiative.

The evidence

[16] Mr Crotty gave evidence on his own behalf.

[17] The respondent’s General Manager Mr Christopher Pavlovich also gave evidence as did Ms Karen Webb the respondent’s Human Resources and Payroll Officer.

Mr Crotty’s evidence

[18] Mr Crotty says that he drove the truck to the respondent’s workshop at the Mt Barker depot and arrived just as the maintenance workshop was opening. He asked the apprentice Tyrone to give him a hand and he got his test equipment and started to try and find where the lighting fault was.

[19] Some time later Mr Pavlovich came over to the truck and pointed out that Mr Crotty couldn’t do much whilst others were diagnosing the fault and so suggested that he wash the wheels on the truck. Mr Crotty then washed the wheels as instructed.

[20] Mr Pavlovich brought the mechanic Brad over to give the apprentice Tyrone a hand. Rob the storeman also came over to the truck and pointed out to them that he had found the same problem on a previous truck and so they then found the electrical fault.

[21] At this point there was nothing that the applicant could do to fix the electrical fault so he walked over to the store room to see if he could get some polish for the wheels. Mr Crotty saw Mr Pavlovich go to the truck and he looked unhappy so Mr Crotty thought he’d better go back and see what was happening.

[22] Mr Pavlovich told him the truck can’t sit here and he said that they’re waiting for it at the chipper and it’s costing a lot of money. Mr Pavlovich said the chipper crew is sitting around waiting for the truck and he said he needed the truck moving so that he could pay the wages.

[23] Mr Crotty said to him they had found the fault and it is only a matter of a few minutes and it’s getting fixed and it’s ready to go but Mr Pavlovich was not happy with that.

[24] Mr Crotty acknowledges he had been instructed by Mr Pavlovich to get the truck out to the plantation as quickly as possible because they were waiting for it 1 but he didn’t do this because the truck was going to be ready in 10 or 15 minutes.

[25] Mr Crotty says he was quite prepared to take the truck out to the chipper but he wanted the lights fixed first.

[26] Mr Crotty’s evidence in chief from this point relevantly was as follows:

“Right, so did you tell Mr Pavlovich that you weren’t prepared to take the truck out without the lights being fixed?--- I did say that. Yes.

What were your reasons for not taking the truck out while the lights were not operating?---Well there was a couple of reasons. One is I’ve got to sign off on the prestart check that the lights are working on the truck.

Yes?---And they weren’t, so I - so that was out. But I also knew once I left the workshop I probably wouldn't get a chance to get back in and get them fixed.

Right?---And I'd end up in Albany that night, and start - an early start in the morning and the same process just repeat itself.

Yes, so that was sort of your experience from working there for 10 years, that
that - - -?---Yes, that was my experience.

That that would happen. Right, so you said you weren’t prepared to take the truck out. What did Mr Pavlovich do then?---Well he argued for a little - or he argued - he talked for a little while. He said it was daylight, there was nothing wrong with driving it in daylight because you don't need lights to see in daylight. And I tried to explain to him. I said, “It’s almost fixed Chris and I’m going to get stuck as usual. It’ll be dark when I get home and it'll be an early start in the morning and they’re still not fixed. For an extra 10 or 15 minutes they're fixed and I can just keep working with things right”. But he got a bit agitated about it then.

When you say he got a bit agitated can you explain that a bit further for me; what did he say and how did he say it?---Well he shouted it, pretty well and he - “If you're not prepared to do what I want you to do”, he said, “get your effing gear out the truck and stuff” - “and eff off back to Albany”. He said, “I’ll get you a lift”.

Okay, so what did you do then?---Well I - the storeman came over and he told me that Chris has asked him to organise a lift. He said, “I can’t do it till after smoko” and I said, “Well that’s fine”. I said, “I’ll” - I had a mobile phone kit and that hooked up in the truck. I said, “By the time I pull that out and get the rest of my personal stuff out it’ll be smoko time anyway”. So after smoko one of the drivers was going home and he said, “I’ll give you a lift” so I said to the workshop lad what I’m going to do and so I went with him.

So at that point you had the impression that your employment had been terminated; is that a fair - - -?---Well he made it pretty obvious as far as I could see it. Yes.

He made it pretty obvious?---I thought so. Yes.

All right, so you had no doubt?---No I had no doubt at all.

Did Mr Pavlovich say anything else rather than, you know, basically to get your gear and get out? Did he say anything else to you?---No, he walked off then.

Did you in the course of that robust discussion between you and Mr Pavlovich, did you say anything to Mr Pavlovich that may have irritated him at all?---Not that I'm aware of. Not deliberately.

Was anyone else in the vicinity when this happened?---The mechanics were probably floating around in the vicinity.

Right?---Yes, young - yes, Tyrone would’ve been round there and I'm not real sure whether Brad had gone back over to the workshop or - he probably could hear it from the workshop anyway.

Okay, so after this you got your gear, the lift had been organised, what did you do then?---I went over to the office and handed my paperwork into Karen and she said, “What, aren’t you working the rest of the week?” I said, “I’m not working at all, mate”. I said, “Chris just sacked me” and she says, “Oh, he never told me that” and I thought he made it pretty plain to me.

Okay, so Ms Webb said that Chris hadn’t told her that?---No. She said, “He never told me that”.

Did Ms Webb say anything else to you?---No, I don’t think - no.”(Underlining added)

[27] Mr Crotty says that later that day he, having returned to Albany, went to Centrelink and then contacted Ms Webb about obtaining a separation certificate.

[28] Two or three days later he then again rang Ms Webb to see if he could pick up the separation certificate which he had not received.

[29] Mr Crotty then came into the office to pick up the separation certificate from Ms Webb and she asked him what was going on and he told her what had happened and said, “To me that’s being sacked” to which Mr Crotty says Ms Webb said, “Yeah, it doesn’t sound good, does it?”.

[30] Mr Crotty’s evidence was that prior to this conflict with Mr Pavlovich he had quite frequently seen Mr Pavlovich lose his temper but not to the same extent.

[31] Under cross-examination Mr Crotty agreed that Mr Pavlovich did not say to him “You’re sacked” nor did he say, “You’re dismissed” nor did Mr Pavlovich say, “You’re fired”.

[32] Mr Crotty denies that Mr Pavlovich said to him “I’ll call you when I need you”.

Mr Pavlovich’s evidence

[33] Relevantly Mr Pavlovich in his statement of events 2 says that the workshop crew had confirmed that with the exception of Mr Crotty’s trailer clearance lights which had a broken fuse all the lights on the track were operational. He says he approached the workshop staff approximately every 30 minutes to get an update on the situation because of the pressure from customers requiring Mr Crotty’s truck. He says he also informed Mr Crotty to undertake his non-driving duties in regard to washing, greasing or checking tyre pressures.

[34] Mr Pavlovich says that after several contacts from himself Mr Crotty continued to sit back and watch, by leaning on the truck bull bar. Mr Pavlovich then instructed him to wash the wheels on the truck.

[35] When Mr Pavlovich next came out to the truck he believed the wheels had been washed in a half-hearted and unsatisfactory way. Mr Crotty was again leaning on the truck bull bar and not engaging in his normal non-driving tasks.

[36] Mr Pavlovich says he returned to the office to gather his thoughts. He said he had not been in this position before; his staff had always done as instructed.

[37] Mr Pavlovich says his conclusion was to give normal duty options to Mr Crotty regardless and if he refused then Mr Pavlovich would have no further requirement for him for the rest of the day.

[38] Mr Pavlovich was then informed that they were no closer to finding the cause of the clearance light problem and so he sought to locate an external auto electrician. He then approached Mr Crotty to drive the truck 8 kilometres to load up trailers and then return to the depot where an auto electrician could be booked to inspect the truck that afternoon.

[39] Mr Crotty raised the requirement to operate with lights on the timber plantation and then Mr Pavlovich referred him to the “Timber Plantation Code of Practice” which referred only to headlights running on low beam whilst in the plantation.

[40] In response to this Mr Pavlovich says Mr Crotty stated in no uncertain terms that he, Mr Pavlovich, could drive the truck and clean it as he, Mr Crotty, would not.

[41] Mr Pavlovich said his response was to say that if Mr Crotty was not prepared to follow simple instructions then he can take his personal equipment out of the truck and he will find him a lift back to the Albany depot and Mr Pavlovich concluded by saying “and I’ll call you when required”.

[42] Under cross-examination relevantly Mr Pavlovich’s evidence was:

“Okay. So just getting back to what is probably the nub of this, is that heated discussion you had with Mr Crotty. Can you just go through that again for me?---Heated discussion. I - the---

When you told him to get his gear out of the truck and go back to Albany?---Yes.

For want of a better description - mind you it seems that in the evidence previously it appears that the language was a fair bit stronger than that but that’s---?---The - I - in my job I need to handle quite a few different situations and generally what happens is I have supervisors and operations managers that work through the system and we tend to, sort of - I guess I overarch over the whole lot.

Yes?---When there comes issues where there’s a personal issue or a problem I try and relieve that and deal with that direct and it relieves the pressure from my staff on that. And I sometimes need to work a strategy as how we're going to manage this. Now I've - the documentation that supports that we have had internally some concerns with Trevor’s late - performance as of late, and me taking it personally to see that through, was that I - my practice is not to react on the spot and to jump up and down and scream and shout as Mr Crotty has implied today. Is I went back - the three, four or five times that I kept in contact with this to see what was going to evolve, was I went back to my office, thought “What are the options here? Do I send another truck out? Does the sparky come up this afternoon?” and all - or “How are we going to manage that through the workshop and the parts guys” and everybody else that were involved at the time. And I needed to make it quite clear to Trevor that you can't just lean on the roo bar of the truck for the three or four times that every time I happened to go out, and that he is not capable or able to on his own admission fix the lights or assist the two guys, which were more than - covered the potential finding mission[sic]. And I was trying to match Trevor's approach for the seriousness of the matter because if I’ve got 20 people sitting around - not sitting, they're all doing their jobs. There’s welders, there's fitters, electricians, the whole lot in the yard. And to see someone in the middle - dead in the middle of the yard where he parked the truck while it was getting inspected, sitting leaning on the roo bar means that if everybody decides to have that work ethic, and sit on the roo bar and not work, well then I’ve got a problem. So where Trevor has said today that sometimes round the workshop I can be a little bit grumpy, it’s more the case of trying to lift the production of the team hours so we don’t have three people looking at one person working otherwise we aren’t going to be in business.

Yes?---And when Trevor used explicit language to “Drive my own truck”. “I can wash it myself for” - and whatever else when he was in his little frat[sic] and I responded to that in a - some (indistinct) and said, “Well if you don't want to do that then you can take your gear, you can go home and we'll call you when we need you”. And that - just to spark Trevor and saying, “This is serious. We need you to have a better attitude. We need you to do what your duty statement is”, which is maintain the truck, which is - clearly he hasn’t been doing, the evidence shows that, and hoping that Trevor would spark and say, “Look, you know, I’m happy with my job. I'm just having a bad day”. Go home and think about it, ring up and saying, “Look, what’s going on?” People ring up looking for start times between all their supervisors and officers and so forth. I’m not sure if it was Danny or Jeremy was Trevor’s supervisor in that operation at the time, and they received no - and no correspondence from him. And I need drivers. There’s no doubt about that. Trevor’s truck’s still parked up in the yard. We haven’t found a replacement for Trevor yet. It is hard to find truck drivers in this day and age, and even though we need to perform to minimum standards and we work inflexible hours, I guess, or flexible hours over different days of the week, it would've been positive if Trevor took on[sic]. But I thought Trevor’s - well, to me he took the opportunity to retire which he's been eligible for for quite some time, and not put up with the routine rigours of working full-time. (Underlining added)

Ms Webb’s evidence

[43] Ms Webb’s evidence in chief was that on 11 September 2012 Mr Pavlovich came into the office and let her know that he had told Mr Crotty that if he wasn’t going to work he could take his personal belongings and grab a lift back to the Albany yard and that he would call him when they had work available and until he returned he would be paid at 38 hours per week base rate.

[44] Later that morning Mr Crotty came into the office and told her he was leaving as Mr Pavlovich had sacked him. She responded by saying, “That isn’t what Chris told me”.

[45] Later that afternoon Mr Crotty rang and requested a separation certificate.

[46] Under cross examination Ms Webb repeated that when Mr Pavlovich came into the office he told her that he had just told Mr Crotty that until he had more work for Mr Crotty he was to be stood down, being paid 38 hours a week 3.

Consideration

[47] Considering the evidence in this matter much of the background is not in dispute.

[48] Further the evidence of Mr Crotty and Mr Pavlovich is generally consistent up until the final critical exchange between them.

[49] Having reviewed the evidence I find that Mr Pavlovich had become increasingly frustrated with Mr Crotty’s behaviour over the morning of 11 September 2012.

[50] Mr Pavlovich then instructed Mr Crotty, notwithstanding the electrical fault in the clearance lights had not been fixed, to wait no longer and to drive the truck out to the timber plantation.

[51] Mr Crotty rudely told Mr Pavlovich that he would not do this and in all probability was swearing during this exchange.

[52] I accept the evidence of Mr Crotty that in all probability at this point Mr Pavlovich displayed some anger when telling Mr Crotty that if he was not going to follow simple instructions then he should take his personal equipment out of the truck and Mr Pavlovich would find him a lift back to the Albany depot. I accept in all likelihood that Mr Pavlovich also swore when making this statement.

[53] Importantly my conclusion is that Mr Pavlovich did say to Mr Crotty as part of this exchange that he would call Mr Crotty when he was required or words to that effect. Mr Pavlovich was adamant that he said this to Mr Crotty.

[54] The evidence of Ms Webb, at a time I find was immediately after the discussion with Mr Crotty, that Mr Pavlovich told her that until he had more work for Mr Crotty he was to be stood down and paid 38 hours a week is consistent with Mr Pavlovich having told Mr Crotty he would call him when he was required. Further Ms Webb’s evidence, which Mr Crotty agrees with, about their conversation in the office shortly after Mr Pavlovich had left the office where she responded to Mr Crotty’s statement to her that Mr Pavlovich had sacked her by saying, “That isn’t what Chris told me” (or on Mr Crotty’s version “He never told me that.”) is also consistent with Mr Pavlovich having told Mr Crotty to leave the site and that he would call him when required. On the exact words Ms Webb used I prefer her version rather than Mr Crotty’s however in contact on either version Ms Webb was expressing surprise to Mr Crotty at the time.

[55] However notwithstanding this finding I also find that Mr Crotty was truthful in his evidence when he said he did not hear Mr Pavlovich say that he would call him when required. Mr Crotty and Mr Pavlovich had been in a verbal conflict which had escalated over a period of time that morning. Both Mr Crotty and Mr Pavlovich were in all likelihood agitated and angry and so it is quite possible that in those circumstances Mr Crotty did not hear or understand everything that Mr Pavlovich said to him during the final heated exchange between them.

[56] In the recent decision in Geoff Barkla v G4S Custodial Services Pty Ltd [[2011] FWAFB 3769] a Full Bench of the Commission reviewed the authorities dealing with the meaning of the phrase “termination at the initiative of the employer” as follows:

“It is then necessary to consider whether any action of the employer amounted to termination of employment. It should be noted in this case that Mr Barkla did not resign from his employment. Rather he alleges that the employer’s conduct amounted to dismissal. There is considerable law on whether a resignation is forced by conduct of the employer or that the employer’s conduct amounts to a constructive dismissal either at common law or within the statutory definitions. In our view this law is helpful in the present context because it articulates the nature of employer conduct which will bring an employment contract to an end. This is what Mr Barkla has argued in this case. In O’Meara v Stanley Works Pty Ltd a Full Bench of the Australian Industrial Relations Commission discussed the relevant case law and outlined the legal considerations in the following terms:

“Termination at the initiative of the employer

[19] The circumstances in which a resignation, while apparently a termination of employment by the employee, nevertheless constitutes a termination at the initiative of the employer, have been considered in a number of cases. A prominent authority is the decision of a Full Court of the Federal Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd  (Mohazab). In that case, the employer made a threat that unless the employee resigned the employer would ask the police to charge the employee with an offence. The analysis of the concept of termination at the initiative of the employer by the Court in that case has not always been quoted in full. It is desirable that we do so in this case. After referring to dictionary definitions of the term “initiative” and the convention giving rise to the statutory provisions, the Full Court said:

“These definitions reflect the ordinary meaning of the word ‘initiative’. Viewed as a whole, the Convention is plainly intended to protect workers from termination by the employer unless there is a valid reason for termination. It addresses the termination of the employment relationship by the employer. It accords with the purpose of the Convention to treat the expression ‘termination at the initiative of the employer’ as a reference to a termination that is brought about by an employer and which is not agreed to by the employee. Consistent with the ordinary meaning of the expression in the Convention, a termination of employment at the initiative of the employer may be treated as a termination in which the action of the employer is the principal contributing factor which leads to the termination of the employment relationship. We proceed on the basis that the termination of the employment relationship is what is comprehended by the expression ‘termination of employment’: Siagian v Sanel (1994) 1 IRCR 1 at 19; 54 IR 185 at 201. In many, if not most, situations the act of the employer that terminates the employment relationship is not only the act that puts in train the process leading to its termination but is, in substance, the entire process. An example would be a situation where the employer decided to dismiss an employee and did so orally or in writing with immediate effect. Other situations may be more complex as exemplified by the circumstances considered by Moore J in Grout v Gunnedah Shire Council (1994) 1 IRCR 143; 57 IR 243 where an employee had given written notice purporting to terminate the employment relationship. The notice was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw the notice. A question arose as to whether that was a termination of the employment at the initiative of the employer and his Honour held it was. His Honour said at 160-161; 259:

‘I have already said that Div 3 concerns termination at the initiative of the employer. The respondent submits that “initiate” means “to begin, commence, enter upon; to introduce, set going, or initiate”: see Shorter Oxford English Dictionary. In this matter, it is submitted, it was the applicant and not the respondent that initiated the termination by writing the letter of 18 May. This, in my opinion, gives the expression “termination” in the Act, read in conjunction with Art 3 of the Convention which speaks of “termination … at the initiative of the employer”, a narrow meaning that was not intended. A principal purpose, if not the sole purpose, of Div 3 is to provide an employee with a right to seek a remedy in circumstances where the employee did not voluntarily leave the employment. An employee may do some act which is the first in a chain of events that leads to termination. An example would be an employee who engaged in misconduct at work which ultimately led to the employer dismissing the employee. However, that situation and the present are not situations where the termination was at the initiative of the employee. In both instances the step or steps that effectively terminated the employment or purported to do so were taken by the employer.’

In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship. This issue was addressed by Wilcox CJ in APESMA v David Graphics Pty Ltd (unreported, Industrial Relations Court of Australia, 12 July 1995, Wilcox CJ). His Honour, at p 3, referred to the situation of an employee who resigned because ‘he felt he had no other option’. His Honour described those circumstances as:

‘… a termination of employment at the instance [of] the employer rather than of the employee.’

And at p 5:

‘I agree with the proposition that termination may involve more than one action. But I think it is necessary to ask oneself what was the critical action, or what were the critical actions, that constituted a termination of the employment.’”

[20] Moore J, one of the members of the Full Court in Mohazab, addressed the question further in Rheinberger v Huxley Marketing Pty Limited  (Rheinberger). His Honour said, after referring to extracts from Mohazab:

“However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such a termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect. I leave open the question of whether a termination of employment at the initiative of the employer requires the employer to intend by its action that the employment will conclude. I am prepared to assume, for present purposes, that there can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct.”

[21] In this Commission the concepts have been addressed on numerous occasions and by a number of Full Benches. In Pawel v Advanced Precast Pty Ltd  (Pawel) a Full Bench said:

“[13] It is plain that the Full Court in Mohazab considered that an important feature in the question of whether termination is at the initiative of the employer is whether the act of an employer results directly or consequentially in the termination of the employment and that the employment relationship is not voluntarily left by the employee. However, it is to be noted that the Full Court described it as an important feature. It plainly cannot be the only feature. An example will serve to illustrate this point. Suppose an employee wants a pay rise and makes such a request of his or her employer. If the employer declines and the employee, feeling dissatisfied resigns, can the resignation be said to be a termination at the initiative of the employer? We do not think it can and yet it can be said that the act of the employer i.e. refusing the pay rise, has at least consequentially resulted in the termination of the employment. This situation may be contrasted with the position where an employee is told to resign or he or she will be terminated. We think that all of the circumstances and not only the act of the employer must be examined. These in our view, will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee. In the instant case the uncontested factual findings are that the applicant had for almost the whole of his employment performed welding duties; that there was no objective threat to his health and safety involved in the requirement that he undertake welding duties so long as it was not on a continuous basis and that the welding he was required to do was not continuous.”

[22] In the Full Bench decision of ABB Engineering Construction Pty Ltd v Doumit  (ABB Engineering) it was said:

“Often it will only be a narrow line that distinguishes conduct that leaves an employee no real choice but to resign employment, from conduct that cannot be held to cause a resultant resignation to be a termination at the initiative of the employer. But narrow though it be, it is important that that line be closely drawn and rigorously observed. Otherwise, the remedy against unfair termination of employment at the initiative of the employer may be too readily invoked in circumstances where it is the discretion of a resigning employee, rather than that of the employer, that gives rise to the termination. The remedies provided in the Act are directed to the provision of remedies against unlawful termination of employment. Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer’s conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer’s conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer. The validity of any associated reason for the termination by resignation is tested. Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[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.” (References omitted)

[57] Whilst in this case the applicant does not say that he resigned the cautionary observation of the Full Bench of the Commission in ABB Engineering Construction Pty Ltd v Doumit 4 (ABB Engineering), mentioned above, is appropriate to note in this case:

“Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as other than voluntary.”

[58] Mr Crotty says that Mr Pavlovich had made it plain to him that he was dismissed. That was his perception and his subjective response to what had occurred.

[59] The basis for Mr Crotty believing this was the case was that Mr Pavlovich had told him to get all his things out of the truck and return to Albany and he would organise a lift for him.

[60] There are however a number of reasons why objectively it should not be concluded that Mr Pavlovich by his statement and actions was terminating the employment relationship of ten years.

[61] Firstly at no time did Mr Pavlovich say that Mr Crotty was dismissed, or was fired or was sacked or indeed say any words to that effect.

[62] In addition Mr Crotty was aware that Mr Pavlovich had been becoming increasingly frustrated over the morning and in Mr Crotty’s words Mr Pavlovich was angry when he told him to return to Albany.

[63] Finally shortly after Mr Pavlovich spoke to him Mr Crotty was told by Ms Webb that Mr Pavlovich had told her something other than that he had sacked Mr Crotty.

[64] In these circumstances it is not obvious why Mr Crotty took the statement and actions of Mr Pavlovich to mean his employment had been terminated. Considering these circumstances objectively there was some doubt as to what Mr Pavlovich intended when he told Mr Crotty to gather his belongings and return to Albany. Separately as I have found Mr Pavlovich did say he would call Mr Crotty when he was required.

[65] Objectively viewed (even without the finding that Mr Pavlovich said he would call Mr Crotty) what Mr Pavlovich did and said cannot be interpreted as unambiguously meaning he wished to terminate the employment of Mr Crotty nor can it be said that the evidence discloses this was said and done with the intention of bringing the employment relationship to an end.

[66] Objectively it also cannot be said that Mr Pavlovich’s statements and actions on any reasonable view would probably have the effect of bringing the employment relationship to an end. The more probable effect would be the parties would have discussions in the days following to sort the conflict out.

[67] Whilst Mr Crotty may well have held the subjective view that he had been dismissed objectively it cannot be said that the employment relationship between Mr Crotty and the respondent had been terminated at the initiative of Mr Pavlovich. My conclusion is that Mr Crotty was not dismissed by the respondent.

[68] Consequently this application is unable to be made by Mr Crotty. This application will be dismissed and an order to that effect will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

G Wroth for the applicant.

C Pavlovich of the respondent.

Hearing details:

2012.

Albany:

December 19.

 1   Transcript at PN45.

 2   Exhibit R1.

 3   Transcript at PN220.

 4   Print N6999, 9 December 1996 (Munro J, Duncan DP, Merriman C).

Printed by authority of the Commonwealth Government Printer

<Price code C, PR534133>