Wayne Neil Caddaye v Woolworths Pty Ltd t/as Safeway & Kevin John Beech v Woolworths Pty Ltd t/as Safeway & Robert John Lutton v Woolworths Pty Ltd t/as Safeway & John Ian Smith v Woolworths Pty Ltd t/as Safeway &...
[1996] IRCA 61
•21 Feb 1996
DECISION NO: 61/96
CATCHWORDS
INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - JURISDICTION - whether termination at the initiative of the employer - whether RESIGNATION - whether ‘termination at the intiative of the employer’ includes circumstances where an employer takes a decision to suspend an employee for the purposes of complying with its obligations under the Act
Industrial Relations Act 1988, ss 170EA
Mohazab v Dick Smith Electronics Pty Ltd (Industrial Relations Court of Australia, Lee, Moore, and Marshall JJ, 28 November 1995, unreported.)
Gunnedah Shire Council v Grout ( Industrial Relations Court of Australia, Wilcox CJ, Spender and Beazley JJ, 19 December 1995, unreported)
WAYNE NEIL CADDAYE v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4014 of 1995
KEVIN JOHN BEECH v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4015 of 1995
ROBERT JOHN LUTTON v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4017 of 1995
JOHN IAN SMITH v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4018 of 1995
RAINER SMIDT v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4019 of 1995
GARRY COLIN HUNTER v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4020 of 1995
ROBERT ARTHUR HILL v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4021 of 1995
BERTRAM CHARLES v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4034 of 1995
GARY JAMES WHITTAKER v WOOLWORTHS PTY LTD t/as SAFEWAY
VI 4053 of 1995
Before: PARKINSON JR
Place: MELBOURNE
Date: 21 FEBRUARY 1996
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4014 of 1995
VI 4015 of 1995
VI 4017 of 1995
VI 4018 of 1995
VI 4019 of 1995
VI 4020 of 1995
VI 4021 of 1995
VI 4034 of 1995
VI 4053 of 1995
B E T W E E N:
Wayne Neil CADDAYE
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Kevin John BEECH
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Robert John LUTTON
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
John Ian SMITH
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Rainer SMIDT
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Garry Colin HUNTER
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Robert Arthur HILL
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Bertram CHARLES
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Gary James WHITTAKER
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
MINUTES OF ORDERS
21 February 1996 PARKINSON JR
THE COURT ORDERS THAT:
Each of the applications be dismissed.
NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
VI 4014 of 1995
VI 4015 of 1995
VI 4017 of 1995
VI 4018 of 1995
VI 4019 of 1995
VI 4020 of 1995
VI 4021 of 1995
VI 4034 of 1995
VI 4053 of 1995
B E T W E E N:
Wayne Neil CADDAYE
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Kevin John BEECH
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Robert John LUTTON
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
John Ian SMITH
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Rainer SMIDT
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Garry Colin HUNTER
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Robert Arthur HILL
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Bertram CHARLES
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
Gary James WHITTAKER
Applicant
A N D
WOOLWORTHS (VIC) PTY LTD
trading as SAFEWAY
Respondent
REASONS FOR DECISION
27 February 1996 PARKINSON JR
This is a decision in relation to a jurisdiction question arising from applications made pursuant to s170EA of the Industrial Relations Act 1988. A notice of motion filed by the respondent on 21 September 1995 was adjourned to the date of the hearing. On the date of the matter coming on for hearing, I decided that it was a convenient and appropriate course to hear and determine the jurisdiction matter. Evidence was taken and submissions put on 19 and 20 February 1996. On 21 February 1996 I delivered judgment and dismissed the applications made pursuant to s170EA, whilst reserving my reasons. I advised the parties that my reasons would be published. These are those reasons.
The Jurisdiction Issue
The respondent contends that, in the course of being interviewed in relation to allegations of misconduct, each of the applicants resigned. It contends that the resignations were voluntary and unsolicited from the respondent. It is submitted that in such circumstances the termination of the employment was not one which occurred as a result of the initiative of the employer and consequently the applications are not able to be brought pursuant to s170EA of the Act. The applicants contend that the termination of employment occurred only as a consequence of the applicants being faced with a fait accompli in relation to their employment. They submitted that the reality of the situation was that their employment was going to be terminated and that they knew this to be the case by way of their union representative. The submitted that they had no alternative but to resign or be sacked.
It is appropriate to set out the factual circumstances which led to the allegations of misconduct being made against the applicants. The applicants were each employed by the respondent at its Woolworths warehouse facility at Mulgrave. They were employed in various capacities of storeperson, labourer or cleaner. In the months of June and July 1995 the respondent had installed video surveillance devices directed towards detecting theft occurring in the warehouse. In the course of those surveillance exercises a number of employees were filmed, and some persons were identified as having behaved in a manner which caused the respondent to form the view that they were involved in theft of company property. The allegations ranged in degree of seriousness from eating stock in the warehouse premises contrary to company rules, to taking stock from allocated orders to their own use. As a consequence of the video contents, arrangements were made to interview the applicants and each applicant was initially interviewed. When those interviews were inconclusive, the applicants were each suspended on full pay until a further interview could be arranged with the full time union representative present.
Whilst he did not submit that such conduct constituted of itself a termination of employment at the initiative of the employer, counsel for the applicants pointed to the fact of suspension, and contended that because no right to suspend was provided for in the Enterprise Agreement, such conduct evidenced the inevitable intention of the respondent. I do not agree that this is so. The suspension on full pay evinces in my view nothing more than an intention on the part of the respondent to investigate allegations made. Further, although the issue was not argued fully, I have considered the question and I am not satisfied that the term “termination at the initiative of the employer” includes circumstances where an employer take a decision to suspend an employee on full pay for the purposes of complying with its obligations pursuant to the Act.
The interviews were arranged for 17 July 1995 at various time intervals. At each interview the applicant was represented by Mr Conway, a union organiser, and present also was the workplace representative of the union, Mr Nowland. The interviews were conducted by security officers in the employ of the respondent. Those interviews were tape recorded and the transcript attached to the affidavits tendered. At each interview the applicants were shown the video tape relevant to the allegations against them and were offered an opportunity to explain such conduct.
The court was shown video tapes of the incidents relied upon by the respondent as evidence that each of the applicants were involved in such conduct, and the applicants gave evidence as to their explanations for the conduct recorded on the video tapes. Each of the applicants swore affidavits which were tendered in evidence and they were cross examined briefly in relation to their contents, the evidence in chief and the cross examination having been limited to the matters necessarily arising as a result of the jurisdiction question.
It was the applicants’ case that they had each believed that it was inevitable that their employment was to be terminated and that they had been informed of this fact by the union representative, Mr Conway. Further it was said that Mr Conway had informed them that the only option that they had was to resign or be sacked. Their affidavit evidence was that they had been told by Mr Conway that their only choice was to resign and get accrued entitlements, and that if they did not they would get nothing. Mr Smidt’s affidavit stated that Mr Conway also said words to the effect that the union was unlikely to back him in a case.
Mr Conway’s evidence did not support the applicants’ version of the advice they received. His evidence was that he informed each of the applicants of their options in relation to the matter. In so doing, he said he told them he did not want or need to know whether they were guilty or not guilty of the allegations, but that if they chose not to resign and they were sacked by the respondent, then the union would run an unfair dismissal case for them. His evidence was that he did not twist the applicants’ arms to resign and that the respondent did not twist his to make the applicants resign, and that he had never told any of the employees that unless they resigned they would get the sack. This evidence in my view is supported by the conduct of the interviews and the statements made by Mr Conway in the course of those interviews. The contents of the tape recording at the interviews establish that, even if contrary to my view one does not accept it as having been said already, Mr Conway was clearly on the record to the effect that in the event that the company proceeded to dismiss the applicants, the union would bring proceedings for wrongful dismissal on their behalf.
In each case the evidence is that it was Mr Conway, speaking on behalf of and in the presence of the applicants, who raised the issue of the resignation with the employer. In each case he indicated he was speaking on behalf of the applicants. The evidence is also that each of the applicants was concerned to establish and to negotiate the terms upon which he would offer a resignation. In each case, the question of the amount of the accrued entitlements was discussed and some consideration was given to the form of the resignation letter by the applicants. Those applicants who were questioned by the respondent as to the reality of their resignation did not indicate by their response any uncertainty, or express any feeling of inevitability about the resignation.
The applicants Messrs Smith, Beech, Hunter, Lutton and Smidt in cross examination agreed that Mr Conway had advised them of their options, including either to fight any termination or resign. They further conceded that he had merely informed them that if the company did not accept their explanation of events, they were likely to be sacked. Neither Messrs Charles or Hill could recall these things being said. Mr Caddaye denied that this was the case. Mr Smidt’s evidence was that Mr Conway had emphasised the option of resigning. The evidence of Messrs Smith, Beech, Hunter, Lutton and Smidt in this regard is consistent with the version of events given by Mr Conway.
Having regard to all of the above matters, I prefer the evidence of Mr Conway to that of the applicants in these proceedings. I am satisfied that the applicants were fully informed by Mr Conway as to their options in relation to the investigation. I am satisfied that there was no conduct on the part of Mr Conway, or on the part of the respondent as conveyed by Mr Conway, which would constitute the decisions by the applicants to resign as anything other than a decision made of their own free will after having received advice and assistance, independent of the employer, as to their options.
I have dealt with my findings in relation to the advice and conduct of Mr Conway, but there is another significant aspect to these proceedings. In such negotiations and interviews, Mr Conway was there on behalf of the applicant as an agent for the applicant. He was not acting on behalf of the employer. Nor can his conduct be attributed to the employer, or his interpretation of the employer’s intent or meaning be attributed to the employer.
The facts of these cases are clear. Management of the respondent at no stage expressly or implicitly suggested that the terminations were inevitable, or that the applicants had no other option but to resign or be dismissed. The management was embarking upon a process of investigation and the process is that which is required by this Act. Further, the stage of interview was all that had been reached. There is no evidence before me that any representative of the respondent in any way encouraged or cajoled or even suggested that any of the applicants resign as an alternative to being dismissed.
Whilst there is no doubt that a possible outcome of the investigation was that the employment would be terminated, the process had not reached that point, and at no time was such a proposition put to any of the applicants by the respondent. Whilst the fact of involvement of the police is pointed to by the applicants as being relevant to their decision to resign, this is not a case where the applicants were being threatened with an ultimatum of either resigning or the employer calling in the police, as was the case in Mohazab v Dick Smith Electronics Pty Ltd, an unreported decision of the Full Court delivered on 28 November 1995.
In this case the police were already involved, and whilst the applicants sought the respondent’s forbearance in relation to police action, and the respondent indicated that, in so far as it was in its power, it would not press for further action, no guarantees were given in this regard and the outcome was clearly a matter for the police to determine, not the respondent. The suggestion in this regard came from the applicants and not from the respondent. Further the issue of police involvement was not the only matter which operated on the applicants minds in terms of the decision to resign. Other significant matters such as the applicants’ monetary and notice entitlements upon resignation were of importance in the discussions.
Further, the first person interviewed by the respondent, Mr Beech, resigned during the course of the interview, with the respondent’s representative, Mr Watson, having to obtain instructions from more senior management as to whether it was prepared to accept a resignation, and what terms and benefits would be available. I am satisfied that the issue of resignation was not a prospect which had been contemplated by the respondent until the interview with Mr Beech. No steps had been taken by the respondent in advance of the interviews commencing, to facilitate arrangements for resignation. No documentation in respect of the entitlements was available and Mr Watson was unable, without initiating enquiries, to provide information to the applicant Beech. Subsequently, such information was prepared and made available, but, I am satisfied, only at the request of the applicant concerned.
It is my conclusion that the option of resignation was initiated by the employees in each of these applications, acting on advice as to the options available to them. They did so, I am satisfied, after weighing up the various advantages and disadvantages in taking such a course of action. Whilst the respondent did request that such resignations be reduced to writing, these are not cases where the respondent had taken the decision out of the hands of the applicants and made the outcome inevitable. These applicants were represented and had sufficient time to take the steps they chose.
In so far as the application of the term “termination at the initiative of the employer” is concerned, I do not accept that the critical act in relation to these proceedings was the initiating of the investigation or the calling in of the police in relation to the contents of the video tapes.
I have considered the decisions of the Full Court in Mohazab v Dick Smith Electronics Pty Ltd, as set out in Gunnedah Shire Council v Grout, an unreported decision of the Full Court delivered on 19 December 1995 that:
an important feature of termination at the initiative of
the employer ‘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.
I do not accept that this test means that a resignation which takes place in circumstances where the employee’s conduct is under scrutiny and where termination of employment is a possible outcome, can never be voluntary. As the fact of examination by the Court of the evidence of the employer’s conduct in Grout and Mohazab reveal, each case depends upon an examination of the nature and degree of the respondent’s involvement in the applicant’s decision to leave the employment. It is a question of fact having regard to the individual circumstances of the case. That is particularly so in cases where, as in these cases before me, the terminations of employment do not fall within that class of terminations which have long been classified as constructive dismissals.
I am not satisfied that the termination of the employment in these matters was a termination of the type contemplated by the operation of s170EA of the Act. I am not satisfied that there was in any of these matters a termination of employment at the initiative of the employer. For the above reasons I dismissed the applications on 21 February 1996.
I certify that this and the preceding eleven (11) pages
are a true copy of the reasons for decision of
Judicial Registrar Parkinson.
Associate:
Dated: 27 February 1996
APPEARANCES
Solicitors for the applicants: Macpherson & Kelley
Counsel appearing for the applicants: Mr I Fehring
Solicitors for the respondent: Clayton Utz
Counsel appearing for the respondent: Mr T Ginnane
Dates of hearing: 19 & 20 February 1996
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