William Boyd v Godfrey Hirst Australia Pty Ltd William Boyd v Tybar Engineering Pty Ltd

[1995] IRCA 14

CATCHWORDS

INDUSTRIAL LAW - Termination of employment - whether employee had abandoned employment - no valid reason for termination - reinstatement.

Industrial Relations Act 1988, ss.170DE and 170EE.

WILLIAM BOYD -v- GODFREY HIRST AUSTRALIA PTY LTD
WILLIAM BOYD -v- TYBAR ENGINEERING PTY LTD

NO. VI 246 of 1994
NO. VI 247 of 1994

Before:  STAINDL JR

Place:    MELBOURNE

Date:     30 JANUARY 1995

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 246 of 1994
VI 247 of 1994

BETWEEN:

WILLIAM BOYD
Applicant

AND

GODFREY HIRST AUSTRALIA PTY LTD
AND TYBAR ENGINEERING PTY LTD
Respondents

MINUTES OF ORDER

30 January 1995  Judicial Registrar Staindl

THE COURT DECLARES:

That the termination of the Applicant’s employment by the Respondents contravened Division 3 of Part VIA of the Industrial Relations Act 1988.

THE COURT ORDERS:

1. That the respondents reinstate the applicant by reappointing him to the position in which he was employed immediately before the termination of his employment.

2. That the respondents pay to the applicant the remuneration he would have received but for the termination.

3. That the applicant’s employment with the respondents be treated as being continuous for all purposes.

4. Liberty to apply to the Court upon 48 hours notice in writing to the other side.

NOTE:  Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.

INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

VI 246 of 1994
VI 247 of 1994

BETWEEN:

WILLIAM BOYD
Applicant

AND

GODFREY HIRST AUSTRALIA PTY LTD
AND TYBAR ENGINEERING PTY LTD
Respondents

REASONS FOR JUDGMENT

30 January 1995  Judicial Registrar Staindl

William Boyd commenced employment with Godfrey Hirst Australia Pty Ltd (“the company”) on 22 July 1991.  He was employed as a plant administration manager at the company’s Geelong plant.  The company manufactures yarn and carpets and in 1994 employed about 1,200 people.  The applicant continued to perform this role throughout his employment although at other times also took on other duties.  In late 1991/early 1992 he took on the additional role of mill administrator, the mill being one part of the operations carried out at the plant.  In about mid 1992 he was appointed the general manager of the mill.

In January 1994 the applicant was appointed manager of Tybar Engineering Pty Ltd (“Tybar”).  Tybar was a company within the Godfrey Hirst Group of companies and it had previously been responsible for carrying out research and development.  However it was decided that Tybar was to take over the maintenance of Godfrey Hirst’s plant and equipment at Geelong.  This maintenance involved the servicing of the plant and machinery by such persons as fitters and electricians.  The applicant was told to “tighten up” the maintenance operations and to reduce the numbers of employees if appropriate.  His instructions included consideration being given to the use of outside contractors.

The applicant gave evidence that he reported primarily to Mr Ian Bartlett but also reported to Mr George McKendrick, the Chief Executive Officer of Godfrey Hirst Pty Ltd.  The applicant described his relationship with Mr McKendrick as “not particularly bitter” although said it could be volatile.  At times they had clashed verbally.

On 18 April 1994 at about 11:00am the applicant was called over to Mr McKendrick’s office.  Mr Craig Herbert and Mr Peter Wasylewski were also present.  Mr McKendrick asked some questions about the operations of Tybar and the applicant responded to such questions.  This discussion was on reasonable terms.  Such is largely common ground between those present at the discussion.  However there is considerable divergence in the evidence as to what then happened.  It is clear there was a heated argument between the applicant and Mr McKendrick although I am unable to identify the reason for such argument.  It is also clear to me from the demeanour  of the witnesses that the applicant and Mr McKendrick are both very strong willed individuals:  as much was conceded by counsel for both sides.

My strong impression of Mr McKendrick was someone who could not tolerate any disagreement with, or dissension from his decisions, and he would react quickly to any such perceived dissension.  On the other hand, although the applicant denied that he frequently lost his temper, I am of the view that he could fairly be described as hot tempered.

To some extent the argument which occurred was due to these two strong willed individuals each being determined to “have the last word”.  The applicant’s version of the meeting was that Mr McKendrick said that he (the applicant) always wanted to have the last word and he would not have it.  I accept this part of the evidence.  The applicant states that Mr McKendrick then said that he should quit and that he refused to do so.  This evidence is confirmed by Mr Craig Herbert, The Personnel and Training Manager who was called to give evidence by the respondent,  and I accept this evidence.  However the applicant’s version is that Mr McKendrick then told him “You’re fired”.  I do not accept that Mr McKendrick said these words, although I accept that he said “Get out” and “You’re finished”.  This was confirmed at least in part by the witness Mr Craig Herbert and the evidence of Mr Peter Wasylewski.  However the respondent argued that the whole discussion concerned the operations of Tybar and the applicant’s responsibilities with Tybar.  When he was told “You’re finished” this was said to be only in relation to the applicant’s position with Tybar.

Shortly after this the applicant spoke to Mr Rod Stephens.  Mr Stephens’ recollection was that the applicant told him he had had a disagreement and his impression was that the applicant did not know what was happening.  The applicant also spoke to Mr Peter Dunne by telephone.  I accept Mr Dunne’s evidence that the Applicant at some stage used the word “suspended” in relation to his employment during this conversation.  It seems to me that following the argument with Mr McKendrick the applicant was uncertain of his employment status with the company.

In a conversation with Mr Craig Herbert the applicant was told to clear out his desk and report to the personnel office in another building.  Mr Herbert gave evidence that this was merely a change of office, taking into account the fact that he no longer had any duties to perform for Tybar.  In contrast the applicant saw this direction as being consistent with his dismissal.  However, whichever interpretation is correct it is clear that prior to leaving the company’s premises on 18 April the applicant was aware that there was a possibility that his employment with the company had not been terminated.  For the applicant conceded that in a subsequent conversation with Mr Herbert, he was told that he had only been fired as manager of Tybar.  His response to this was to say that this was only second hand information and that as far as he was concerned he had been fired.  The applicant then left the company’s premises.

The applicant was criticised strongly by Counsel for the respondent for not checking with Mr McKendrick prior to leaving the company’s premises.  In my view there is a deal of force in this criticism.  It was the obvious action to take prior to leaving the premises to see a solicitor.

In any event, the applicant arranged for an appointment, at short notice, with the firm of solicitors, Holding Redlich.  A carefully drafted and detailed letter was sent to Mr McKendrick by facsimile that afternoon (ie 18 April 1994).  It set out the applicant’s version of events in point form.  The letter then went on:

“In our opinion, by your actions at the meeting with our (sic) client this morning, you effectively terminated our client’s employment.  We note, however, having regard to the discussion between our client and Mr Herbert that there may be some ambiguity about whetter our client’s employment was terminated.  Accordingly, we seek your urgent confirmation as to our client’s position.  Of course, if your position is that our client’s employment continues, it follows that the position should carry with it the same salary and other terms and conditions of employment and that our client is also to carry out his duties on behalf of the company without the form of harassment you directed towards him this morning.

If you confirm that our client’s employment is still ongoing in acceptable terms, our client will resume his duties forthwith. If, on the other hand, you indicate that our client’s employment has been terminated, we will pursue the remedies available to our client under the Industrial Relations Reform Act. This Act, with which you may not be familiar, came into operation approximately two weeks ago and confers on persons in our client’s situation rights to seek reinstatement and compensation in circumstances where the employment has been terminated unfairly.

Unless we hear from you by close of business this coming Friday, the 22nd April, 1994, we are instructed by our client to commence proceedings against the Company forthwith.”

There was evidence that a reply was received to this letter after some days.  This reply stated essentially that the applicant had abandoned his employment, although the actual letter was not tendered in evidence.

It seems to me that the letter written on the applicant’s behalf demanded a prompt - if not immediate - reply.  It was sent on the very same day as the incident occurred.  The applicant offered to “resume his duties forthwith” if his employment had not been terminated.  Once the company had received such a letter it could not rely on any delay on its part to suggest that the applicant had abandoned his employment.  In my view given that the applicant left the company’s premises either in the late morning or early afternoon of 18 April and later that day indicated his preparedness to resume his duties forthwith, then it cannot be said that he has abandoned his employment.  For an employee to abandon his/her employment it must be clear that the employee has evinced an intention to no longer be bound by the terms of the contract of employment.  The situation in this case is quite different to an employee leaving his/her employment and not returning for a considerable time (if at all).  The applicant’s position was known within a few hours of his leaving the company’s premises: this time delay falls a long way short of an abandonment of employment.

Although I have criticised the applicant for not clarifying his employment status prior to leaving the company’s premises, far stronger criticism can be made of the company’s actions.  Upon receipt of the letter written on behalf of the applicant, it was incumbent upon the company to inform the applicant of his continuing employment.  The company could not simply sit on its laurels and then say this delay constituted an abandonment of employment.

Accordingly I am of the view that the applicant did not terminate his employment with the company.  The company’s actions in not allowing him to continue his employment amounted to a termination of the applicant’s employment for which there was no valid reason.  This constitutes a contravention of subsection 170DE(1) of the Act.

Remedy

Section 170EE makes reinstatement the primary remedy once there is a finding that there has been a contravention of the unfair dismissal provisions. The applicant in this case seeks reinstatement and I see no reason why this remedy should not be granted. Mr McKendrick gave evidence that reinstatement of the applicant would create difficulties: in my view there would need to be far more cogent reasons given to justify a finding that reinstatement is impracticable pursuant to subsection 170EE(2).

There will be orders to reinstate the applicant and to provide for the remuneration lost because of the termination.  There will be liberty to apply to the Court if any clarification is needed in respect to such orders.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment of Judicial Registrar Staindl.

Associate:

Dated:               

Solicitors for the Applicant: Counsel for the Applicant:	Holding Redlich Mr B. Shaw
Solicitor for the Respondent Counsel for the Respondent:	Middletons Moore & Bevins Mr F. Turner
Dates of hearing:	21 November 1994
Date of Judgment:	30 January 1995