Winter v Cockburn Corporation Ltd
[1997] IRCA 199
•11 June 1997
DECISION NO:199/97
CATCHWORDS
INDUSTRIAL LAW -.TERMINATION OF EMPLOYMENT - complaint of UNLAWFUL TERMINATION - was TERMINATION OF EMPLOYMENT at the initiative of the employer
Workplace Relations Act 1996 (C'th) (formerly Industrial Relations Act 1988) Ss 170CB and 170EA
Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200
Termination of Employment Convention, 1982.
WINTER -v- COCKBURN CORPORATION LTD
WI 1021 of 1997
Before : RITTER JR
Place : MEEKATHARRA (heard in Perth)
Date of Judgment : 11 June 1997
IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1021 of 1997
B E T W E E N:
MARION EUGENE WINTER
Applicant
A N D:
COCKBURN CORPORATION LTD
Respondent
MINUTE OF ORDERS
11 June 1997 PERTH RITTER JR
THE COURT ORDERS THAT:
The application 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 )
WESTERN AUSTRALIA DISTRICT REGISTRY )
WI 1021 of 1997
B E T W E E N:
MARION EUGENE WINTER
Applicant
A N D:
COCKBURN CORPORATION LTD
Respondent
REASONS FOR DECISION
11 June 1997 RITTER JR
INTRODUCTION
This is an application under section 170EA of the Workplace Relations Act 1996 (the "Act") for a remedy for the allegedly unlawful termination of the applicant's employment by the respondent. The remedy sought is that of compensation, it being submitted that reinstatement of employment was impracticable; see section 170EE(2) of the Act. The respondent agreed that this was the appropriate remedy for the Court to consider if there was a finding of unlawful termination of employment.
The applicant was employed as the regional manager of the respondent in its pumps division located in Kalgoorlie. It was agreed that his employment lasted from 9 September 1996 to 15 November 1996. Although the applicant was described as the regional manager, there were no other branches of the pumps division of the respondent in the goldfields area, other than that situated at Kalgoorlie. The branch was involved in the hire, sale and repair of pumps. A general hire division of the respondent was located on the same site as the pumps division.
The principal issue at trial was whether the respondent terminated the employment of the applicant. The applicant contended that this was so. The respondent's contention was that the cessation of the applicant's employment occurred due to mutual agreement between the parties.
The applicant's case was presented first. The applicant gave evidence but no other witnesses were called on his behalf. The respondent called the following witnesses:
Mr Paul Donohoe, a workshop supervisor in the pumps division of the respondent in Kalgoorlie;
Mr Graham Thomas, the general manager of the respondent;
Ms Esther Armenti, a payroll officer with the respondent;
Mr Marco Bandiera, the national manager of the pumps division of the respondent;
Mr Phillip Sumich, the human resources manager of the respondent.
THE COURSE OF THE APPLICANT'S EMPLOYMENT
The applicant was employed by the respondent following an interview conducted by Mr Thomas.
As stated, Mr Winter commenced employment on 9 September 1996. At that time, Mr Donohoe and one other person were employed at the Kalgoorlie branch. Mr Winter said that when he commenced employment, the workshop "looked horrible". He said that there was a lack of order in the work place and aspects of it that were dangerous. Office systems were also lacking. Mr Winter said that he set about addressing these problems. This involved the employment of electrical contractors and secretarial staff, at some expense to the respondent. Mr Winter said that he had the approval of Mr Thomas in attending to these matters. Mr Winter said that when Mr Thomas attended at the branch, Mr Winter showed him what had been done and Mr Thomas said that he had done a good job. Mr Winter said that Mr Thomas came to visit the branch on two occasions prior to the termination of his employment. On both occasions, he indicated that he was happy with what Mr Winter was doing.
Mr Winter also said that Mr Bandiera came to Kalgoorlie on at least two occasions and that he also indicated that he was satisfied with what Mr Winter was doing.
In the first week in November, Mr Winter fainted at his home. He was taken to hospital so that some tests could be conducted. The tests did not disclose any particular health problems. However the doctors treating Mr Winter said that he should rest and they certified him unfit for work for one week.
Mr Winter's evidence was that his first day back at work was 15 November 1996, the day his employment was terminated. On this date, Mr Winter was expecting that other managers would be present in Kalgoorlie because there was to be a client golf day. When he attended for work, he saw Mr Bandiera and a Mr Daniel Flachhammer in his office. Mr Flachhammer was a sales manager of the respondent.
Mr Winter gave evidence about conversations that he had that morning with each of Mr Flachhammer, Mr Bandiera and Mr Thomas. He then alleged that Mr Thomas terminated his employment. Mr Winter's evidence about these matters will be set out later.
In his evidence-in-chief, Mr Winter did not give evidence about any aspects of his performance which had caused the respondent concern. Further, Mr Winter gave no evidence about a lengthy discussion that he had about his performance with Mr Bandiera on 6 November 1996.
During his cross-examination, a number of matters of concern that the respondent allegedly had with Mr Winter about his performance were put to him. Generally, Mr Winter did not accept that his performance was as suggested.
The matters put to Mr Winter included his failure to take a "hands-on" approach to his work at the branch, including working on the tools when necessary; taking excessive time off work to perform duties as a Justice of the Peace; finishing work early; failure to divert the telephone to an after-hours number; having a disagreement on the telephone with Mr Bandiera on 15 October 1996, when Mr Bandiera introduced himself, having commenced employment as the national manager of the pumps division; failing to follow the correct procedure in the employment of a Mr Thompson at the branch; failure to lock up the premises; failure to provide adequate service to Mr Nigel Gillard, of a client of the respondent's called Centaur Mining; failure to provide adequate service to a client called Monadelphous Engineering in relation to the issue of a credit and refusal to learn how to use the office computer.
Mr Winter was also cross examined about a meeting of approximately four hours that he had with Mr Bandiera on 6 November 1996. When first asked, Mr Winter denied that concerns were raised about his performance in this meeting. It was put to Mr Winter that at the meeting, the question of not diverting the telephone for after-hours service on 31 October 1996 was raised. It was put to Mr Winter that on that date, Mr Donohoe had travelled to a mine site run by Centaur Mining called Ora Banda to deliver a pump. Mr Donohoe tried a number of times to contact the branch but it was unattended and the telephone was not diverted. Mr Winter said that "maybe" this was raised at the meeting on 6 November 1996. Mr Winter also said that he did not know whether he was counselled at the meeting about failing to divert the telephone on a weekend when Mr Donohoe was at a wedding. Mr Winter was also asked whether at the meeting with Mr Bandiera an issue was raised about the service provided to Mr Nigel Gillard of Centaur Mining. Mr Winter responded "maybe" to this. Mr Winter accepted that at the meeting they "discussed a few matters in relation to the company". There was no re-examination about this meeting.
In his evidence, Mr Donohoe mentioned some matters of concern during the period of Mr Winter's management. He gave evidence of a pump that had to be repaired for Centaur Mining at Ora Banda. The pump was repaired on 23 September 1996 and was to be delivered on 24 September 1996. On that date, Mr Donohoe was ill and could not deliver the pump. Mr Gillard was on site to put the pump in and when it did not arrive, he was quite irate. Mr Donohoe indicated that Mr Winter could have organised a fitter to take the pump on 24 September but did not do so. Mr Donohoe said that a short time after that, Mr Gillard came in to talk to Mr Winter at the branch. Mr Donohoe witnessed part of the conversation between the two. Mr Donohoe said that Mr Gillard was not happy with Mr Winter's attitude.
Mr Donohoe also gave evidence about a difficulty he encountered on 31 October 1996. At that date, he was at the Centaur Mining site at Ora Banda when an issue arose which he needed to discuss with somebody at the branch. He telephoned the branch and there was no one answering the telephone. This was at about 4 pm. The telephone was neither answered nor diverted to another number where it could have been answered.
Mr Donohoe also gave evidence that Mr Winter's time-keeping was casual. He said that he was generally gone by 4.30 pm and took one hour for lunch. Mr Winter also left early on Saturdays.
Mr Donohoe gave evidence of another occasion on which the telephone had not been diverted on a weekend when he had been attending a wedding.
Mr Donohoe gave evidence about Mr Winter failing to lock up the premises properly on two or three occasions.
Mr Donohoe said he had a number of disagreements with Mr Winter about workshop cleanliness and how work should be done.
Mr Donohoe recalled that during the week of the Mining Expo in late October, Mr Winter said that he had to work in Court as a Justice of the Peace for two days. Mr Donohoe also said that there were several requests for quotations from prospective clients which Mr Winter had not provided prior to the cessation of his employment.
Mr Donohoe also said that Mr Winter did not process end-of-month reports because he was not interested in learning how to use the computer system. He said that he made several attempts to teach Mr Winter the computer system and that Mr Winter did not seem interested in listening to him.
Of his management style, Mr Donohoe said that Mr Winter was very aggressive and not keen to listen to another person's point of view.
Mr Donohoe said that on several occasions Mr Winter spoke to him about his future with the respondent. Mr Winter said that he "realised that he was on the way out". He asked Mr Donohoe whether he thought Mr Winter should quit. He also said that if he was dismissed, he would make a claim for unfair dismissal. These conversations were denied by Mr Winter when he was cross examined.
Mr Donohoe did not significantly change ground on any of these issues when cross examined. There is therefore a significant difference between his evidence and that of Mr Winter. In general I prefer the evidence of Mr Donohoe. He gave his evidence in a clear, straightforward and, I thought, unexaggerated fashion. At times in cross examination, he was prepared to frankly concede things which were not necessarily in the respondent's interests. However I was not impressed with Mr Winter's evidence for reasons which I will set out later.
Mr Bandiera commenced as the national manager of the pumps division of the respondent on 14 October 1996. He had previously worked for the respondent for about 18 months, finishing in March 1996.
Mr Bandiera said that he had a telephone conversation with Mr Winter on 15 October 1996. The telephone conversation was to discuss with Mr Winter his employment of a trades assistant. Mr Bandiera said that Mr Winter had not followed the correct procedure in employing the trades assistant. Mr Bandiera said that Mr Winter was very abusive when he raised this matter. Mr Bandiera said that it was almost impossible to talk to him. Mr Winter was bashing the phone against a table or wall and sarcastically said "are you Graham Thomas", questioning Mr Bandiera's authority. Mr Bandiera said that he was left with no choice but to firmly instruct Mr Winter as to how he was to act in relation to the employee, but when he did so, Mr Winter threatened his resignation.
On 21 October 1996, Mr Bandiera went to Kalgoorlie for the Mining Week Expo. He then met Mr Winter. He said that their meeting on that date was brief but friendly. Mr Bandiera said that he and Mr Winter had "made peace" over the telephone on a subsequent occasion after their initial disagreement on 15 October 1996.
Mr Bandiera said that the respondent had an exhibition stand at the Expo. On one day during the week, Mr Bandiera asked Mr Winter if he could give assistance at the stand. Mr Winter agreed to do that, but then, as far as Mr Bandiera was aware, spent about five minutes at the stand and was unable to be located for the rest of the day. When this was later questioned with Mr Winter, he said that he had been walking about the Expo.
During the course of that week, Mr Bandiera also learned from Mr Winter about his attendance at Court for his duties as a Justice of the Peace. Mr Bandiera had been previously unaware of this. Mr Winter told him that he had cleared the matter with Mr Thomas at his initial interview. Mr Bandiera telephoned Mr Thomas who was quite surprised about this claim.
Mr Bandiera also gave evidence about an occasion during Mining Week when he returned from the Expo to the branch to attend to something. Mr Winter was about to leave the premises and was asked by Mr Bandiera if he could unlock it for him. It was then ascertained that the premises were not actually locked. Mr Bandiera was concerned about that. He raised it with Mr Winter. However, later the same afternoon, Mr Bandiera ascertained that Mr Winter had again not locked the premises.
That afternoon there was a discussion about the amount of time that Mr Winter had to spend in attending to his duties as a Justice of the Peace at the Court. Mr Bandiera said that Mr Winter could not give him an estimate on how much time his duties would continue to take up.
Mr Bandiera also said that Mr Winter did not seem to take any responsibility for the day-to-day running of the branch.
Mr Bandiera said that on 6 November 1996, he had a meeting with Mr Winter to discuss various problems that had arisen. Mr Bandiera said that much of this was about the considerable amount of time Mr Winter spent away from the branch which was unaccounted for. Mr Bandiera said that he had a four-hour meeting with Mr Winter. Through part of the meeting they had been yelling at each other. However, a lot of ground had been covered. The main concerns put to Mr Winter were the hours worked and customer service. Mr Bandiera said that he put to Mr Winter that he had noted that he had taken off about six hours during the Expo Week. Mr Winter said that he felt that as a key member of the management team, he would be able to take hours off and make them up in other ways. Mr Bandiera questioned how he was going to be able to do that.
Mr Bandiera also discussed employment procedures with Mr Winter.
Mr Bandiera and Mr Winter also discussed a draft job description for Mr Winter that Mr Bandiera had prepared. The document said that Mr Winter was to have a "hands-on" role. However, Mr Winter said that in his interview with Mr Thomas, this was discussed and he was not to be in a "hands-on" position. Mr Bandiera indicated that he later raised this with Mr Thomas, who disagreed.
Mr Bandiera also discussed with Mr Winter costs that had been incurred since Mr Winter had joined the branch.
Mr Bandiera also gave evidence of a site visit at Centaur Mining and a discussion with Mr Gillard. Mr Gillard told Mr Bandiera that he had had poor service from Mr Winter and that he would continue to use Cockburn Pumps only if he did not have to deal with Mr Winter.
However, the issue of Centaur Mining and Mr Gillard was not discussed with Mr Winter. This was because it was only after their meeting that Mr Bandiera visited Centaur Mining and was informed by Mr Gillard of his view of Mr Winter.
After the meeting with Mr Winter, Mr Bandiera sent a facsimile to Mr Thomas. The facsimile requested that Mr Thomas organise for two letters of warning to be sent to Mr Winter. The facsimile set out two issues. The first was the leaving of the branch unattended and not diverting the telephone for after-hours service on 26 October 1996 and 31 October 1996. The second related to the information Mr Bandiera got from the meeting with Mr Gillard on 6 November 1996. A facsimile confirmation report indicated that the letter was sent by facsimile to Mr Thomas at 7.43 am on 7 November 1996. I will later set out Mr Thomas' response to the receipt of this.
Mr Bandiera said that at the end of the meeting with Mr Winter on 6 November 1996, there was a "very positive outcome".
When he gave evidence, Mr Thomas was asked of his involvement with Mr Winter from the time of the commencement of his employment to when Mr Bandiera started. Mr Thomas said that he had one to two trips to Kalgoorlie and had spoken to Mr Winter about a number of issues. He said he also had contact by telephone and Mr Winter had come to Perth for a two-day training course. During that period, he had a meeting with Mr Winter.
Mr Thomas said that he discussed with Mr Winter the engagement of Skilled Engineering to do a workshop clean-up and the hiring of a secretarial service. Mr Thomas said he raised the issues of expense and with respect to the office, that most managers in a "hands-on" role would sort it out themselves during the course of their employment. Mr Winter indicated that he did not think that this was part of his responsibility. Mr Thomas said that there were no other problems that surfaced with Mr Winter prior to the commencement of Mr Bandiera. Mr Thomas said that this was "when the problems really started to surface".
Mr Thomas acknowledged receiving from Mr Bandiera the facsimile dated 7 November 1996. He then spoke to Mr Bandiera about it. Mr Thomas was concerned about the contents of the facsimile. In particular, he was concerned about the relationship between Mr Winter and Mr Gillard because Centaur Mining was one of the largest customers of the hire division. Therefore, Mr Thomas passed the facsimile on to Mr Sumich of the human resources department to prepare a written warning for Mr Winter.
Mr Sumich prepared such a letter. A copy of this letter was tendered to the Court. It was dated 18 November 1996. Mr Thomas explained that the reason for this was that the originally-prepared letter could not be submitted to Mr Winter because of his illness and his time off work. The letter was therefore going to be given to Mr Winter after his return. This explained it’s date. However, it was not given to Mr Winter, according to the evidence of Mr Thomas, due to the agreed separation on 15 November 1996.
Mr Sumich's evidence was confirmatory of this. He said that he received from Mr Thomas the facsimile that Mr Bandiera had sent to him. He also discussed the matter with Mr Bandiera and drafted a letter of warning. He also agreed that the letter was ultimately dated 18 November 1996 because of Mr Winter's illness and time off work. Mr Sumich said that the letter was written as a warning letter. It was hoped that Mr Winter would take heed of the contents of the letter and improve his performance.
The letter that was drafted was to be signed by Mr Bandiera. The letter stated that it was "to bring to your attention shortcomings in your current performance which I have raised with you and require to be addressed". The letter referred to warnings with respect to two matters. The first was leaving the branch unattended and the phone undiverted on 3 October 1996 and leaving the phone undiverted on the weekend of 26 and 27 October 1996. The second was providing an unsatisfactory level of customer service to Mr Gillard of Centaur Mining on 16 October 1996. The letter required Mr Winter to make a significant improvement in four named areas. These were:-
Ensuring that the branch is manned at all times when it is open for business;
Ensuring the after-hours phone is diverted so that customers can access the after-hours service;
Providing positive, polite and helpful service to our customers at all times; and
As Mr Nigel Gillard had stated that he would only continue to deal with Cockburn Pumps if he does not have future contact with you, that you do not contact Mr Gillard and ensure that Paul Donohoe deals with his enquiries and orders.
The letter stated that the situation would be reviewed again on 18 December 1996. The letter indicated that if there was not significant improvement, there may be no option but for termination of employment. However, the letter concluded with an expression of hope that Mr Winter's performance would improve.
THE CESSATION OF EMPLOYMENT
Mr Winter, Mr Bandiera and Mr Thomas all gave evidence about the cessation of Mr Winter's employment. It was agreed that this occurred on 15 November 1996.
As set out earlier, that was the first morning that Mr Winter re-attended for work after his illness and recuperation. When he attended at his office that morning, Mr Bandiera and Mr Flachhammer were there. Mr Winter anticipated that they would be there for the client golf day. Mr Winter asked Mr Bandiera what he was to do that day. Mr Bandiera told him to commence with data inputting on the computer. Mr Bandiera then left the office and Mr Winter spoke with Mr Flachhammer.
Mr Winter said that Mr Flachhammer told him that there had been four or five people in managerial positions in Perth who had been retrenched. Mr Flachhammer also said that there was going to be another termination in Kalgoorlie. Mr Flachhammer would not tell him who the person was but said that he had got his information from a regional manager in Kalgoorlie; presumably of the hire division of the respondent.
About 15 to 20 minutes later Mr Bandiera came back again. Mr Winter spoke to Mr Bandiera and asked him whether somebody would be terminated in Kalgoorlie. Mr Bandiera said to him that he did not have to be worried, there would be no one terminated in Kalgoorlie. Mr Winter said that this conversation was between 8.30 to 9.30 am. Mr Winter said that he continued working on the computer and also discussing things with Mr Bandiera. Mr Winter said that he was a bit tense and unsure as to what his role would be, now that Mr Bandiera was the national manager. Mr Bandiera reassured him that the future was bright. Mr Winter asked Mr Bandiera about the areas that he was going to be working on. Mr Bandiera indicated that he would not be working on sales and made a complaint about a visit of Mr Winter to Western Mining. Discussion about other matters continued.
At this time Mr Winter noticed Mr Thomas in the compound. Mr Thomas came into the office briefly and then left again. Mr Winter and Mr Bandiera then remained in the office. Mr Thomas returned to the office and Mr Winter indicated that he wanted to discuss his role with Mr Thomas. Mr Thomas suggested that they go outside. Mr Winter said that he then explained to Mr Thomas that he was anxious about his situation and other work matters. Mr Winter said that Mr Thomas' response was a bit "wishy-washy" in that he did not commit himself very much. Mr Thomas said something about the shareholders expecting more of the company. After the conversation, Mr Winter returned to his office and Mr Thomas went back to the hire division. Mr Bandiera was still in the office. About half an hour later Mr Thomas returned to the office. Mr Winter said in evidence that:-
"Mr Thomas came back into the office and - and this was what really stunned me, it was then that he said that my employment is terminated and I should pack up my - I - my - I should pack up my things on the desk . . ."
It was then agreed that Mr Thomas would accompany Mr Winter as he drove home. Mr Winter said that there was no conversation about him accepting two months' pay as compensation for the cessation of his employment. A few days later, Mr Winter received a document from the respondent indicating a "redundancy payment". It was accepted that the amount of the payout approximated two months' salary. Mr Winter also received an employment separation certificate to be given to the Commonwealth Employment Service. I will refer to the evidence about this document later.
Mr Winter said that he consulted a lawyer on 18 November 1996 about the termination of his employment.
When cross examined, it was put to Mr Winter that during his first conversation on 15 November 1996 with Mr Thomas, he had advised him that the respondent should close the pumps division and "move everything back to the general hire division". Mr Winter replied, "in a different fashion". It was also put to Mr Winter that he told Mr Thomas that he did not want to take a "hands-on" approach to the work. Mr Winter replied that he definitely said that he did not want to work in the workshop as a "hands-on" fitter, because it was not his role and duty to do so. The respondent's case as to how the cessation of employment came about, as will be set out below, was put to Mr Winter, but rejected by him. Mr Winter agreed that Mr Thomas accompanied him when he drove home. Mr Winter accepted that when he arrived home, he invited Mr Thomas in to his house and introduced him to his wife.
The evidence of Mr Bandiera and Mr Thomas about the cessation of employment was quite different to that of Mr Winter.
Mr Bandiera said that when he arrived at the branch that day, he noticed Mr Winter and Mr Thomas having a heated discussion in the workshop. He was not sure what they were discussing but decided to steer clear of them. Mr Bandiera went into the pumps division office. Mr Winter then entered the office. Mr Winter began to discuss with him the future of Cockburn Pumps. Mr Winter said that the best bet would be to close the business down and put the hire equipment into general hire and amalgamate the two to share the costs of running a branch. Mr Winter also said that he was getting too old to be working "hands-on". Mr Winter told Mr Bandiera that he had his house paid for and did not want to work any more. He then said "I'll go if you make it sweet for me". Mr Bandiera said that he thought that that meant money. Mr Bandiera said that he was quite shocked about this because he did have "big plans for Mr Winter" to try and establish Cockburn Pumps further into the mining industry.
Mr Bandiera then left the pumps division office and went to the general hire office and spoke to Mr Thomas. Mr Thomas told Mr Bandiera that his conversation with Mr Winter was similar in that he was saying that Cockburn Pumps did not have a future and should close down. Mr Thomas indicated that he had told Mr Winter to think about his future and that he would talk to Mr Winter later on in the morning to see if he had made a decision. Mr Bandiera said that with the information that he gave to Mr Thomas, it appeared that he had made his decision and did not want to work any longer. Mr Bandiera then returned to the office of Cockburn Pumps. At about 10 o'clock Mr Thomas entered the office and sat down with Mr Winter and himself. Mr Thomas said to Mr Winter that he believed that he had made a decision and Mr Winter said "yes, he was prepared to go". Mr Thomas said that if he offered Mr Winter a month plus a month's pay, would he be happy with that. Mr Winter said that he would be happy with that. Mr Thomas also said "with that, you'll have no comeback on us". Mr Bandiera said that Mr Winter appeared to be totally relieved and very happy. Mr Bandiera also recalled Mr Thomas making mention of Mr Winter being an honourable man during the conversation.
During cross examination, Mr Bandiera adhered to his version of events.
Mr Bandiera's evidence was generally supported by that of Mr Thomas. However, one area of difference was that Mr Thomas said that Mr Bandiera was in the pumps division office with Mr Winter when he first began talking with Mr Winter. However, little turns on this discrepancy. Mr Thomas said that at approximately 8.20 am he went to the office of the pumps division where Mr Winter, Mr Bandiera and Mr Flachhammer were situated. Mr Thomas began to speak to Mr Winter about the business. They then proceeded to move outside. Mr Thomas said that at that time Mr Winter became agitated and said that the pumps division did not have a future and that he did not have a future in it. Mr Winter indicated that the respondent should close down the pumps division and move the pumps hire side back into the hire branch. Mr Thomas also thought that Mr Winter was in an agitated state because of the lengthy meeting that he had with Mr Bandiera prior to his illness. Mr Thomas asked him what he thought needed to be done to change the business. He then got the response referred to. The discussion in the workshop area took about twenty minutes. Mr Thomas said that the option kept coming up from Mr Winter that he felt that he had no future in the pumps division and that it should be closed and moved back into hire division. Mr Thomas said that it was a big decision for Mr Winter to make, if he wanted to depart from the organisation. Mr Thomas said that it was best that Mr Winter should think about this and he would come back later to see what Mr Winter's answer was.
Mr Thomas said that at the hire division, a little later, Mr Bandiera told him that "if Mr Winter was to go, we needed to make it sweet". Mr Thomas then telephoned Mr Sumich who was at Port Hedland at the time. He informed Mr Sumich that he had some discussions with Mr Winter and that it had looked like they would come to a mutual agreement in terms of separation. Mr Thomas asked Mr Sumich of the best procedures to go through. Mr Sumich informed him that if there was a mutual agreement, then that would be fine.
Mr Thomas returned to see Mr Winter at about 10.10 or 10.15 am. He saw him in the pumps division office. Mr Bandiera was also present. He asked Mr Winter whether he had had time to think about their discussion. Mr Winter looked up with a blank expression on his face. Then Mr Thomas said that he told Mr Winter that if they had a mutual separation agreement, the respondent would offer Mr Winter one month's salary and another month's salary in lieu of notice. Mr Thomas said in evidence that an additional month's salary was offered because Mr Bandiera had told him that he needed to "make it sweet". Mr Thomas also said in evidence that this was "a gesture to say: well, okay, we've made a mutual agreement here, then I'm prepared to pay an additional month's salary". Mr Thomas said that he asked Mr Winter if it was acceptable and he said it was. Mr Thomas said that he shook Mr Winter's hand as a gentlemen's agreement. He said that he made the statement that he did not need to put anything in writing because Mr Winter was a Justice of the Peace and Mr Thomas believed him to be an honest and ethical person. Shortly after that, Mr Thomas and Mr Winter left the premises and drove back to Mr Winter's house in Coolgardie. Mr Thomas said that during the trip, Mr Winter requested that his payout be done in the most tax-effective way possible. Mr Thomas said that he would check with his payroll officer to see what could be done.
Mr Thomas said that when they arrived at Coolgardie, he and Mr Winter were "on very nice terms". Mr Winter invited him into his house and he met Mr Winter's wife who was working on a computer in a studio at the back of the house. After about twenty minutes at the house, they shook hands again and Mr Thomas departed. Mr Thomas said that he felt very comfortable that the issue was at rest.
Mr Thomas said that on his return to Kalgoorlie, he telephoned the payroll officer, Ms Esther Armenti. He gave instructions that Mr Winter had arrived at a mutually-agreeable separation from the respondent and asked if she could do a payout based on one-month's salary and one-month's salary in lieu of notice. He also asked that she do it in the most tax-effective way possible.
When cross examined, Mr Thomas did not differ from his version of events. It also emerged in cross examination that Mr Thomas was well aware of the stages that an employer ought to go through to validly terminate the employment of an employee. Mr Thomas maintained that he had no intention of terminating Mr Winter's employment on 15 November 1996, and that he did not do so. He asserted that the mutual agreement to separate simply came about as a result of discussions had that morning.
Mr Sumich gave evidence of his telephone conversation with Mr Thomas on 15 November. This evidence was given without objection by counsel for the applicant. Mr Sumich said that he was in Port Hedland on that morning when Mr Thomas called him at about 9.30 am. Mr Thomas explained that he was in the Kalgoorlie hire branch and from conversations it appeared that Mr Winter would be happy to leave the respondent if a settlement could be agreed upon. Mr Thomas asked Mr Sumich his advice. Mr Sumich replied that if Mr Winter left the respondent by an agreed settlement, this would be fine. Mr Sumich said that Mr Thomas had telephoned him to make sure that things were done correctly. The evidence of Mr Sumich fits in with the evidence of Mr Thomas and Mr Bandiera as to the course of events that morning.
The applicant submitted that his version of the events of that morning was supported by the Employment Separation Certificate that was prepared by the respondent for the Department of Social Security. This was a pro forma Department of Social Security document, completed by Ms Armenti on behalf of the respondent and dated 18 November 1996. On the document, it indicated that Mr Winter did not cease work voluntarily. It also indicated that employment was terminated due to shortage of work.
I have earlier set out the communication that Mr Thomas had with Ms Armenti on 15 November 1996. Mr Thomas had no other input into the preparation of this document.
When she gave evidence, Ms Armenti said that she did not specifically recall the preparation of this separation certificate, it being some months since it was prepared. She was asked whether she recalled receiving any instructions from Mr Thomas regarding Mr Winter. She did not specifically recall any but said that if an employee's employment was terminated, she would ordinarily get instructions from someone about this, and it could have been Mr Thomas in this instance.
When cross examined, Ms Armenti was asked why the separation certificate was completed in the way it was. She said that in preparing such documents, she normally ticked the box "shortage of work" because this was generally the reason why employees were terminated. She said that in most cases this is the reason for termination.
Given the evidence of Mr Thomas and Ms Armenti, I am not satisfied that the Employment Separation Certificate, of itself, corroborates the evidence of Mr Winter that he did not cease employment voluntarily. It is quite possible that Ms Armenti indicated on the document that the cessation of employment was not voluntary and was due to shortage of work because this is the way in which she ordinarily completed such documents. In my opinion, the way in which she completed the document does not necessarily reflect any instructions she received from Mr Thomas as to the circumstances of the termination of Mr Winter's employment.
DETERMINATION OF THE CONFLICT IN THE EVIDENCE
I have carefully considered the evidence of Mr Winter, Mr Bandiera and Mr Thomas and have decided that I prefer the evidence of Mr Bandiera and Mr Thomas. This is for the following reasons:-
I thought that Mr Thomas and Mr Bandiera in general gave their evidence in a straight forward and unexaggerated fashion. In contrast, Mr Winter, when cross examined in particular was at times in my opinion evasive and argumentative. It appeared that Mr Winter wished to evade answering questions, in fear of the implications that could be drawn from his answers. In saying this, I have taken into account that Mr Winter is of German origin and that English is not his native language. However, it seemed to me that the way in which Mr Winter gave his evidence was not a product of any language difficulty or cultural reason.
In his evidence-in-chief, Mr Winter did not disclose the fact of the conversation about his performance with Mr Bandiera on 6 November 1996. When asked about the meeting in cross examination, Mr Winter gave evasive and non-committal answers. In my opinion, Mr Winter was endeavouring to try and avoid full disclosure of this meeting to the Court. In my opinion, this affects Mr Winter's credibility generally.
If Mr Winter's version of events is correct, then Mr Bandiera and Mr Thomas have both given false evidence about the events of 15 November 1996. There was nothing about either the content of their evidence or the way in which they gave it which supports such a proposition. Further, the evidence of Mr Sumich supported the evidence of Mr Thomas and Mr Bandiera. If the version of events was as stated by Mr Winter, there would have been no need for Mr Thomas to have made the telephone call to Mr Sumich which he did. If Mr Winter's version of events is correct, then the only explanation for the telephone call to Mr Sumich is that Mr Thomas was at that stage endeavouring to manufacture evidence in support of a bogus claim that there was an agreed separation. I regard this as most unlikely. It is far more likely that the events occurred as stated by Mr Thomas and Mr Bandiera and that Mr Thomas was telephoning Mr Sumich to check upon the implications of an agreed separation with Mr Winter.
As set out earlier, in the circumstances, I do not accept that the Employment Separation Certificate is necessarily supportive of the applicant's case.
On the applicant's evidence to the Court, the respondent did not indicate any great dissatisfaction with his conduct or performance prior to the termination of his employment. If this is so, it is unlikely that Mr Thomas would have turned around and terminated Mr Winter's employment without warning or reason, as he alleged in his evidence.
The fact that Mr Winter was paid two months' salary on the cessation of his employment is consistent with the evidence of Mr Thomas and Mr Bandiera. There is no other explanation of why this amount was paid. On Mr Winter's version of events, he received this amount without knowledge or understanding as to why he was receiving it. I regard this as a far less likely scenario than the version given by Mr Thomas and Mr Bandiera.
Mr Winter agreed with the proposition that after he and Mr Thomas travelled to his home, he invited Mr Thomas into his house and introduced him to his wife. I regard this as being unlikely to have occurred if Mr Thomas had terminated Mr Winter's employment without warning or reason, as Mr Winter suggested in his evidence.
The suggested termination of Mr Winter's employment without warning is inconsistent with the clear evidence that the respondent intended to give Mr Winter a written warning in relation to his conduct and performance. I regard it as unlikely that Mr Thomas would have terminated Mr Winter's employment on 15 November 1996 after having set in train the processes necessary for the written warning to have been given to Mr Winter. Mr Thomas also gave evidence, which was not challenged in cross examination, that he understood the processes which ought ordinarily be gone through in terminating employment. There is no credible explanation for Mr Thomas then deciding to terminate Mr Winter's employment contrary to such processes.
It was submitted by the applicant that it was inconsistent with Mr Winter's determined character that he would simply resign a position that he commenced with enthusiasm some six weeks earlier. However, this submission ignores the fact that there was some disenchantment by Mr Winter with the respondent during that time period and that Mr Winter had also suffered the health scare that he did. Given these circumstances, I do not regard it as improbable that Mr Winter would agree to leave his employment with the respondent for the payment of two months' salary. Further, the point that the applicant makes applies with equal force to the respondent. That is, there is a potential inconsistency between the respondent enthusiastically welcoming Mr Winter to their employ some six weeks earlier and then terminating his employment without warning or reason being given.
It was also submitted by the applicant that his conduct in seeing solicitors on the Monday after the cessation of his employment corroborated his version of events. I do not necessarily accept that this is so. For example, if Mr Winter decided to manufacture evidence in support of an unlawful termination claim, he could well have decided to have done this by seeing solicitors on 18 November 1996.
It was also submitted that the expression that Mr Bandiera attributed to Mr Winter, "make it sweet" was one inherently unlikely to have been spoken by a native German speaker and likely to be a phrase unfamiliar to the applicant. I do not accept this. There is no evidence upon which such a finding could be made. The submission, in my opinion, is a matter of speculation. Mr Winter was not asked whether he knew what the expression meant.
The applicant submitted that in all the circumstances, including the personality difficulties that the applicant had to some extent with customers and staff of the respondent, and the conduct and performance matters which concerned the respondent, the respondent decided that it had made a mistake in deciding to employ the applicant and decided to terminate his employment. It is clear from the evidence that the respondent was having doubts about Mr Winter. However, I do not think that those doubts had crystallised into a decision to terminate Mr Winter's employment. The warning process that had commenced suggests that this had not occurred.
In my opinion, the evidence discloses that over the six weeks of Mr Winter's employment, there was some mutual disenchantment between Mr Winter and the respondent. Mr Winter's own evidence makes it clear that he was dissatisfied with the respondent to some degree. Likewise, the evidence from the Mr Bandiera and Mr Thomas shows that they were having doubts about Mr Winter. This mutual disenchantment makes it likely that both parties would have been receptive to the possibility of an agreed separation. In my opinion, that is what occurred on 15 November 1996, in the terms described by Mr Thomas and Mr Bandiera in their evidence.
TERMINATION OF EMPLOYMENT
AT THE INITIATIVE OF THE EMPLOYER?
Pursuant to section 170EA of the Act, an employee may only apply for a remedy in respect of the termination of their employment. The expression "termination of employment" is not defined for relevant purposes in the Act. However, section 170CB of the Act states that an expression has the same meaning in Division 3 of Part IVA of the Act as in the Termination of Employment Convention, 1982. In Article 3 of the Convention, the word "termination" and the expression "termination of employment" are stated to mean "termination of employment at the initiative of the employer".
The meaning of this expression was considered by the Full Court of the Industrial Relations Court of Australia in Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR 200. In relation to my finding set out below, I have borne that decision of the Court in mind.
In my opinion, in this case there was no termination of employment at the initiative of the employer. In my opinion, there was an agreed separation in which Mr Winter and the respondent were equally willing participants. It was not a case, in my opinion, where Mr Winter was pushed. It is clear that there was some dissatisfaction with Mr Winter's performance, as conveyed to him by Mr Bandiera on 6 November 1996. It is also clear that Mr Winter was to some extent disenchanted with the respondent. In addition to that, Mr Winter had the health scare referred to earlier. As set out in the previous section of this judgment, this combination of factors made it likely that the parties would be receptive to a mutual separation. On the morning of 15 November 1996, Mr Winter expressed his pessimism for the future of the pumps division and himself. Mr Thomas, having heard this, suggested that Mr Winter consider his future. It appears that Mr Winter did this and then suggested to Mr Bandiera that he would be prepared to cease his employment if the employer made it "sweet". This information was conveyed to Mr Thomas. Mr Thomas checked the position with Mr Sumich. Mr Thomas then spoke to Mr Winter to see if he was agreeable to a cessation of his employment for the payment of the equivalent of two months' salary. Mr Winter agreed to this. After the agreement was reached, Mr Winter appeared relaxed and content with his position, according to the evidence of Mr Bandiera.
In these circumstances, I am not satisfied that there was a termination of employment at the initiative of the employer. The actions of the employer were not the principal contributing cause to the cessation of the employment relationship. It was a case where the attitude and intentions of both parties equally contributed to an agreed separation.
CONCLUSION
As I have determined that Mr Winter's employment was not terminated at the initiative of the respondent, the application will be dismissed.
I certify that this and the preceding twenty-eight (28) pages
are a true copy of the reasons for decision of
Judicial Registrar Ritter.
Associate:
Date:
APPEARANCES
Counsel for the Applicant: Mr I Weldon
Solicitors for the Applicant: McKenzie Lalor
Representative for the Respondent: Mr A. Randles of the Chamber
of Commerce and Industry (WA)
Dates of hearing: 17, 18 and 19 February 1997
Date of judgment: 11 June 1997
h:\decision\wint1021.doc
0
2
0