Australian Municipal Administrative Clerical and Services Union v Western Australian Turf Club [1995] IRCA 97

C A T C H W O R D S

INDUSTRIAL LAW - Termination of Employment: resignation - whether resignation pressurised - whether Applicant intended to resign. INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170EA

GROUT -V- GUNNEDAH SHIRE COUNCIL (1994) 125 ALR 355

AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION -V- WESTERN AUSTRALIAN TURF CLUB No. WI282/1994 Judicial Registrar: L Farrell Place: Adelaide Date: 16th March 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI282 of 1994

B E T W E E N: AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION Applicant AND WESTERN AUSTRALIAN TURF CLUB Respondent MINUTES OF ORDER Judicial Registrar Farrell Dated: 16th March 1995

THE COURT ORDERS THAT: 1. The Application be dismissed. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules

INDUSTRIAL RELATIONS COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY

No. WI282/1994

B E T W E E N: AUSTRALIAN MUNICIPAL ADMINISTRATIVE CLERICAL AND SERVICES UNION Applicant AND WESTERN AUSTRALIAN TURF CLUB Respondent

BEFORE: JUDICIAL REGISTRAR FARRELL PLACE: ADELAIDE DATE: 16TH MARCH 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act 1988. The Applicant Union pursues this matter on behalf of Mr Nikola Sarafimoski. I will refer to Mr Sarafimoski as the "Applicant" hereafter. The Applicant seeks a declaration that the termination of his employment by the Respondent was unlawful. He also seeks reinstatement. Evidence was given by Mr Nikola Sarafimoski, the Applicant in this matter and by his son Aco Sarafimoski. Evidence for the Respondent was given by Mr G Murphy, the manager of the Respondent, Mr R Old, a supervisor employed by the Respondent, Mr Vuletta a supervisor employed by the Respondent and Mr G Menzies, the assistant manager of the Respondent. It was claimed by the Applicant that his employment was terminated on Thursday, 28th July 1994. He had been employed as a full-time cleaner/gardener by the Respondent since the 16th March 1988. The Respondent argued that the Applicant resigned from his employment. The Applicant was born in Macedonia. He has had very little formal education. On the 28th July 1994 the Applicant had an altercation with his supervisor, Mr Old. The evidence of the Respondents witnesses was as follows. Mr Old decided to issue an "Incident Notice". The Incident Notice appears to be something less than a formal warning. The Applicant stated that he was quitting and asked Mr Old how much notice he had to give. He then decided he would go and see the Manager, Mr Murphy. Later that morning Mr Old was summoned to Mr Murphy's office where Mr Murphy, Mr Menzies, Mr Old and Mr Sarafimoski had some discussions regarding the events that morning and the Applicant's resignation. The Applicant was told that if he was unable to work with Old then he should proceed with his resignation. During the course of the meeting the Applicant threatened to shoot Mr Old and he eventually signed a notice of resignation which had been prepared by Mr Murphy's secretary. He left the office and later that day he contacted Mr Menzies regarding his pay. The Applicant gave evidence that he did not realise that he had resigned until his son read his copy of the Notice of Resignation on the evening of 28th July 1994. The Applicant's son's evidence did not support him in that regard. His evidence was that he had never seen the Notice of Resignation and did not discuss the matter with his father at that time. The Applicant gave evidence that he left because he no longer wanted to work with Jim. The Applicant was evasive in some of his evidence. He could not remember or did not know if he quit whilst talking to Mr Old. The Applicant attended at the Respondent's offices on the following day to collect his pay. On the following Monday he contacted Mr Vuletta, the supervisor and Mr Murphy to see if he could have his job back. In relation to the Applicant's evidence I note that it was not always reliable. English is his second language and I accept that he was disadvantaged in his ability to communicate at that meeting and generally. The Applicant's counsel argued the following alternatives:- (1) There was no resignation by the worker on the 28th July 1994 because he signed the resignation form without knowing its contents. (2) That by signing the document he did not know he would be resigning. (3) He was given no option other than to sign the document. (4) He was pressurised into resigning and that amounts to a termination at the initiative of the employer. (5) The purported notice of resignation was ineffective at law because the Applicant gave one weeks notice of resignation and the Award which covered the employment of the Applicant being the Municipal Employees (Western Australia) Turf Club Award 1992 stated that the worker had to provide four weeks notice. (6) If the Applicant did resign he did so in the heat of the moment and recanted as soon as the heat had settled down. I am unable to accept that any of those arguments can succeed on the facts of this matter. I am unable to accept the applicant's evidence that he did not resign or intend to resign on 28th July 1994 and that the first time he knew that he had resigned was in the evening when his son explained the document to him. That evidence is inconsistent with the evidence of all the other witnesses who gave evidence about that day including the applicant's son. It is also inconsistent with his subsequent actions. With respect to the fifth argument the Applicant's counsel referred to the decision of Moore J. in Grout v Gunnedah Shire Council (1994) 125 ALR 355 . That case concerned a different situation. In that case the Notice of Resignation was forwarded to the employer in circumstances whereby the employer was unable to consent to a shorter period of notice being given. That is not the case in this matter. Here the Respondent waived its right to notice as provided by the Award. I do not accept that the Applicant was pressurised into resigning. He no longer wanted to work with Mr Old. He did not like the way Mr Old treated him. That is why he had resigned. I do not think that the treatment of the Applicant by Mr Old was of so serious a nature as to render the voluntary leaving of employment to be a termination by the employer. With respect to the 6th argument of the Applicant I note that it was at least one hour between the Applicant telling Mr Old that he was quitting and his signing the written notice of termination. Also the Applicant did not attempt to withdraw his resignation until some days after it was given. The evidence of Mr Menzies was that the Applicant contacted him by telephone on the afternoon of 28th July 1994 and that he attended the office of the Respondent on the 29th July 1994 to collect his final pay and it was not until the following week that he sought to withdraw his resignation. I think that the interview during which the Applicant resigned was poorly conducted by the Respondent's representatives and the Applicant's resignation was clearly an outcome desired by them. However, none of their conduct was sufficient for me to find that this was a termination at the initiative of the employer. For these reasons I find that the Applicant's employment was not terminated by the employer and therefore the Application is dismissed. I will not proceed to deal with the Applicant's arguments regarding substantive or procedural fairness in respect of this matter.