INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2491 of 1994 B E T W E E N : ROGER BLACKEY Applicant AND DAVIDSON LIGHTING SYSTEMS PTY LTD Respondent Before: Judicial Registrar Murphy Place: Melbourne Date: 24 April 1995 REASONS FOR JUDGMENT (EXTEMPORE - REVISED FROM TRANSCRIPT) Introduction The central issue in this application is whether the applicant resigned from his position or was terminated. Prior to October 1994 the applicant had been employed by Burn Brite Ltd, as factory manager. He was approached by a firm of personnel consultants and after two meetings with Mr Davidson, ("Davidson"), the Managing Director and Mr Kendry ("Kendry"), Sales Manager of the respondent, was offered a position with it as Production Manager. He commenced in that position in October 1994. According to the applicant's evidence, after he commenced employment there were difficulties within the respondent's operation. He brought these to the attention of Davidson, in the form of a memorandum, which was dated 30 October 1994. Davidson's evidence was that he could not recall receiving the memorandum, which contains a detailed list of comments, criticisms and suggestions. On the applicant's evidence, there was discussion between he and Davidson over the period of his employment as to the operations of the respondent. The applicant gave evidence that in one of those conversations, Davidson said that he was floundering and that in response to this, offered to take an additional involvement in some of the applicant's duties. Davidson's evidence was that he had increasing concerns about the applicant's capacity from about early in November. He was prepared to give him a suitable time to work into the job and also because he had paid for a personnel consultant to recruit the applicant. Davidson gave evidence that he expressed on a number of occasions, however, disappointment to the applicant as to his performance. While the applicant was employed with the respondent, he arranged for another employee, Mr Wall ("Wall"), to leave the applicant's former employer and join the respondent. The Conversation on 23 November 1994 Wall commenced employment in early November but soon after that chose to search for other employment. He mentioned this to the applicant shortly before 23 November and said that he had been offered another position. On 23 November he advised the applicant that he was resigning. As the applicant was Wall's direct boss, he then told Wall that he would tell Davidson, the Managing Director of the respondent. The applicant went to see Davidson and in response to a question from Davidson was asked why Wall had resigned. The applicant had said that Wall had found an alternative position and was unhappy working with the respondent. The applicant added the comment, to the effect that it probably goes for most people that they would rather be working elsewhere. Davidson asked whether it included the applicant and he agreed. Davidson's version was that the applicant said that he too was resigning as well as Wall. The applicant's version of events is corroborated to some extent in that Wall said that Davidson told him that the applicant was leaving without using the words "resigning". Further, Wall said in his evidence that the first he heard that the applicant was resigning was when he was told this by Davidson in a meeting which took place shortly after the meeting between the applicant and Davidson. Although the difference between resigning and leaving is subtle, the difference is that leaving does not necessarily have the same meaning as having resigned. If the applicant had used the words "resigned" it is strange that Davidson would have told Wall that the applicant was leaving. Kendry gave evidence that he had been told by Davidson that the applicant had resigned. Kendry claimed that the applicant in a second meeting with him and Davidson had confirmed his resignation and asked if he could leave immediately. Davidson said that he said to the applicant, that he should leave immediately. The applicant's version was that Davidson said to him that he had resigned, which the applicant denied. The applicant admitted saying that he was unhappy working there but that was all. The applicant's version is Davidson then said to him, "Well, when do you want to leave?" and the applicant then said, "You have made your mind up, you want me out?" Davidson then said, "What do you want to be paid?" and the applicant said, "Whatever I am due." The applicant left that day. Findings on the Evidence When the Court is faced with conflicting oral testimony between witnesses the matter is never without difficulty. I found that all witnesses were attempting to recall events as they could. In the case of competing oral testimony, courts look for corroborating contemporaneous documents to assist them in ascertaining whose version to accept. Here the only corroborating document is the memorandum about the company's performance, a copy of which was produced by the applicant. That document does not address the issue of the resignation or the termination but it does corroborate the applicant's version of events that there were a number of difficulties within the respondent over the period of his employment. The applicant was pressed heavily as to his credit in cross-examination. The document on its face bears all hallmarks of contemporaneity and supports his evidence as to the difficulties within the respondent at the time. Further, the inherent probability of the events supports the applicant's version. I find it unlikely that the applicant would have resigned his position without at least exploring alternative employment. Also, it is unlikely that he would have received the resignation of Wall without telling Wall that he too, was resigning. On the respondent's version, he did so immediately after that conversation. It follows that I prefer the applicant's version of events over that advanced by the respondent. I find that the applicant did not resign on 23 November and did not say that he was resigning to Davidson or Kendry. Davidson may have assumed from what the applicant said that he would resign but that is insufficient to constitute a resignation. It follows from this that the termination of employment here was at the initiative of the respondent. Having found that the termination of employment was at the initiative of the respondent, it is necessary to consider whether there has been a breach of the Industrial Relations Act. Was There Breach of the Industrial Relations Act? It is clear that no notice was given and so there has been a breach of s. 170DB of the Act, which requires at least a week's notice. It was also argued that the termination was not for a valid reason under s. 170DE(1). The respondent did not advance any reason of substance which would have justified the termination of the employment of the applicant given the contents of the memorandum and the short period of employment. I accept the termination was not for a valid reason and thus is in breach of s. 170DE(1). In these circumstances, it is unnecessary for me to consider whether or not s. 170DC has been breached. Remedy Given the complete breakdown in the employment relationship, the applicant's attitude to reinstatement and his finding alternative employment, I am satisfied that it is impracticable to order reinstatement. Counsel for the applicant seeks compensation. The applicant was unemployed for three months after 23 November but concedes that at the date of termination his employment future with the respondent was uncertain. Given his age, it is somewhat unlikely that he would resign unless he had other employment. However, if his employment position became intolerable, it must be regarded as a possibility that he would have resigned in the short term after 23 November had the termination not occurred then. Further on the evidence there was a clear possibility that his employment may have been terminated lawfully, by way of a termination which did not breach the Act, or by way of a mutually agreed resignation. In the Court's opinion, it is appropriate to award compensation for breaches of the Act that I have found have occurred. Having regard to the matters which I have mentioned, I propose to award compensation on the basis that the applicant's employment with the respondent would have ceased two months from the date of the termination. Based on his salary of $40,000.00 per annum, plus $5,000.00 car allowance and 5 per cent superannuation, his salary package comes to $47,000.00 per annum. I propose to award the sum of $7,833.00 to the applicant, being two month's salary based on that salary package. The Order of the Court That the respondent pay to the applicant the sum of $7,833.00 within 21 days. MINUTES OF ORDERS THE COURT ORDERS: 1. That the respondent pay to the applicant the sum of $7,833.00 within 21 days. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding five (5) pages are a true copy of the reasons for judgment of Judicial Registrar Murphy. Associate: Dated: 3 May 1995 Solicitors for the Applicant: Ryan Carlisle Thomas Counsel for the Applicant: Ms M Young Counsel for the Respondent: Mr P Lennon Date of hearing: 24 April 1995 Date of judgment: 24 April 1995 C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - meaning - Resignation - Valid reason - Compensation. Industrial Relations Act 1988 ss.170 DB, 170 DC & 170 DE. ROGER BLACKEY -v- DAVIDSON LIGHTING SYSTEMS PTY LTD No. VI 2491 of 1994 Before: Judicial Registrar Murphy Place: Melbourne Date: 24 April 1995 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 2491 of 1994 B E T W E E N : ROGER BLACKEY Applicant AND DAVIDSON LIGHTING SYSTEMS PTY LTD Respondent MINUTES OF ORDERS Judicial Registrar Murphy 24 April 1995 THE COURT ORDERS AND DECLARES: 1. That the respondent pay to the applicant the sum of $7,833.00 within 21 days. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules.