IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI95/2576 B E T W E E N: DOMINIC ANTHONY RUGGIERO Applicant A N D: MCLEAN TETOF MOTORS PTY LTD Respondent COURT: MILLANE JR PLACE: MELBOURNE DATE: 4 AUGUST 1995 REASONS FOR JUDGMENT Mr Ruggiero, the Applicant, seeks compensation from the Respondent alleging that on 8 April 1995 his employment as a salesman was terminated in contravention of Division 3 Part VIA of the Industrial Relations Act 1988 (the Act). The Respondent sells cars, both used and new ones. The issue between the parties is of narrow compass because the Respondent contends that on 8 April 1995 the Applicant resigned from his employment after some nine weeks with the Respondent. If the Court finds that the events of 8 April 1995 were such as to show that the Applicant's employment was terminated at the initiative of the Respondent, the Respondent raises no further defence or justification for the termination. This is because it asserts that, at all times, it was against the Respondent's interests to terminate the Applicant's employment and more importantly, it had no intention to do this on 8 April 1995. The Applicant gave evidence and was represented by Mr Le Grand of Counsel. The Respondent was represented by Joe Cucuzza (Cucuzza) the Respondent's general manager. Apart from giving evidence himself, Cucuzza called three other witnesses, Gary John McMillan (McMillan), the managing director and a shareholder in the Respondent company; Peter Donald Hoskins (Hoskins), a salesman employed by the Respondent; and Paul Michael Frangie (Frangie), the Respondent's used car manager. It is common ground that the 44 year old Applicant was first employed from 3 February 1995 having had limited experience in the sale of used cars. At first instance and whilst he was working in the used car division of the Respondent's business, the Applicant was answerable to Frangie who, in turn, answered to the general manager, Cucuzza. McMillan was both the most senior person and a proprietor of the business and was referred to by the witnesses as the dealer/principal. At the end of the working day on Friday, 7 April 1995 the Applicant, whose duties included taking keys out of the cars at night and locking up, was asked by McMillan's wife to arrange cars for McMillan and Cucuzza to take home that evening. He spoke by telephone to McMillan who expressed no particular preference for the type of vehicle he would take. The Applicant selected a vehicle and McMillan and Cucuzza emerged from the Respondent's showroom some time later to leave for the night. There is some difference as to the order of events thereafter, however, it would be fair to say that, when McMillan went to the vehicle designated for his use, he audibly observed that there was insufficient petrol in the vehicle. There was a second vehicle which McMillan apparently looked at and also the vehicle the Applicant intended to take home himself that evening, which had half a tank of petrol in it. The Applicant offered the lastmentioned vehicle to McMillan and, as McMillan approached it, the Applicant recalled that he required that vehicle at the car yard the next morning. He told McMillan this before he entered the last vehicle. This led McMillan to say "Stuff it, I'll put some petrol in it myself" and he left in the first vehicle. In giving his evidence-in-chief, the Applicant told the Court that when McMillan first observed that the first vehicle did not have sufficient petrol in it Cucuzza asked the Applicant to go to the garage across the road and to fill the car with petrol. The Applicant alleges that he responded by saying "Yes fine", however, he took no steps to do this because McMillan said "Hang on, I'll see what's in this car" indicating a second car. At the time, despite his comment before leaving the car yard, the Applicant alleges that McMillan did not appear to be angry or annoyed with him. McMillan's evidence is that on at least two if not three occasions Cucuzza asked the Applicant to put petrol in the vehicles with the Applicant making no attempt to comply with these requests. McMillan was frustrated by what occurred and, in order to diffuse what he believed was a heated situation, he decided to take the first car and put petrol in it himself. Hoskins, who was in the yard at the time, overheard Cucuzza asking the Applicant to put petrol in a car and observed that the Applicant did not respond to this request. Cucuzza gave evidence that he asked the Applicant three times to put petrol in the car and he could see that McMillan was getting annoyed. When McMillan left the Applicant conceded that Cucuzza said to him "Dominic, I can't believe you. I've asked you three times to get petrol for Gary McMillan, the dealer principal, and you didn't". What followed on from this last comment was a heated discussion between the two men in which it is alleged by Cucuzza that the Applicant said words to the effect of "Well, if you carry on like that I will resign", to which Cucuzza responded by saying "If you wish to resign I'll accept it". Hoskins alleged that he was within earshot of the abovementioned conversation and recalled the Applicant preferencing his remarks with the words "I'm tired of all the shit in this joint ...". Cucuzza claims that after the exchange in which the Applicant threatened to resign, the Applicant recanted and Cucuzza suggested that they bring the conversation to an end before they both said something that they would regret. The Applicant denied offering a resignation during his conversation with Cucuzza. His recollection is that he believed that Cucuzza was trying to "sack" him and he asked Cucuzza if he wanted him to resign, at the same time telling Cucuzza that he had no intention of resigning. When he gave his evidence-in-chief, the Applicant expressed the view that there were no witnesses to his discussions with Cucuzza. However I accept Hoskins evidence that he overheard much of what was said and at the end of the conversation the Applicant approached Hoskins and said "... I don't believe they can expect me to go over the road and get petrol when it's pissing with rain, I've had it up to here with Cucuzza. I think I'll just pull the pin". Hoskins understood this last comment to mean that the Applicant would resign. The next morning the Applicant attended work as usual at approximately 8.30am. He alleges that when he arrived he was informed of a rumour that he was to be sacked. He called no evidence to this effect. During the course of the morning he was called into Frangie's office and because of the look on Frangie's face he alleges that he said to him "There is something that you want to tell me and don't know how to go about it. I'll tell you, I've been sacked and you don't want to tell me". According to the Applicant, Frangie responded in the affirmative and agreed that he wanted the Applicant to leave immediately with one week's pay in lieu of notice. The Applicant gave evidence that he had a good relationship with Frangie who had assisted him over the nine and half weeks of his employment and further had counselled him not to leave the Respondent's employment when the Applicant received at least one offer of alternative employment from another car yard. Frangie confirmed that it was a friendly relationship; although he recalled that it was necessary on a number of occasions to counsel the Applicant because of his attitude to clients when the Applicant lost his "cool" or was argumentative with the clients and other staff. When Frangie arrived for work on 8 April 1995 he alleges that he had no idea of what had occurred on the previous evening. When he came into the showroom Hoskins told him that there had been "a bit of a drama last night and Dominic had words with our general manager." Frangie alleges that because of this information he called the Applicant into his office to discuss the problem with him and asked the Applicant what had happened. The Applicant, according to Frangie, said words to the effect "I suppose you already know what happened". Frangie responded in the negative and the Applicant then went on to tell him about the fight with Cucuzza; telling Frangie that it would be better if he, the Applicant, resigned. Instead of deterring the Applicant from this course Frangie said, "If you really want to resign I'll get someone to return you home and give you one week's pay in lieu". Frangie pointed out to the court that at the time of his conversation with the Applicant one salesman was on leave and there were only two salesmen left including the Applicant on the busiest day of the week. Because of earlier discussions with the Applicant, when the Applicant intimated that he wanted to resign to take up other employment Frangie did not stop the Applicant from leaving on this occasion. Frangie said that he was upset and inconvenienced by the Applicant's decision. More importantly, he had not discussed any termination or the events of the previous evening with Cucuzza or McMillan; nor did he have any intention or desire to terminate the Applicant's employment on that morning. There was no complaint concerning the Applicant meeting his performance targets or, indeed, concerning his overall performance. Hoskins also told the Court that he was outside having a cigarette when the Applicant arrived for work on 8 April 1995. When he emerged from his vehicle Hoskins alleges that the Applicant shook his head and said "I wasn't going to come in today because if I did I might resign". About one hour later the Applicant left saying to Hoskins "That's it, I'm out of here". Termination under the Act means termination at the initiative of the Respondent. This Applicant was employed pursuant to an award and it is alleged by the Respondent that one week's notice was all that was required for the Applicant to resign. Looking at all the evidence there is little basis for saying that the Respondent intended or wanted or acted in such a way that it can now be said that it initiated the cessation of this man's employment. It does seem that the employment came to an end because of the Applicant's impetuous behaviour in seeking to resign after a contratemp with the general manager, which encounter does not appear to have led to any sanctions being imposed by the employer. It is consistent with the relationship between the Applicant and Frangie that on hearing of the "drama" from the evening beforehand Frangie asked the Applicant into his office to discuss the problem as he had done on previous occasions when there were problems. Even if I accept that the Applicant genuinely believed that the Respondent wanted to terminate his employment, the weight of the evidence is against this conclusion and the Applicant's assertion that he had no intention of resigning. In Sovereign House Security Services Ltd v Savage (1989) IRLR 155 May L.J. said at page 116: "In my opinion, generally speaking, where ambiguous words of resignation are used by an employee to an employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view Tribunals should not be astute to find otherwise ... However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee himself or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight." This is not a case where the Applicant was under any threat to resign or be dismissed. I am satisfied on the facts that it was a voluntary if somewhat foolish act of resignation. Accordingly, the Applicant has not reached first base under the Act in that there was no termination at the initiative of the Respondent and the Application is dismissed. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of Judicial Registrar Millane. Associate: Date: 4 August 1995 Appearances: Counsel for the Applicant : Mr S. Le Grand Solicitor for the Applicant : Mr B. Murphy Slater & Gordon Representative for the Respondent : Mr J. Cucuzza Date of Hearing : 27 July 1995 Judgment : 4 August 1995 C A T C H W O R D S INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - TERMINATION AT THE INITIATIVE OF THE EMPLOYER - RESIGNATION - Intention to Resign CASES: Sovereign House Security Services Ltd v Savage (1989) IRLR 155 May L.J. RUGGIERO V MCLEAN TETOF MOTORS PTY LTD No. VI95/2576 Before: Millane JR Place: Melbourne Date 4 August 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI95/2576 B E T W E E N: DOMINIC ANTHONY RUGGIERO Applicant AND: MCLEAN TETOF MOTORS PTY LTD Respondent MILLANE JR 4 AUGUST 1995 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The Applicant's application is dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.