Mirko Stojanovic v Anasin Pty Ltd trading as Con's Performance Centre [1995] IRCA 433

CATCHWORDS INDUSTRIAL LAW - RESIGNATION - A resignation , even if made in the heat of the moment, is effective to repudiate a contract of employment as soon as it is accepted by the employer. Industrial Relations Act 1988 ss 170EA Mirko Stojanovic -v- Anasin Pty Ltd trading as Con's Performance Centre No. NI 1861 of 1995 COURT: PATCH JR PLACE: SYDNEY DATE: 28 JULY 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. NI 1861 of 1995 BETWEEN: Mirko STOJANOVIC Applicant AND: ANASIN PTY LTD trading as CONS'S PERFORMANCE CENTRE Respondent BEFORE: PATCH JR PLACE: SYDNEY DATE: 28 JULY 1995 REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) This is an application under section 170EA of the Industrial Relations Act ("the Act"). The applicant claims that his employment was unlawfully terminated and seeks reinstatement and payment of lost remuneration. There is only one real issue in this case, namely, "Did the applicant resign or was his employment terminated?" There has been some conflicting evidence as to what occurred on 6 April 1995 which was the date, to speak neutrally, of the ending of the applicant's employment. The applicant gave evidence that, on that date, he arrived at work at the normal time of 7.30 am and that Mrs Vacopolis, one of the directors of the company, (who, however, only worked there part-time, basically to do the wages every couple of weeks) came up to him and asked him to supply the details of his bank account, that is to say, his bank account number, the name of his bank and the branch, so that the respondent company could, from that time on, pay wages to him fortnightly by way of direct transfer to his bank account. Background Facts The background to this was that, over the period from 28 February to 6 April, 1995, the respondent company had been attempting to get its employees to agree to some specific changes in working conditions. The applicant did not agree with all of these changes. In particular, he did not agree with being paid fortnightly - as opposed to being paid weekly. Up until 6 April, he had, in accordance with the original agreement between himself and Mr John Vacopolis (another director of the company) which had been entered into in 1993 when the applicant first started work with the respondent, been paid cash in hand on a weekly basis. He would not accept the change to a fortnightly basis and, because changing to a fortnightly basis involved him being paid by direct transfer to his bank account, he refused to accept that method of payment as well. I am satisfied, however, that the applicant would have accepted the change in the method of payment, but he was refusing, when one really gets down to it, to accept a change from weekly to fortnightly. The applicant's last day at work On 6 April 1995, at about 7.30am, Mrs Vacopolis asked the applicant for the bank account details and he refused - that is common ground. From that point on the evidence between the applicant and the respondent's witnesses differs. The applicant's evidence as to what occurred after his refusal to give the bank account details was as follows: He said: "I do not agree with your decision to change wages from weekly to fortnightly payment. I didn't sign your working agreement which as a whole was unacceptable to me." Mrs Vacopolis replied by saying: "Give us your account number or get out." The applicant then said, "No, I have no intention of leaving job and I won't give you my account number because it is a breach of our existing verbal agreement from September 1993." Mr Vacopolis then came up and said, "That's it, just today and you are off." Mrs Vacopolis gave evidence that the applicant said, "No, I want to be paid weekly." Then she was asked the question, "Anything else?" and then she replied by saying, "I think he did, he said 'I want to be paid weekly cash in hand'". I deduce from that that Mrs Vacopolis is more certain about the words, "No I want to be paid weekly" - than she is about the words, "cash in hand". Mrs Vacopolis' evidence continued, and she said that, about one hour later she approached the applicant again and for his bank account details and he again refused, saying, "No, I want to be paid today." Mrs Vacopolis gave evidence that she replied by saying, "No, everyone had six week's notice." Mrs Vacopolis went on to give evidence that, about another hour later, she asked the applicant again for the information, and he again refused, saying the same words. She replied by saying, "There will be no privileges for anyone." Mr John Vacopolis gave some evidence about the conversations prior to the conversation which lead up to the ending of the applicant's employment, and he said that, at about 9.00am, he was walking to the engine room and heard his wife, (Mrs Vacopolis), and the applicant having a discussion. He did not hear all of the words that were said, but he heard Mrs Vacopolis ask the applicant for his bank account details and the applicant reply by saying, "You must pay me my wages cash in hand and weekly." Mr Vacopolis gave evidence that he then intervened, said that there would be no special privileges for anybody and that he said to the applicant something like, "You must give us your details by lunchtime." Mr Jean-Claude Mason gave evidence that he heard a heated conversation in the morning, between Mrs Vacopolis and the applicant. It was not clear from his evidence to which conversation he was referring, but he said that he was about three metres away and that the applicant refused to give the bank account details, said that he did not want it to go into the bank and that he wanted cash weekly. He said that Mrs Vacopolis said, "I gave you six weeks' notice that we would all be paid fortnightly from now on", that the applicant then refused again to give his bank account details and at that point Mr Vacopolis approached and said, "We need your account number by lunchtime so we can pay you." So, there are slightly differing versions between the various witnesses as to the conversations that occurred in the morning. But it was common ground that Mrs Vacopolis was asking the applicant for his bank account details, he was refusing, and he was insisting on weekly payments. The principle difference was that the applicant claimed that his employment had been terminated in those earlier conversations, a point to which I will return shortly. Later, probably late in the morning, or perhaps in the early afternoon, (it is not clear) the last conversation of any significance to this case occurred. Mrs Vacopolis, as a result of the conversation with an office employee, Karen, approached the applicant. She had with her, according to her evidence, some forms called "crankshaft inspection reports", also referred to in the evidence as "job cards". The applicant's evidence was that Mrs Vacopolis did not approach him with these cards. His evidence was that Mr Vacopolis had said, in not the final conversation but in the conversation just before the final conversation, "In the next hour you will have a letter in the office" and the applicant said that he regarded that as the termination of his employment. His evidence was that about half an hour after Mr Vacopolis said that to him, Mrs Vacopolis approached him and said, "Did you clock off your punch card". The applicant said, "No". Mrs Vacopolis said, "Then do it now". He gave evidence that he went to the lunch room, punched his card, gave it to her, and that Mrs Vacopolis then said, "Pack your tools and leave" and then he left after making some final arrangements. He gave evidence that he was saying goodbye to his fellow employees and that Mrs Vacopolis came into the workstation from the office, called him by name, pointed her finger to the door and said, "Mirko, get out". The evidence of the respondent's witnesses was in stark contrast to the evidence of the applicant. Mrs Vacopolis said that she came down with those cards and asked the applicant to fill them out. He replied by saying, "No, I quit". Mrs Vacopolis said, "You're joking, can you please fill out the report?" (by this she meant the card). She said that the applicant then replied, "No, no definitely not, I quit". She gave evidence that she then responded by saying, "Clock off, pack your tools and wait at the office door while I make your pay". She said that the applicant then yelled out, "No, you have to sack me". She gave evidence that Mr Vacopolis then intervened from the background, saying the words "No, Mirko, you quit and there are witnesses". Mr Vacopolis gave evidence of that same conversation. He said that he did not hear everything that had been said, particularly at the beginning, but he was there, he heard a loud discussion and the whole workshop stopped. He heard the applicant say, "Absolutely no, I quit", and then repeat the words, "I quit". He said that there were other employees present who could hear, and that one of them was Jean-Claude Mason. Mr Vacopolis gave evidence that the applicant either threw some paperwork in the air or threw his hands up in the air as if in a rage. He then yelled at the top of his voice, "No, you have to fire me". Mr Vacopolis gave evidence that he then spoke and said, "No, Mirko, you have quit, there are witnesses" and that then Mrs Vacopolis said to the applicant that he should clock off and pack his tools etcetera. There is an important difference between the evidence of Mr Vacopolis and Mrs Vacopolis, that being that the applicant said the words, "No you have to fire me" or "You have to sack me", immediately after he had said the words, "I quit", and before Mrs Vacopolis had told him to punch off. If I were to accept that the events that occurred in the way Mr John Vacopolis had stated, that would mean that the applicant, although saying the words, "I quit", had retracted them, that is to say retracted the repudiation of his contract of employment, before that repudiation had been accepted by the respondent. There would therefore, if I were to accept that version of events, have been an actual termination of employment by Mrs Vacopolis telling the applicant to punch out his card and pick up his things etcetera. Mr Mason's evidence was as follows: He heard Mrs Vacopolis say to the applicant, after walking up to him, words to the effect of, "Please fill out these cards" (or some paperwork) and that the applicant replied by saying, "I quit". Mrs Vacopolis then said, "You are joking, can you fill out the paperwork", and the applicant refused, saying the words "Definitely not, I quit". Mrs Vacopolis responded by saying, "You quit, then clock off, pack up your tools and come to the office". The applicant then said, "No, no, you must sack me". Mr Vacopolis then intervened, saying the words, "No, you quit and there are witnesses that heard you". On balance, I find that the version of events given by Mrs Vacopolis and Mr Mason is to be preferred to those given by Mr Vacopolis and the applicant. In the version given by Mr Vacopolis the applicant has said, "I quit" twice, and then, for no apparent reason, said the words, "No, you have to fire me". In Mr Vacopolis' version the word, "No", was said in response to nothing. Logically, one would say a sentence beginning in that way in response to something, and, in my opinion it is more likely than not that it was said in response to Mrs Vacopolis saying words to the effect of, "Clock off, pack your tools and wait at the office door while I make your pay". I prefer the version of events given by Mrs Vacopolis and Mr Mason to the version given by the applicant because I was impressed by Mrs Vacopolis as a witness, and because there is nothing before me to suggest that Mr Mason has a reason to tell lies on behalf of his employer. The applicant did not put to him that he was biased, even though I specifically gave the applicant the opportunity to re-open his cross-examination to do just that. I therefore accept Mr Mason as an impartial witness and, on balance, I accept the version of the facts given by him and Mrs Vacopolis where it conflicts with that given by the applicant. It follows that, on balance, I do not accept that the applicant's case that his employment was terminated by the respondent in one of the conversations earlier in the day. One matter which has given me considerable thought in this case is whether or not the applicant intended to repudiate the contract of employment, that is to say he intended to resign, when he said the words "I quit". I was inclined, initially, to think that perhaps that had been said in the heat of the moment, without the intention to resign. However, upon consideration, on balance I do not believe that that was the case. The reason why I do not believe that that was the case is because I accept Mrs Vacopolis' version of the conversation. She asked the applicant to fill out the cards. The applicant said, "No, I quit". She responded by saying, "You're joking, can you please fill out the report?" thus specifically referring to the possibility that the applicant was joking. The applicant then said, "No, no, definitely not, I quit". I find that the applicant did resign in the heat of the moment, but that it was, nonetheless, a genuine resignation. He, no doubt, regrets what was a rash and foolish act but, he having resigned, and that resignation having been accepted when Mrs Vacopolis told him to "clock off, pack your tools and wait at the office while I make your pay", he is not now, and was not from that time, in a position to arbitrarily undo what he had done. The application is therefore dismissed. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment of Judicial Registrar Patch. Associate: Caroline Sternberg Date: 31 August 1995 Appearances Applicant: In person Respondent: Mr G Harris Motor Traders Association of New South Wales