Floody v Dinez Nominees Pty Ltd [1995] IRCA 492

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination - Resignation or Termination Industrial Relations Act 1988, S170DE, S170EA CASES: Siagian v Sanel Pty Ltd; APESMA v Skilled Engineering Pty Ltd; and Grout v Gunnedah Shire Council all in (1994) 1 IRCR at 1, 106 and 143 respectively.

Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (unreported) IRCA (1 June 1995) (NI 0327R of 1994) Wilcox CJ. FLOODY v DINEZ NOMINEES PTY LTD No. VI-1180/95 Before: Judicial Registrar Ryan Place: Melbourne Date: 21 September 1995

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1180 of 1995 B E T W E E N: FLOODY Applicant AND: DINEZ NOMINEES PTY LTD Respondent RYAN JR MINUTES OF ORDER 21 SEPTEMBER 1995 THE COURT ORDERS THAT: The application be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1180/95 B E T W E E N: FLOODY Applicant AND: DINEZ NOMINEES PTY LTD Respondent COURT: RYAN JR PLACE: MELBOURNE DATE: 21 SEPTEMBER 1995 REASONS FOR JUDGMENT THE EMPLOYMENT The applicant is licensed to drive articulated vehicles. He worked for the respondent from 4 October 1993 to 3 January 1995, having responded to an advertisement for a truck driver. The applicant was interviewed by Mr Udo Kerber. Mr Kerber manages Unit 2 at the Bears Lagoon Piggery. It has been claimed that Mr Kerber has a broad authority to employ staff at the piggery on behalf of the respondent. It would appear that he either made the decision to employ the applicant or recommended the employment of the applicant to the Manager of the Bears Lagoon Piggery, Mr Ray Buckley. THE CLAIM On 18 January 1995 the applicant's solicitors lodged an application for remedy for what is claimed to be unlawful termination of employment. On 27 January the Australian Chamber of Manufactures entered an appearance on behalf of the respondent. On 24 February Vice-President McIntyre certified that the Australian Industrial Relations Commission had been unable to settle the matter by conciliation and at a Directions Hearing on 4 April the matter was fixed for trial in Bendigo on 29 June. At the trial, Mr Peter Morrissey appeared for the applicant and Mr Craig Rutledge for the respondent. THE JOB The applicant's primary responsibility appears to have been the delivery of food to Units 1 and 2 of the respondent's piggery at Bears Lagoon approximately 50 kms north of Bendigo. During the course of his employment with the respondent the applicant resided with his wife and child at Boort which is also approximately 50 kms from Bears Lagoon. The applicant usually drove an International 37 Prime Mover equipped with a feed tank and an auger and a hose for delivery of the pig food to the piggery units. The applicant was also expected to perform related duties such as cleaning up around silos and every second weekend he worked as a piggery assistant or attendant. When doing so the applicant was paid the hourly and penalty rates of a truck driver. The hourly rate for the truck driver of $11.34 was somewhat higher than the hourly rate for a piggery assistant/attendant, grade 1 ($8.70). The applicant claims that he and all other workers at the Bears Lagoon Piggery were shown and required to read and abide by quality assurance rules which set out pig handling requirements in some considerable detail. Having called for and examined the extent, scope and nature of the quality assurance procedures provided for Units 1 and 2 at the piggery, the Court doubts very much that workers were shown or absorbed the detail of the large number of procedures. In any event, neither party sought to rely on the quality assurance procedures although Mr Morrissey pointed out that there was no direct or specific reference to the driving of trucks in the procedures. THE EARLIER INCIDENT The applicant gave evidence of a incident prior to Christmas 1994 when he claims he delivered feed to Unit 2 in compliance with a docket which designated Unit 2 as the required delivery location. He admits that, despite the written directions, the feed shed manager in Unit 2, Mr Brian Stanley, directed him to deliver the feed to Unit 1 but that he, the applicant, became confused or forgot or overlooked the oral direction and complied with the written docket direction and delivered the feed to Unit 2. He claims that Mr Stanley became very irate and threatened to punch his head in and that he responded that he would call the police. The applicant states that Mr Kerber, calmed Stanley down, described the applicant as a "girl" and then explained to him that management "could bend the rules". The Court has taken this reference by the applicant to "bending the rules" as his description of Kerber's explanation that, in effect, oral managerial directions could override a written direction in a delivery docket. The applicant claims that until he received this advice he was unaware that management could override a written direction in a delivery docket. The Court finds this a curious position for the applicant to take and believes that in respect of this earlier incident the applicant either forgot or became confused in respect to the delivery. In any event, not a great deal seems to turn on this earlier incident other than that counsel for the applicant pointed out that the applicant gave evidence that when threatened by Mr Stanley he had indicated that he would call the police if Stanley attempted to execute his threat to punch him in the face. Counsel pointed out that this demonstrated a consistent pattern of reaction when the applicant was threatened. The Court also notes that while Stanley, in his evidence in chief, referred to an earlier incident with the applicant which might well have been this particular incident, neither Mr Rutledge for the respondent nor Mr Morrissey for the applicant pursued this issue with Mr Stanley in evidence in chief, cross-examination or re-examination. THE REPRIMAND 3 JANUARY 1995 On 3 January 1995 it is undisputed that the applicant had reversed his feed tanker down beside a pig race at Unit 1 and that there were pigs in the race at what is known as the "finisher" area. It is also undisputed that Mr Ray Buckley, the Operations Manager of the Bears Lagoon Piggery, remonstrated with the applicant, swore at him and told the applicant in no uncertain terms that he was to move the truck away immediately and return with the truck unloaded to Unit 2. A number of less important aspects are disputed and also in dispute is a matter of some significance. The applicant is adamant that Mr Buckley told him that he (the applicant) was not welcome any more at Unit 1. Mr Buckley denies this. His evidence is that he never made a statement of that kind, never intended to convey the impression that the applicant was no longer welcome at Unit 1, never intended to terminate the applicant's employment, never colluded with any other employees of the respondent to force, invite, encourage or in any way achieve the resignation of the applicant and never directed or suggested to the Unit 1 feed shed manager, Brian Stanley, that he, Stanley, should alone or with any other employee terminate the applicant's employment or force, invite, encourage or in any way achieve the resignation of the applicant. At no stage in his evidence did Mr Buckley describe his position in terms similar to those I have just used but there is no doubt this was the import of his evidence. However, Mr Buckley's involvement in the incident of 3 January 1995 is no where near as significant as the involvement a little later of Mr Stanley, the feed shed manager, and Udo Kerber, the manager of Unit 2. It is clear that while there are differences and disputes in the evidence of the applicant and Mr Buckley as to whether the applicant was still reversing or had stopped when confronted by Buckley and as to who said what and as to the force and pungency of what was said, both the applicant and Mr Buckley concede that the applicant was directed very forcibly to get the truck in its unloaded state away from the finisher area and back to Unit 2. There is also no dispute that the applicant expressed the view that he did not know that he was not allowed or expected to reverse his truck when pigs are in the finisher area. However, Buckley, and indeed Kerber and Stanley all gave evidence that the applicant would have known that he was not to reverse his truck against pig flow in the finisher area. Buckley gave evidence that he had never seen the applicant do that before, i.e. reverse his truck with pigs in the race in the finisher area, although he conceded that such a manoeuvre was acceptable and was practised by the applicant in the "weener" area. The applicant's evidence was quite different and equally firm. He states that he had reversed his truck very slowly at walking pace beside the pig race in the finisher area on many occasions and that on this occasion he was still reversing slowly towards the silo further down the track but still in Unit 1 when Mr Buckley remonstrated with him and he (the applicant) stopped the truck and got out to speak to Buckley. THE RESIGNATION The events on which this application for remedy for unlawful termination of employment must stand or fall took place a little later in the morning of 3 January back at Unit 2. Mr Buckley was not involved. The applicant, Mr Kerber and Mr Stanley were the participants in these later events and these are the events which, depending on the findings of fact and law, determine whether the applicant resigned or had his employment unlawfully terminated at the initiative of the employer. Again, certain facts are not in dispute. They are that Mr Kerber and Mr Stanley approached the applicant. There is a difference in evidence as to whether the applicant swore but Kerber admits that he did swear at the applicant and forcefully remonstrated with him not only for reversing his truck against pig flow but also because, on Mr Kerber's version of events, the applicant had sworn and described Mr Buckley in very uncomplimentary terms. The Court notes that despite the applicant's denial, the circumstances were such that it would not be overly surprising if the applicant did express his disapproval of Buckley in such terms. Mr Buckley admits he swore at the applicant. Mr Kerber admits he swore at the applicant. Mr Stanley confirms that Mr Kerber swore at the applicant. Despite the applicant's denial, the Court tends to the view that it is likely that the applicant swore when referring to Buckley early in the conversation with Kerber and Stanley but very little turns on that likelihood. The applicant claims Mr Kerber was verbally aggressive, swore at him constantly and threatened to punch him in the face. Mr Kerber and Mr Stanley generally confirm this but are equivocal about the frequency and number of times Mr Kerber swore at the applicant. The applicant claims that Mr Kerber repeated words very similar to those which Mr Buckley used over at Unit 1 namely that the applicant was not welcome at Unit 1. The applicant seems to go further and at least imply that Kerber told him that he could no longer be a truck driver. At the very least, the applicant's evidence is to the effect that Kerber responded to a query from the applicant as to whether he could any longer drive the truck with an offer to the applicant of a job in the piggery as a piggery assistant or attendant. Mr Kerber and Mr Stanley both deny that Kerber ever indicated that the applicant would not be welcome at Unit 1. Both deny that Kerber told the applicant that he could work in the piggery. Mr Kerber stated that the applicant suddenly broke in while he (Kerber) was asking the applicant about being taught not to back the truck against pig flow. Mr Kerber states that the applicant, of his own volition suddenly said words to the following effect: "If I am banned from Unit 1, I am banned from the truck. You will probably offer me the piggery but I will not work there. I get enough shit now at home for working there at the weekends. I would hate to work in the piggery full-time." Kerber claims he responded along the following lines: "Do you want to quit?" He also claims that after a pause the applicant replied: "Yeah." Kerber says he then said: "Are you prepared to put it in writing?" And that the applicant did not hesitate but replied: "Yes" and that he and Mr Stanley and the applicant then went to the Unit 1 office whereupon Mr Kerber handed the resignation book, Exhibit C1, to the applicant and that the applicant said he did not know what to write and that he (Kerber) wrote out the resignation (Exhibit A2). It is conceded that the resignation note (Exhibit A2) is the original of page 6 of Exhibit C1, the resignations book. Exhibit C1 has the following printed on the covers: "Spicers Commercial Triplicate Book" and "Spicers Pen Carbon Book". Also written on the front cover in red texta is the following: "Employee resignations or warnings". Exhibit A2 (the original of page 6 of Exhibit C1) has the word "original" printed in the top left hand corner and the number "6" in red print in the top right hand corner. Mr Kerber states that he wrote everything in the resignation note in his own handwriting except the signatures of the applicant and the signature of Mr Stanley as a witness. The resignation note reads as follows: "I Craig Floody hereby quit my employment with Dinez Nominees on this day being 3-1-95. Signed: Craig Floody Signed:` U. Kerber Witnessed: B.S." Mr Stanley's evidence is to the effect that, on his own initiative, after a brief discussion with Mr Buckley, he told Mr Kerber that the applicant had been sent back to Unit 2 by Buckley for going against the flow of the pigs. The impression I gained from Mr Stanley's evidence was that he (Stanley) asked Mr Kerber to take this up with the applicant but it may have been a joint decision on the part of Kerber and Stanley to accost the applicant. In any event, Stanley supports Kerber's claim that the applicant immediately swore and referred in derogatory terms to Buckley sending him back to Unit 2. Stanley also confirmed the Kerber version that after things had calmed down the applicant of his own volition and in no way in response to a suggestion from Kerber suddenly expressed an unwillingness to work in the piggery. Mr Stanley used quite different words to describe this apparent, sudden and unexplained statement by the applicant. Before dealing with Mr Stanley's sworn version of this sudden statement by the applicant, it must be asked why would the applicant of his own volition and in the absence of any suggestion from Mr Buckley at Unit 1 or Mr Kerber at Unit 2 suddenly express the view that he would not work in the piggery? The question needs to be asked in light of the evidence of all three respondent witnesses which is that it was never suggested that the applicant was to work full-time in the piggery and it was never suggested that he was not welcome in Unit 1 and it was never suggested or implied that he was not to drive the truck. Mr Rutledge suggested that this reaction by the applicant is so irrational that, on the balance of probabilities, it is unlikely to be a concoction of Kerber and Stanley and is likely to be a correct and consistent description by Kerber and Stanley of a sudden, inexplicable, irrational statement by the applicant. Of course, there is at least one other conclusion open and that is that such an irrational, unprovoked, unsolicited, unexplained reaction never occurred. The Stanley version is that the applicant said words to the effect that he "was not working in there" (i.e. the piggery) and that he "had enough shit at weekends" (presumably a reference to the applicant's fortnightly weekend shifts in the piggery). Mr Stanley then claims the applicant said "I will quit". Again, if the respondent's overall version is correct there is no explanation as to why the applicant would suddenly make such a statement in the absence of some indication on behalf of the respondent that that was the option open to him. Mr Stanley did not give evidence of what Mr Kerber claims preceded the applicant's expression of unwillingness to work full-time in the piggery, namely, the statement by the applicant that he was banned from Unit 1 and from driving the truck. Mr Stanley displayed selective recall in cross-examination of some aspects of the incident and no recall at all of other aspects. He claimed in cross-examination that the applicant virtually spontaneously did himself out of his job. Mr Stanley claims the applicant virtually said: "I will just have to quit my job. I am not working in the piggery. I am getting enough shit over the smell at the weekends as it is." FINDING I have come to the conclusion that irrespective of whether the applicant was told by Mr Buckley and/or Mr Kerber that he was not welcome at Unit 1, and irrespective of whether Mr Kerber and/or Mr Stanley offered the applicant full time work as an attendant in the piggery in lieu of his main job as a driver, the applicant, of his own volition, resigned from his employment with the respondent. The result of that conclusion is inevitable. The application must be dismissed. Part VIA applies only to a termination of employment by an employer as distinct from the employee. See Siagian v Sanel Pty Ltd; APESMA v Skilled Engineering Pty Ltd; and Grout v Gunnedah Shire Council all in (1994) 1 IRCR at 1, 106 and 143 respectively. I am prepared to accept that it is very likely that the applicant was told he was unwelcome at Unit 1. It is also likely that Mr Kerber offered the applicant or even, as it were, threatened the applicant with full time work in the piggery and, in effect, the loss or deprivation of his driver's job. However, even accepting on the balance of probabilities that this is what occurred I do not accept that this amounted to a form of duress such as rendered the resignation void and created a constructive dismissal by the respondent. I do not accept that the applicant signed the statement of resignation because of a misunderstanding of what he was doing. I do not accept that the applicant signed the statement of resignation as a result of conduct so misleading or deceptive that the resignation ought to be treated as not having been given. There are certain similarities between the position of Mr Floody, the applicant in this case, and Mr Mohazab, the applicant in Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (as yet unreported) Industrial Relations Court of Australia (1 June 1995) (NI 0327R of 1994) Wilcox CJ. Mr Mohazab resigned because he did not want to be involved in a police inquiry. Mr Floody resigned probably because he believed he was about to lose his driver's job and possibly because he had been reprimanded and sworn at by Messrs Buckley, Kerber and Stanley and possibly because he believed that the only work the respondent would in future offer him was uncongenial, dirty, smelly work as an attendant or assistant in the piggery and possibly for a combination of all of these considerations and perhaps others as well. However, there is no doubt that Mr Floody, like Mr Mohazab, signed the statement of resignation. Again, in this case as in Mohazab (at 7) it would have been desirable if Mr Floody, when confronted by Messrs Kerber and Stanley, had had the opportunity of an independent person present to protect his interests. However, in terms of the workplace and the circumstances in which the meeting arose, the provision of such assistance was quite unrealistic. As in Mohazab it is extremely difficult to resist the conclusion that Mr Floody resigned his employment. At 9 in Mohazab the Chief Justice stated: "I can understand that he might come to regret making that choice and I think it is fair to say that, if the matter had been better handled at the time and he had been allowed more time to consider his position, he might not have made that choice. But he clearly did so, and he made the choice knowingly and without being the victim of misleading or deceptive conduct. It seems to me that, whether the decision was a good one or a bad one, it was his decision and he is visited with its consequences." I have given careful consideration to the possibility that Mr Kerber's "offer" or "threat" of full time work in the piggery in the circumstances described by the applicant amounted to conduct so misleading or deceptive as to justify treating the resignation as not having been given. However, I have already indicated that I do not accept that the applicant signed the statement of resignation because of a misunderstanding of what he was doing or because he was deceived. He, too, must accept the consequences of his decision. I certify that this and the preceding 8 pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 21 September 1995 Appearances: Counsel for the Applicant : Mr Peter Morrissey Solicitor for the Applicant : Arnold Dallas and McPherson For the Respondent : Craig Rutledge Australian Chamber of Manufactures Date of Hearing : 29 and 30 June 1995 Judgment : 21 September 1995