Smith v Hi-Tech Antenna Hardware Pty Ltd [1995] IRCA 522

C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - Claim of unlawful termination - Issue whether employer terminated employment or employee resigned - Possibility of oral resignation. Industrial Relations Act 1988, S170EA, S170EE CASES Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (unreported) IRCA (1 June 1995) Decision No 283/95. Keating v Teico Investments, IRCA 17 October 1994 (unreported) Decision 64/94 Tamase v Argyle Tavern, IRCA 24 October 1994 (unreported) Decision 75/94 Wong v Hodes, IRCA 26 September 1994 (unreported) Decision 56/94 Sheffield v Oxford Controls Limited (1979) ICR 396 Yegen v De Fab Weavers, IRCA 13 October 1994 (unreported) Decision 60/94 SMITH v HI-TECH ANTENNA HARDWARE PTY LTD No. VI-1559/95 Before: Ryan JR Place: Geelong Date: 27 September 1995

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY Matter No VI-1559/95 B E T W E E N: TREVOR SMITH Applicant AND: HI-TECH ANTENNA HARDWARE PTY LTD Respondent MINUTES OF ORDER Judicial Registrar Ryan 27 September 1995 THE COURT ORDERS THAT: The application is 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-1559/95 B E T W E E N: TREVOR SMITH Applicant AND: HI-TECH ANTENNA HARDWARE PTY LTD Respondent COURT: RYAN JR PLACE: GEELONG DATE: 17 JULY 1995 THE EMPLOYMENT The applicant was employed as a general hand by the respondent for approximately 8 to 9 weeks from 7 December 1994 to 31 January 1995. His place of employment was a factory at 9 Haworth Court, Breakwater. The employment was subsidised and was the subject of a job start agreement and a probationary period for a month to 3 January 1995. THE CLAIM On 10 February the applicant filed a claim of unlawful termination of employment in which he sought compensation but did not seek reinstatement. PRE TRIAL On 17 February solicitors filed an appearance on behalf of the respondent and on 20 February the District Registrar referred the matter for conciliation. On 1 May the Australian Industrial Relations Commission certified that it had been unable to settle the matter by conciliation. On 22 May the Listings Co-ordinator advised the applicant and solicitors then recorded as acting for the respondent of a telephone directions hearing scheduled for 2:15 pm on 6 June. On 6 June the matter was set down for trial in Geelong on 17 July and both parties were directed to exchange documents on which they proposed to rely 14 days prior to the trial. At that stage solicitors were no longer appearing for the respondent. He was represented by an employee of the Victorian Employers' Chamber of Commerce and Industry. On 9 June, Messrs Harwood Andrews, the solicitors who had filed appearance for the respondent on 17 February gave notice that they intended after 7 days to file notice in the Court of withdrawal of solicitors for the respondent. However, on 30 June the Victorian Employers' Chamber of Commerce and Industry filed a notice of withdrawal of appearance for the respondent and gave as address for service Harwood Andrews. It appears that Harwood Andrews were later retained again to act for the respondent and Mr Fisher of that firm appeared for the respondent at the trial. Mr Cahill appeared for the applicant. THE APPLICANT'S EVIDENCE The applicant initially claimed that on Monday 30 January he telephoned Mr John Richards, a director of the respondent company and advised that he could not attend work that day because he had personal problems and was in New South Wales. He also indicated that he intended to be at work the next day and that he did not expect to be paid for the Monday. The applicant also states he apologised for his failure to be available for work that day. Under cross-examination, the applicant seemed uncertain at one stage as to whether the telephone call took place on Monday 30 January or Tuesday 31 January but the Court accepts it took place on Monday 30 January. Richards gave evidence which confirmed the telephone discussion on 30 January. Richards states that the applicant indicated he was ringing from New South Wales. The applicant claims he attended the respondent's shop the next morning, Tuesday 31 January. The shop is located at 150 Garden Street, East Geelong. In cross-examination, the applicant stated that he attended at the shop in East Geelong rather than the factory in Breakwater because he wanted to see whether he could get another day off to deal with the personal problems which had prevented his attendance at work on Monday 30 January. The applicant claimed in examination in chief that when he "went into work" on Tuesday 31 January (and his evidence at that stage did not specify that he went to the shop rather than the factory) he was told by Richards that he was no longer required, that he (Richards) did not have time for the applicant's problems and that someone else was doing the job and that he was not required. The applicant claims that Richards asked him to sign a typed letter of resignation (Exhibit A4) and that he refused, left the shop and attended the Australian Industrial Relations Commission, obtained certain advice, returned to the shop and asked again for the opportunity to return to his employment. The Court notes that such a request would have been inconsistent with his expressed intention of seeking a further day's leave. The applicant claims that he was given no reason for the termination of his employment, no notice, no payment in lieu and was given no opportunity to respond in respect of the alleged termination of employment. THE EVIDENCE OF JOHN RICHARDS, DIRECTOR OF THE RESPONDENT COMPANY Mr Richards gave very different evidence. He conceded that the applicant was very good in his employment, was always punctual and was willing to stay back outside hours. Thursday 26 January 1995 was Australia Day. By arrangement, the three factory staff at Breakwater, including the applicant, were given a long weekend being Thursday 26, Friday 27, Saturday 28 and Sunday 29 January. Mr Richards, having generally confirmed the applicant's version of the telephone conversation on Monday 30 January, states that at about 9:50 am on Tuesday morning 31 January the applicant telephoned again, indicated that because of his personal problems he could not come to work any longer, apologised for letting his employer down and requested that pay due to him be paid into his bank account. The applicant denied that he made this telephone call and denied that he requested payment of money due into his bank account. Mr Richards states that: 1. at about 10:20 am on 31 January about 30 minutes after the second telephone call, the applicant walked into the shop 2. at that stage three other employees were with Richards namely Tracy Wanders, Ivan and Justin 3. the applicant looked tired and upset and stated that he only had 60 cents in his pocket and requested that he be paid wages due to him in cash 4. he (Richards) asked the applicant if he was okay and the applicant responded, "no, you will read about it in the papers" 5. at no stage did the applicant ask for his job back or ask to continue in employment 6. he told the applicant it would be necessary to get cash from the bank and that the applicant should return later in about 30 minutes 7. he sought advice from VECCI and his accountant 8. he directed Tracy Wanders to type up the resignation letter (Exhibit A4) and a letter to the applicant providing details of termination payment (Exhibit A2) Mr Richards also gave evidence that: 1. the applicant returned to the shop between 1 and 1:30 pm 2. Mr Julian Knox was present sitting "at a table behind the aerials... having coffee" 3. the applicant was again asked whether he was okay and replied, "no, I have been in the police station half the night" 4. the applicant pulled documents or a folded paper from his pocket 5. Richards assumed this was in some way related to the reference to time spent in the police station 6. the applicant asked for a statement indicating that he had been dismissed and Richards declined to provide a statement to that effect 7. again the applicant did not ask for his job back 8. the applicant apologised for letting his employer down 9. Richards wished the applicant all the best and the applicant left with the cash SUPPORTING EVIDENCE FOR THE RESPONDENT Tracy Leanne Wanders is a clerk with the respondent company. Her duties include the operation of a word processor, answering telephones and making up wages. She stated that: 1. she attended work on Tuesday 31 January about 8:30 am and Mr Richards told her that Trevor (the applicant) had not turned up 2. Trevor telephoned about 10:00 am and that John (Richards) told her that the applicant had "girlfriend problems" and she was to pay three days pay due to him into his bank account 3. about half an hour later Trevor came in and wanted his money in cash rather than in the bank account 4. John made a few telephone calls and that she was asked to type a resignation letter (Exhibit A4) and another letter setting out how much the applicant was to be paid. The witness identified Exhibit A4 as a copy of the resignation letter produced from a word processing disk. Exhibit A4 reads as follows: "58 Heyers Road GROVEDALE 3216 Mr Richards HiTech Antenna Hardware Pty.Ltd., 150 Garden Street EAST GEELONG 3219 Dear Sir, I hereby resign from your Company on the 31st January, 1995. Yours faithfully, TREVOR SMITH" The witness was adamant she did not prepare Exhibits A2 and A4 until after the applicant had attended at the shop at 150 Garden Street, East Geelong on Tuesday 31 January. She denied the suggestion put by Counsel for the applicant that the letters were prepared before the applicant came into the shop. I accept the evidence of this witness as truthful and accurate. THE "PERSONAL PROBLEMS" In cross-examination, Mr Fisher pursued a reluctant applicant as to the personal problems which prevented his attendance at work on 30 January. Initially Mr Cahill did not object and Mr Fisher indicated that questions in relation to the personal problems were directed to credit. The applicant gave evidence that on either Saturday 28 January or Sunday 29 January he was driving alone in his vehicle towards Geelong from Lorne on the Great Ocean Road when in attempting to pass another car also travelling to Geelong the other car ran into the cliff. Mr Cahill successfully objected to further questions from Mr Fisher no doubt designed to extract further information in respect of this incident. Mr Fisher still maintained that his questions were directed to the applicant's credit but the Court did not allow further questions in respect of the incident on the grounds of relevance. The applicant did indicate that as a result of the incident he drove to Deniliquin in New South Wales to see a friend and to allow himself time to "think about" the personal problems which he claims arose from the incident in which a vehicle which he was attempting to pass collided with a cliff. At this stage in his evidence the applicant seemed confused, upset and incapable of recalling accurately the time and date of the incident and the time and date of the first telephone call to Mr Richards. He indicated that he had made a statement to the police and that if he had access to the statement he would be able to recall accurately the date, the time of the incident and the date and time of the first telephone call from Deniliquin to Mr Richards. The Court accepts that the applicant was upset and confused at this stage in his evidence and that the incident probably took place on Saturday 28 January and that the applicant in fact did ring Richards from a caravan park in Deniliquin at about 8:00 am on Monday 31 January. THE ALLEGED TELEPHONE CALL 16 FEBRUARY 1995 The applicant's mother, Jacqueline Joy Smith, gave evidence that John Richards telephoned on Thursday 16 February and that she took notes of the conversation. The Court observes that neither Counsel called for these notes. Counsel for the respondent put it to Mrs Smith that Mr Richards denied any such telephone conversation with her. Mrs Smith seems to assume that the caller, if there was such a call, was Mr Richards and when asked in cross-examination how she knew this, she replied: "He said it was John." Mrs Smith claims that in the course of the telephone conversation Mr Richards indicated that he wanted to speak to Trevor (i.e. her son, the applicant) and Richards wanted to know what Trevor was up to. Mrs Smith claims that Richards in effect threatened to have the applicant charged with "espionage and loss of goods" if he did not "drop the charges" (i.e. discontinue his claim for remedy for unlawful termination). Mrs Smith also claims that Mr Richards said words to the effect that: "Things could get dirty"....and he had "a good business record." FINDINGS I have concluded that the applicant voluntarily resigned because of personal problems which were, at least in part, associated with police inquiries into a driving incident in which he was involved probably on Saturday 28 February 1995. In the circumstances it is unnecessary for the Court to determine whether or not Mr Richards telephoned Mrs Smith on 16 February and applied pressure designed to achieve the withdrawal of the applicant's claim. Part VIA of Division 3 applies only to the termination of employment by an employer as distinct from an employee. The respondent was unable to produce a signed copy of the resignation letter of 31 January but the Court accepts that Exhibit A4 is an unsigned copy held by the respondent on micro disk. Given the terms of the employer's letter of response signed and dated 31 January (Exhibit A2) the Court has concluded that, irrespective of whether the applicant did or did not sign the letter of resignation, he did in fact resign. There are certain similarities between the position of Mr Smith, the applicant in this case, and Mr Mohazab, the applicant in Mohebatullah Mohazab v Dick Smith Electronics Pty Ltd (as yet unreported) IRCA (1 June 1995) Decision No 283/95. Mr Mohazab resigned because he did not want to be involved in a police inquiry. Mr Smith resigned because of personal problems and at least part of those personal problems were associated with police inquiries into a driving incident involving the applicant. In Mohazab at the bottom of page 7 Wilcox CJ stated: "I accept that, if a person signs a letter of resignation or offers an oral resignation under a misunderstanding of what he or she is doing or as a result of misleading or deceptive conduct, that resignation ought to be treated as not having been given. But that is not this case. Mr Mohazab knew what he was doing. I have no doubt that he was heavily influenced in his decision to resign by concern about the matter being reported to the police." Later, at page 9 the Chief Justice, referring to the resignation said: "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 find that too is the situation in this case. Mr Smith made the choice knowingly and without being the victim of misleading or deceptive conduct. The employee ended the employment. The Court has no jurisdiction to grant a remedy in such circumstances. The application will be dismissed. I will also comment briefly on four unreported cases cited by Counsel for the respondent. Two of the cases were of some assistance and two were of no assistance. Keating v Teico Investments, IRCA 17 October 1994 (unreported) Decision 64/94 is of no assistance involving, as it did, a demotion or threat of demotion which appears to have been treated by the Court as a constructive dismissal. Tamase v Argyle Tavern, IRCA 24 October 1994 (unreported) Decision 75/94 is of no assistance because at the end of the day the case turned on operational requirements rather than resignation or constructive dismissal. In Wong v Hodes, IRCA 26 September 1994 (unreported) Decision 56/94 Tomlinson JR found the employee, an accountant, resigned. She appears to have found that there was no threat which caused a resignation and which, in certain circumstances, could amount to a dismissal. The Judicial Registrar cited Sheffield v Oxford Controls Limited (1979) ICR 396. In Yegen v De Fab Weavers, IRCA 13 October 1994 (unreported) Decision 60/94 Tomlinson JR found that: 1. contact by the employer with an employer group, the Australian Chamber of Manufactures, after an alleged resignation and 2. no attempt by the employer to contact the applicant after the alleged resignation even though the employee was stated to be a good employee were part of a course of conduct consistent with unlawful termination. I cannot comment on the course of conduct in Yegen but, in this case, I do not find the employer's contact with an employer group, VECCI, prior to processing the final termination or the employee's undoubted good work record to be part of a course of conduct consistent with unlawful termination of employment. ORDER The application is dismissed. I certify that this and the preceding pages are a true copy of the Reasons for Judgment of Judicial Registrar Ryan. Associate : Date : 27 September 1995 Appearances: Mr M Cahill (Ryan Carlisle Thomas) for the applicant. Mr J Fisher (Harwood Andrews) for the respondent. Date of Hearing : 17 July 1995 Judgment : 27 September 1995