IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3085 of 1995 B E T W E E N: Adam Daniel SCULLY Applicant A N D RITEWAY TRANSPORT PTY LTD Respondent REASONS FOR DECISION 24 October 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988. The applicant is 31 years old and was employed by the respondent between 5 February 1990 and 15 March 1995 as a dockhand. The application was filed on 29 May 1995. It is appropriate to set out briefly the circumstances of the termination of the employment. On the weekend of 11 March 1995 the applicant attended a work related social gathering at Broadford, north of Melbourne. At that function the applicant consumed excessive amounts of alcohol and was subsequently charged by the police in relation to thefts which occurred at the function, and in relation to driving a motor vehicle above the legal alcohol limit on leaving the function. The applicant was convicted of theft and alcohol related offences. The applicant did not attend work again after the weekend incidents at Broadford. On the following Monday his evidence was that he was ill, and that he asked his mother to call work to inform them of this fact and of his temporary absence. The evidence of the respondent was that during the course of a telephone conversation between its State manager, Mr Caton, and Mrs Paul, the applicant's mother, wherein the events of the weekend were being discussed, Mrs Paul advised that the applicant would not be attending for work due to embarrassment as to his conduct, and that he was resigning. The applicant denies that he authorised his mother to resign on his behalf and says that his employment was in fact terminated by the respondent as a consequence of the incidents occurring on the weekend. The respondent's evidence was that the employment was terminated by the resignation of the applicant through an agent. I am satisfied that the applicant resigned his employment. In my view the applicant's mother had actual authority to act on his behalf in relation to his employment in the circumstances of the incidents which had occurred the previous weekend. The union was involved in the issue and steps had been taken by the respondent to have the union present at the disciplinary interview it intended to occur upon the applicant's return to work. The union was subsequently advised that the interview was no longer necessary as the applicant had resigned his employment. The evidence of Mr Fennell, the organiser, was that this was the nature of the conversation he held with both Mr Caton of the respondent and Mrs Paul, the applicant's mother. Mrs Paul's evidence was that she had never resigned on behalf of her son, or that if she had it was unintentional and without authorisation. I am of the view that the course and pattern of the dealings between the company and the applicant's mother on his behalf on previous occasions were consistent with there having been an authorisation in this instance to take whatever steps were necessary to limit the damage or consequences to the applicant as a result of his conduct. The evidence of both the applicant and his mother, but particularly Mrs Paul, establishes to my satisfaction that the applicant was likely to take any necessary steps to avoid confronting the consequences of his conduct during the course of that weekend. I am satisfied that Mrs Paul took such steps, and that there was no conduct by the applicant which would have suggested to the respondent at that time, or even up to the time of filing this application some two months later, that such steps were without his authorisation. The evidence was that the applicant's mother had frequently contacted the employer on her son's behalf to inform them of his absences, and it is apparent from the evidence in these proceedings that she takes a significant role in organising the day to day affairs of the applicant. This is further exampled by her discussions with the police in relation to her son's conduct and the various telephone calls she made to the union. I was not able to be satisfied that Mrs Paul had as clear a recollection of the events or contents of the telephone conversations she described as the other witnesses in the proceeding. I preferred the evidence of Mr Caton and Mr Fennell as to the circumstances and detail of the telephone conversations. This is because the events as they unfolded were inconsistent with a desire of the applicant to return to work. The applicant did not take any steps to contest his alleged termination of employment, notwithstanding the early intervention of the union and the union's clear willingness to participate on his behalf in the process. No alternative reason for the union ceasing to be involved was suggested, and there is no alternative which could on the evidence be reasonably inferred. The applicant's evidence was unsatisfactory. He was not a credible witness. He was unresponsive in both examination in chief and cross examination, and his attitude to the proceeding was apparently one of disdain. No steps were taken by him to pursue the alleged termination of the employment despite his knowledge that various conversations had taken place between the respondent and his mother and the union. He took no steps to pursue the matter with the union despite being a member of the organisation and well familiar with its role and function in the workplace in relation to such matters. Having regard to the above matters, I find that there was no termination of the employment of the applicant at the initiative of the respondent. Thus the applicant is not entitled to bring these proceedings and I will dismiss the application. Whilst it is appropriate to indicate that the applicant would not have succeeded in relation to any other ground, it is unnecessary for me to deal any further with the substantive aspects of the matter. The order of the court shall be that the application is dismissed. I certify that this and the preceding three (3) pages are a true copy of the reasons for decision of Judicial Registrar Parkinson. Associate: Dated: 24 October 1995 APPEARANCES Solicitors for the applicant: Wantrup & Associates Solicitor appearing for the applicant: Mr C Knott Solicitors for the respondent: Blake Dawson Waldron Counsel appearing for the respondent: Mr N Green Date of hearing: 3 October 1995 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI 3085 of 1995 B E T W E E N: Adam Daniel SCULLY Applicant A N D RITEWAY TRANSPORT PTY LTD Respondent MINUTES OF ORDER 24 October 1995 PARKINSON JR THE COURT ORDERS THAT: 1. The application is dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules CATCHWORDS INDUSTRIAL LAW - complaint of UNLAWFUL TERMINATION - whether RESIGNATION or termination at initiative of employer - whether applicant authorised his mother to resign his employment on his behalf Industrial Relations Act 1988, ss 170EA ADAM DANIEL SCULLY v RITEWAY TRANSPORT PTY LTD VI 3085 of 1995 Before: PARKINSON JR Place: MELBOURNE Date: 24 OCTOBER 1995