Industrial Relations Commission of New South Wales CITATION : MASSOOD RAFFO and CYPRUS COMMUNITY CLUB OF NSW LIMITED [2000] NSWIRComm 145 PARTIES : Massood Raffo Cyprus Community Club Of NSW Limited FILE NUMBER: 277 of 2000 CORAM: Grayson DP CATCHWORDS : Unfair Dismissal - Resignation - rights of unilateral withdrawal - countervailing versions of events - preference of one version over the other - termination of employment relationship not in the heat of emotional moment - done of free will at applicants own initiative - LEGISLATION CITED : Industrial Relations Act 1996 CASES CITED : Ngo v Link Printing Pty Ltd (unreported AIRC McIntyre VP, Marsh SDP, Harrison C, Print R7005, 7 July 1999) Birrell v Australian National Airlines Commission (1984) 9 IR 101 HEARING DATES: 08/01/2000 DATE OF JUDGMENT: 08/11/2000 Mr. C. Acev Australian Liquor Hospitality & Miscellaneous Workers Union LEGAL REPRESENTATIVES: Mr. D. Graham Agent on behalf of Registered Clubs Association JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GRAYSON DP DATE: 14 August 2000 Matter IRC00/277 MASSOOD RAFFO and CYPRUS COMMUNITY CLUB OF NSW LIMITED Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION 1 This is an application by Masood (Joseph) Raffo for relief under Part 6 of Chapter 2 of the Industrial Relations Act 1996. 2 Mr. Raffo (the applicant) alleges that on or about 10 January 2000 he was dismissed from his position as cellarman with the Cyprus Community Club of NSW Limited (the club). 3 He further alleges that the dismissal was harsh, unreasonable and unjust or any of those things such that the maximum amount of compensation allowed by the Act ought be awarded. 4 The club denies dismissing the applicant contending instead that he resigned his position in favour of full-time work as a console operator in a service station. 5 The matter was before the late Kelly C. on a number of occasions for conciliation and in the absence of settlement by that means, was re-allocated to me for arbitration. 6 At the hearing on 1 August 2000, the applicant was represented by Mr. C. Acev of the Australian Liquor, Hospitality and Miscellaneous Workers Union (LHMU) and the club by Mr. D. Graham, agent, on behalf of the Registered Clubs Association (RCA) 7 Evidence was called from the applicant and for the club from four witnesses as follows: · Peter Popoui ANDREWS, director and honorary secretary of the club · Irene ARGYROS, the club's administration manager. · Apostolos Antoniou (Paul) THANOS, a barman with the club and · Maria Teixeira (Teresa) MARTINS, an administrative assistant with the club 8 The applicant whose employment with the club commenced on or about 20 December 1998, said he suffered a work related back in jury on 15 December 1999 for which he claimed workers compensation. 9 The evidence suggests he was off work for two days following which he returned to normal duties. 10 The applicant by his written statement ( Exhibit B ) said he approached Irene Argyros on 4 January 2000 and indicated to her that his work was becoming heavy and was having an adverse effect on his back. He said he also indicated to her that perhaps in the future, it might become necessary for him to find a more suitable, light duty job. 11 He said he promised to notify Irene Argyros if that were to happen. 12 He said Irene Argyros responded with a statement to the effect that if he were to resign, he would be required to do so in writing. 13 He said he agreed to do that and went back to work. 14 He said he presented to his doctor the next day, 5 January 2000, with increased back pain and was given a certificate of incapacity for three days. 15 It might be usefully noted here that the applicant worked on Monday, Wednesday, Thursday and Friday of each week for the club and for the remaining three days each week as a console operator in a service station. 16 On 10 January 2000, he said he returned to work, handed in his medical certificate and worked normally until about 3pm at which time he was told by Irene Argyros that he was dismissed. 17 He said this was quite unexpected and had not been indicated to him previously. 18 It might be noted here that his use of the term "dismissed" in this part of his statement of evidence is in curious juxtaposition to his later evidence which as will be seen shortly, acknowledges the club's consistent assertion that he had resigned. At all events a meeting was then arranged for 13 June 2000 at which the applicant was represented by the LHMU and the club by the RCA. 19 The meeting failed to resolve the impasse and as the applicant sets out in his statement: " …… it was confirmed to Brett (his union representative) and myself that the club held the view that I had resigned..." (Exhibit B) 20 The applicant thereafter ceased work with the club continuing however with his work at the service station until May 2000 when his doctor it would seem advised him to cease work altogether due to the progressive worsening of his back condition. 21 He has not worked since and maintains ongoing incapacity for his work as a cellarman with the club. In that regard, there is tacit agreement between the parties that reinstatement would be impractical - in the event that the applicant were to succeed in establishing unfair dismissal. 22 On the applicant's evidence, therefore, he was dismissed without notice or warning. He was given no indication that his services were unsatisfactory and save for the club's assertion that he resigned (which he emphatically rejects) his case for unfair dismissal is compelling. 23 The matter however does not rest there and the club steadfastly maintains through its principal witness Irene Argyros that the applicant on 4 January 2000 tendered his resignation in the clearest and most unambiguous terms; that he was asked to confirm it in writing (which he never did); that he was asked to serve out a week's notice and that he later attempted to withdraw his resignation, a course which was and remains unacceptable to the club. 24 Irene Argyros by her statement ( Exhibit 2 ) and her oral evidence said the applicant came to see her in the club's administration office on 4 January 2000. She recalled busying herself at the time with the computer and she recalled the applicant interrupting her and seeking her undivided attention in order that she might hear and understand what he came to say. 25 She said the applicant indicated to her that he intended to take up an offer of full-time afternoon shift work at the service station because, unlike his position with the club, those hours of service station work would permit his attendance at TAFE for the purpose of doing a builders course and also because those hours of service station work would permit him to go around and get quotations on the house he was building. 26 She said she asked him to remain for the week whilst a replacement was found and she asked him to put the resignation in writing. 27 The applicant, according to Irene Agyros said he would do as he was asked and left the room. 28 It is common ground that Irene Argyros telephoned the applicant at home the next day (5 January 2000) to find out why he had not come in to work. 29 Upon being told by the applicant that he was going to see his doctor about his sore back, Irene Argyros said she asked him to ring and to let her know whether he as coming in the next day (6 January 2000). He did not do so. 30 The applicant denied being asked to do that, although one might here express the view that an employee would ordinarily inform an employer of such things as a matter of common courtesy. 31 At all events there was no contact from or with the applicant the next day (6 January 2000) and Irene Argyros began the task of arranging for his replacement. 32 According to her evidence, she had by then informed the club president, Chris Koulinos, of the applicant's resignation on 4 January 2000. She had contacted an employment agency and sought an urgent replacement and the next day (7 January 2000) she placed an advertisement in the Sydney Morning Herald. 33 Her evidence in this regard was not challenged and in my judgment, it represents a difficulty of some magnitude for the applicant in maintaining, as he does, that he did not resign. 34 It is improbable as I am disposed that an employer would go about the business of arranging for the replacement of an employee who had at the time neither resigned nor it might be added, been threatened with dismissal or dismissed. 35 Moreover, the valiant attempts of Mr. Acev for the applicant to characterise the words attributed to the applicant by Irene Argyros as other than a resignation are in my view of little persuasive moment on the totality of evidence. 36 In her statement, Irene Argyros attributes these words to the applicant in their conversation of 4 January 2000:- "The other place where I work has offered me a full-time afternoon shift position. I want to accept the offer ………." (Exhibit 2) 37 To my mind and the Commission accepts that those words or words in or to that effect were spoken by the applicant, it would not be at all difficult to construe them as a resignation particularly when what followed them were requests to serve out a notice period and to provide written confirmation of resignation. 38 A further difficulty confronting the applicant in maintaining his denial of resignation was the evidence on the respondent's side going to his (the applicant's) attempts on 7 January 2000 to withdraw the resignation based on a change of mind or a change of fortune as the case may be. 39 In that regard Irene Argyros said and steadfastly maintained in cross examination that the applicant came into her office on 7 January 2000 and said to her words to the effect that he had changed his mind and wished to withdraw his resignation. 40 Teresa Martins, the administrative assistant, gave evidence that she was present at the time and although the applicant spoke mainly in Arabic in that conversation she was adamant that she heard him say in English words to the effect that he had changed his mind and did not want to resign. 41 Ms. Martins also recalled the applicant saying to her some weeks earlier that he wanted to leave the club for reasons of personal convenience. 42 Peter Andrews, a director and honorary secretary of the club, gave evidence that he was also present in the administration office on 7 January 2000 when the applicant came in and spoke to Irene Argyros. 43 He said the applicant spoke mainly buy not entirely in Arabic and that Irene Argyros spoke initially in Arabic and then exclusively in English and although he does not speak Arabic he was able, from the snippets of English spoken by the applicant and the English spoken by Irene Argyros, to pick up the gist of the conversation between them. 44 Peter Andrews was quite sure that the conversation revolved around an attempt on the applicant's part to withdraw an earlier resignation and a firm and clear refusal on Irene Argyros' part to permit him to do so. 45 Paul Thanos, a barman at the club and a civil engineering student at Sydney University, said he was approached by the applicant on 4 January 2000 and asked a series of questions about enrolment in a building diploma course at TAFE. 46 He said the applicant also asked him that day as on numerous prior occasions, questions about a building project in which he (the applicant) was involved. 47 The applicant denied ever having such a conversation with Paul Thanos and in this and other aspects of the evidence, the Commission is faced with diametrically opposing versions which as Mr. Acev for the applicant appropriately observed at the outset, made it difficult for the parties to move towards any central point and more difficult still for the tribunal in its quest for the facts. 48 I have formed the view after careful consideration and not without reservation that the applicant probably did resign on 4 January 2000 and that his resignation was accepted by the Club thus bringing an end to the employment contract. 49 In reaching that conclusion I have had regard to the following:- · Clearly there was a conversation on 4 January 2000 between the applicant and the club's administration manager, Irene Argyros. · Clearly the question of the applicant's future employment with the club was discussed in the course of that conversation. · Clearly by its actions in going about the business of arranging for a replacement for the applicant, the club believed the applicant had resigned. · Clearly there was discussion on 4 January 2000 about the club's preference for a resignation to be confirmed in writing. 50 These matters are comfortably established in the evidence and as such form a basis on which, doing the best one can, the primary matter in issue between the parties can be determined namely, did the applicant resign or was he dismissed. 51 For example the applicants evidence that he merely told Irene Argyros on 4 January 2000 that he might one day resign seems at odds with him being asked by Irene Argyros, as he says he was, to do so in writing. 52 Such a request seems much more likely to be made in the case of an actual rather than a hypothetical resignation and in that regard, I prefer the evidence of Irene Argyros. 53 I also prefer the evidence of Irene Argyros, supported as it is by Peter Andrews and Teresa Martins that the applicant attempted to withdraw his resignation a week or so later and lest it be thought that the club's refusal to allow him to do so may of itself constitute a dismissal, it might be noted that there was no suggestion in the evidence of a resignation having been given in the heat of an emotional moment and withdrawn immediately or without delay. (for discussion as to these principles, see for example, Ngo v Link Printing Pty Ltd unreported AIRC McIntyre VP, Marsh Snr. D.P., Harrison, C Print R7005, 7 July 1999) 54 It was more the case as I have found on balance, that the applicant resigned calmly and at his own initiative and having done so on 4 January 2000 is unable to withdraw the resignation without the club's consent (see Birrell v Australian National Airlines Commission (1984) 9 IR 101. 55 The application is therefore beyond jurisdiction and is dismissed accordingly. 56 Mr. Graham for the club made application at the conclusion of addresses for costs orders against the applicant in the event of his client (the club) successfully defending the claim made against them. 57 As earlier observed this is a matter involving diametrically opposing versions of events and a finding on the Commission's part on a fine balance in favour of the club. 58 It is not a matter in my view which would permit the Commission to form the prerequisite opinion (section 181 (2)(c)) that there was unreasonable failure to agree to a settlement or that the application was frivolous or vexatious. 59 The applicant's case, as Mr. Acev submits was an arguable case where factual matters were and remained throughout, in very close contest. 60 The club's application for costs against the applicant is refused. ________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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