Industrial Relations Commission of New South Wales CITATION: Macris v Pashion Pty Ltd [2005] NSWIRComm 141 Bernard Macris PARTIES: Pashion Pty Limited FILE NUMBER(S): 7289 of 2003 CORAM: Grayson DP CATCHWORDS: Unfair dismissal - dispute as to whether applicant resigned or was dismissed - allegation that letter of resignation bearing applicant's signature was brought into existence by forgery or other improper means - applicant instructed lawyers to have letter forensically examined - no expert evidence ultimately brought by applicant - inconsistencies in evidence as to authenticity of signature - onus on applicant to justify intervention of Commission - onus not discharged - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 Ngo v Link Printing (1999) 94 IR 375 Bigg v NSW Police Service (1998) 810 IR 434 Mainalto v Palmer Corp Ltd (1995) 63 IR 357 Allison v Bega Valley Council (1995) 63 IR 68 Gunnedah Shire Council v Grout (1995) 134 ALR 156 CASES CITED: Saddington v BWIU and Another (1993) 49 IR 323 Sovereign House Security Services Ltd v Savage [1989] IRLR 115) Birrell v Australian National Airlines Commission (1984) 9 IR 101 The Australian Wool Selling Brokers Employers' Federation v The Federated Storeman and Packers Union of Australia (1976) 176 C.A.R. 884 Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273 Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565 HEARING DATES: 02/06/2004; 06/04/2004; 08/30/2004; 09/06/2004; 09/07/2004; 09/13/2004; 09/17/2004; 11/05/2004; 04/08/2005 DATE OF JUDGMENT: 05/02/2005 Mr M Jaloussis - solicitor W.G. McNally and Co LEGAL REPRESENTATIVES: Mr A Gee - solicitor TressCox Lawyers JUDGMENT: - 4 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Grayson, DP 2 May 2005 Matter No IRC 7289 of 2003 Bernard Macris and Pashion Pty Ltd Application by Bernard Macris re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 JUDGMENT [2005] NSWIRComm 141 1 The applicant alleges that he was dismissed from employment with the respondent, a clothing and textile industry employer, upon being told on Friday 4 December 2003 not to come to work the following Monday because there was no work for him. He alleges further that the respondent told him that he would be called when there was work. 2 The respondent denies that the applicant was dismissed alleging instead that the applicant submitted a written resignation upon which it was entitled to act in terms of finding a replacement employee. 3 The applicant claims that his signature appearing on the letter of resignation the original of which is in evidence in the proceedings is a forgery and further, if it is not a forgery then it is a signature obtained by the respondent by trickery and/or deception. 4 At the outset, the applicant abandoned his claim for reinstatement and now limits the relief sought to monetary compensation. The case, broadly and simply stated in that way, may be seen as a relatively straightforward contest on the facts. This however would give no indication of the evidentiary scope of the proceedings which were conducted against a background of union enquiries into the use of outworkers by the respondent and into various employment practices of the respondent said to be in breach of the industry award, the Clothing Trades (State) Award. 5 That being said, however, it is and remains the case that the primary issue for determination by the Commission is whether the applicant resigned his employment or whether as the applicant contends, his employment was terminated by the respondent in the days following his alleged stand-down by the respondent on or about 4 December 2003. 6 Throughout the proceedings, the applicant was emphatic that he did not tender a written resignation whilst the respondent by its directors Ms Lucina Wu and Mr Joseph Garana, is equally adamant that not only did the applicant resign on 4 December 2003 and acknowledge in subsequent conversations that he had done so but he also declined the respondent's invitation to reconsider his position and remain in the respondent's employ as a delivery driver. 7 The case is attended by significant forensic difficulty as I am disposed, given the state of the evidence and in particular given the absence of any evidence whatsoever from a hand writing expert or forensic document examiner as such experts are otherwise known. 8 This is notwithstanding receipt of the following correspondence from solicitors acting for the applicant: - The Associate to His Honour Deputy President Grayson By facsimile: 9258 0058 Dear Associate, RE: BERNARD MACRIS V PASHION PTY LIMITED IRC 7289 OF 2003 We act for the applicant in the above matter.It is the Applicant's contention that he did not resign from his employment with the Respondent. The Respondent has provided us with the original letter allegedly signed by the Applicant advising the Respondent of his intention to resign. We have been instructed to arrange for the letter to be forensically examined to ascertain the authenticity of the signature. We have also been requested by our expert to have the original copy of the Employer's Reply to Application For Relief in Relation to Unfair Dismissal made available to be forensically examined. We request that we be permitted to uplift same from the Commission and we undertake to return it upon completion of the forensic examination. We look forward to your reply as soon as possible. Yours faithfully, W.G. McNALLY & CO MICHAEL JALOUSSIS CC TressCox Lawyers Fax: 9228 9299 9 The applicant's solicitors were informed that the court file contained only a fax copy of the Employer's Reply and further that the Commission's Registry records revealed that the original of that document had not been filed. Accordingly, it was not possible to comply with the request. 10 Clearly though there was perceived merit in the stated intention of the applicant's lawyers to arm themselves with expert evidence which might lend weight to the applicant's contention that the signature on the letter of resignation upon which the respondent so heavily relies, was not his. 11 That there would be such perceived merit is hardly surprising when one looks at the signature on the original of the resignation letter and compares it with the applicant's signatures on each of the pages of the statement of evidence to which he attested and on the various delivery dockets forming Annexure H to Exhibit 14. Such a comparison to my eye and in the absence of expert evidence to the contrary, would compel a finding that the applicant is the sole signatory in each case. 12 I say that after giving due consideration to the evidence given by the applicant's ex-wife Rita Lai and his daughter Irene Macris as to the applicant's reading and writing skills in terms of his limited ability to compose the text of the resignation letter and as to the authenticity of the signature on the letter and I am bound to say although I do not question the earnest commitment to the applicant's cause in this regard, that their efforts to assert that the signature appearing on the resignation letter is not the applicant's signature were unconvincing. 13 Whether the signature was ever the subject of forensic examination as the applicant's lawyers were instructed to arrange, I am not to know but in the absence of such expert evidence I do not consider myself on the material available before the Commission, to be in a less advantageous position to assess the authenticity of the signature than others including the applicant's ex-wife and daughter. 14 It is also the case as the following extract of transcript reveals, that the applicant was ultimately conceded in cross-examination that the signature appearing on the resignation letter was his signature whilst at the same time asserting or continuing to assert that he did not sign the letter: - Q: You say in your statement, Mr Macris, that you were paid superannuation irregularly? A: No, I was not. First time I heard about super when the brother asked me to go upstairs to sign some papers for super. That's the first time I sign super for them. Q: This is a week or two before your termination? A: That's true, yes. They asked me to come upstairs, me and Joseph upstairs to sign papers for super. He said "this is for you and Joseph for super". Q: Joseph was standing with you? A: Yes, he was. It was the first time I signed papers for super with them. Q: (Approached) I put it to you that that's a letter you put on the desk of Lucina Wu on 4 December 2003? A: No, I did not. No, no way. This is typed. I don't have a type writer. Q: Is it possible that that is your signature? A: That's my signature, yes, but I didn't sign it. I never signed this, but I never signed this. First time I seen it, when my solicitor showed me. Q: Do you ever sign things without knowing what they are? A: No, I never signed anything. All I know they said go upstairs to the office to sign for super. I sign super, three or four pages for super, but this letter, I never done this letter. Never put no envelope for Lucina said I resigned from work. I never said that. Never done that. This is all lies. I swear on a stack of Bibles this is all lies. Q: When you say you were asked to sign? A: For super. Q: For super, three places. A: Super, that's all. Q: Is it possible there is one -- A: Must have been. Q: -- of the documents you signed? A: No, no way. Q: When you just said "must have been"? A: All I signed for super, but this one is not mine. This might have been underneath the blank papers with carbon paper underneath, I don't know because I never signed this. Q: Not possible you signed it --? A: No, never signed. Q: -- Without reading? A: No, I never signed it. I never put a letter. This is the first time I seen this, when my solicitor shown me. Because Joseph said "send this one to the union". Union has this one, copy of this one, but I never sign this. I never done this. Q: If I could tender letter headed "for Lucina from Bernard Macris" stamped at the bottom, received 4 December 2003. It also bears stamp saying 25 March 2004, which is regrettably a stamp from my office. JALOUSSIS: I object. I think it should be put appropriate through the person who produced the document, as the witnesses denied he signed it. HIS HONOUR: I think that is better. I may before, however, moving off the point, see the document please (shown to his Honour. Return to Mr Gee). GEE: I put it to you that you weren't asked to sign any superannuation documents, or anything else. A: Yes, I was. I was asked to go upstairs, me and Joseph go upstairs and sign the papers for super, and I signed the papers for super. That's what Joseph's brother said to me. That's the only time I sign the papers upstairs. Q: You say contributions to your superannuation were made on an irregular basis? A: First time I heard of it. Q: Of contributions being made to your superannuation? A: No, first time I heard they asked me to go upstairs and sign the paper for super. Only time I went upstairs for super. That's the only time, when Joseph and I went upstairs to sign the paper, that's it. Never heard of that before. 15 The import of the above evidence is firstly, that the signature on the resignation letter is indeed the applicant's signature and secondly, that it could only have appeared or been imprinted on the resignation letter by the fraudulent and unauthorised act of the respondent which represents something of a departure from the applicant's initial assertion that the signature was not his. 16 As the respondent submits, it can be accepted that the applicant's limited reading and writing skills would ordinarily cause him to seek assistance frequently or usually from his daughter in the drafting of letters or filling out forms and so on but it can equally be accepted that the applicant would not have been averse to asking someone for assistance in the composition of a letter of resignation and it is not for the respondent (or for that matter the Commission) to speculate upon who may have provided such assistance. 17 Furthermore, there is the sworn evidence of the respondent witnesses that the applicant was seen walking out of Ms Lucina Wu's office moments before she discovered the resignation letter on her desk and that the applicant in subsequent discussion in particular with Mr Joseph Agim acknowledged that he had resigned, offered reasons for his resignation and declined when asked to reconsider it. 18 Again without expert evidence to the contrary, it is difficult to accept that the letter of resignation is other than authentic and it is not to the point as I am disposed, that the applicant at some later stage through his union, sought to be reinstated or conversely, at earlier stages throughout his employment had sought advice from and had been of assistance to the union on award compliance issues. 19 As the respondent argues, the law relating to resignation is well settled and notice of resignation once given, cannot be unilaterally revoked (see Mainalto v Palmer Corp Ltd (1995) 63 IR 357 affirming the principle set out in Sovereign House Security Services Ltd v Savage [1989] IRLR 115). The respondent could have allowed the applicant to withdraw the resignation but having satisfied itself as to the applicant's unambiguous intentions, was within its legal rights to recruit a replacement delivery driver and in the process, to refuse the union's demand to restore the lost employment relationship. (Birrell v Australian National Airlines Commission (1984) 9 IR 101; Saddington v BWIU and Another 49 IR 323 and Gunnedah Shire Council v Grout (1995) 134 ALR 156) 20 Further and as cited by the respondent, Moore J in The Australian Wool Selling Brokers Employers' Federation v The Federated Storeman and Packers Union of Australia (1976) 176 C.A.R. 884 held: - If the party who gave the notice, be he the employer or the employee, wishes to reverse that situation and to endeavour to ensure continuation of employment, the giving of a document purporting to withdraw notice of termination is in law no more than an offer to treat for a new contract. If the other person, again be he the employee or the employer, declines to accept that offered treating, the original notice continues and the employment is terminated. 21 It is to be noted that this is not a case where a resignation can be said to have occurred in the heat of the moment in which case, if withdrawn without delay, it could be held to be ineffective in the termination of employment (Ngo v Link Printing (1999) 94 IR 375) and nor can it be contended here that the ostensible act of termination namely the applicant's resignation was in effect a response to and consistent with a desire by the respondent that such a resignation be forthcoming or conversely, that the conduct of the respondent compelled or unduly influenced the applicant to resign. Such matters of course, if properly established are necessary ingredients in founding the doctrine of constructive dismissal (see for example Allison v Bega Valley Council (1995) 63 IR 68). 22 The applicant must satisfy the Commission that intervention is warranted (Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273; Bigg v NSW Police Service (1998) 810 IR 434; Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565) and I am simply unable on the evidence as it stands to conclude as the applicant urges, that the letter of resignation was a fabrication on the respondent's part intended as a retaliatory measure against the applicant who had been assisting the union in its endeavours to locate outworkers. 23 The application must therefore be dismissed and I do so accordingly. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.