Industrial Relations Commission of New South Wales CITATION: Murray v John and Pamela Cocker t.as Hastings Marine [2006] NSWIRComm 1003 APPLICANT Peter Bradley Murray PARTIES: RESPONDENT John and Pamela Cocker t/as Hastings Marine FILE NUMBER(S): 3268 of 2005 CORAM: McLeay C CATCHWORDS: Unfair dismissal - service manager - incidents at work - applicant suffering from depression - limited support for respondents - OHS implications - respondents claimed applicant resigned - continuing communication between parties - timely medical certificates not provided - applicant's wife not called, Jones v Dunkel inference - right to claim constructive dismissal waived - applicant estopped from withdrawing waiver - found, applicant resigned - application dismissed LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Commonwealth of Australia v Verwayen (1990) 170 CLR 394 HEARING DATES: 16/12/2005 DATE OF JUDGMENT: 01/24/2006 APPLICANT Mr I Paul, Solicitor GWM Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr M Magennis, Solicitor Falvey Associates Lawyers DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: McLEAY C 24 January 2006 Matter No IRC 3268 of 2005 Peter Bradley Murray and John and Pamela Cocker t/as Hastings Marine Application by Pater Bradley Murray re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2006] NSWIRComm 1003 1 This is an application by Peter Bradley Murray for unfair dismissal against John and Pamela Cocker t/as Hastings Marine pursuant to section 84 of the Industrial Relations Act 1996 ("the Act"). The application shows that Mr Murray was dismissed from the position of Service Manager on 21 June 2005. He had been employed by the respondent since September 2002, being promoted to the position of Service Manager in January 2003. 2 The respondent claimed that Mr Murray resigned from his position on 24 May 2005, and that there was no dismissal within the meaning of section 83(1) of the Act. The evidence 3 The evidence showed that there had been a dispute between Mr Murray and an apprentice who also worked for the respondent in September 2004, when the apprentice picked up a piece of wood either to strike Mr Murray or to defend himself against Mr Murray, in accordance with the opposing versions of events provided in evidence. Following the report of the incident to Mr Cocker, Mr Murray was concerned that nothing was done to modify the apprentice's behaviour. Mr Murray's doctor prescribed anti-depressant medication for him following the incident. Mr Murray said there were numerous incidents of verbal abuse by the apprentice, up to and including 4 May 2005, not all of which were reported to the respondent. 4 In May while the Cockers were overseas, Mr Murray said he had cause to send the apprentice home on pay for two days, requiring him to attend TAFE the following week and return to work on 16 May. On 16 May he said that the apprentice became belligerent and went home. When Mr Cocker returned from leave he told Mr Murray that the apprentice "won't do it again". Mr Murray said he felt despondent, depressed and confused. He felt that he was not receiving respect from the apprentice or the appropriate level of support from the respondent. 5 On 24 May Mr Murray had arrived at work intending to work, but felt he was not able to proceed. According to his version of events, Mr Murray then told Mr Cocker that he was not well, could not work that day and was going home. According to Mr Cocker, Mr Murray said he was not going to work there any more, returned his keys and left. Mr Cocker said he was surprised by Mr Murray's resignation. 6 This variation in the terms of the conversation represents the crux of the difference between the parties. Mr Murray has always maintained that he went home sick, while Mr Cocker has always maintained that Mr Murray resigned. 7 After 24 May, the evidence showed that Mr Murray: § made a doctor's appointment with his general practitioner Dr Vo for the first available time, being Monday 30 May, and said that he left a message to advise Mr Cocker that he had done so, § attended the medical appointment on 30 May and obtained a medical certificate stating he was unfit for work until 6 June, but he did not provide the certificate to the respondent at that time, § wrote a three-page letter to Mr and Mrs Cocker explaining the reasons for his actions on 24 May, § left a message that he would attend the workplace on 4 June, and did so to be advised that Mr and Mrs Cocker would not be back until 6 June, § met with Mr Cocker on 6 June and discussed meeting with Mrs Cocker and the apprentice in an effort to resolve issues with the apprentice, § attended a second medical appointment with Dr Vo on 6 June and received a certificate stating he was unfit to work up till 13 June, again not providing the certificate to the respondent at the time, § was treated by Dr Gregory on 16 June and sent a certificate to the respondent stating that he was unfit to work until 23 June, § made several unsuccessful attempts to confirm a time for the proposed meeting between himself, Mrs Cocker and the apprentice. 8 On 21 June, Mr Murray said he received a call from Dr Gregory's office, saying that office had had a call from Mrs Cocker questioning why a certificate had been sent to them since Mr Murray had resigned a month earlier. It was following this call that Mr Murray initiated the current proceedings. He also arranged for his toolbox and other belongings to be collected from the workplace. 9 On 31 May Mr Cocker said he received a letter from Mr Murray outlining why he had left his job. That letter did not mention illness. On 1 June Mr Murray's wife arrived at the workplace and, according to Mr Cocker's evidence, asked Mr Cocker to sack the apprentice so that Mr Murray could return to work. Mr Cocker said that he told her that he employed someone else after Mr Murray resigned. Mr Murray did not mention either the letter or his wife's visit during his evidence-in-chief. During cross-examination he agreed that he wrote the letter but said he did not know of his wife's visit at the time. 10 The letter provided to Mr and Mrs Cocker on 31 May is telling. Its opening paragraph reads as follows: This letter's purpose is to ensure that there is no misunderstanding and to clarify what happened to cause me to leave on Tuesday May 24th 2005. It then continues over three closely-spaced typed pages to set out difficulties arising from the attitude and behaviour of the apprentice and the lack of satisfactory response by the respondents. 11 The letter concludes as follows: I did not want to leave that morning, I had hoped to be able to have a serious discussion with you both. Unfortunately when I arrived and opened up I just tensed up and became very anxious and felt there was only one option for me and that was to try to explain to John that I could not take it any more, that any time spent around Matt caused me to stress out. I cannot remember exactly what I said. I only remember almost breaking down and losing it, driving away and then being at home. I only know that what happened was a direct result of an untenable situation not created or prolonged by myself and that my only avenue of relief, my only option was to act as I did. As much as I would like to return to my job ......................[ sic ] I beseech you to tell me why I find myself in this situation and why does Matt still have his job? 12 Mr Cocker said he did not receive any message from Mr Murray until the letter arrived in the mail. It did not refer to sick leave. No medical certificate was provided. He saw it as an attempt to resolve personal issues between Mr Murray and the apprentice Matt. It did not cause him to have a different view about Mr Murray's departure from his employment than that which he had initially formed. 13 Mr Murray confirmed that he did not provide either of his earlier medical certificates from Dr Vo to the respondents, prior to sending the certificate from Dr Gregory on 16 June. He also confirmed that in his discussion with Mr Cocker on 6 June he did not mention sick leave or verify that he was on leave. He acknowledged that his employer was entitled to receive the medical certificates if he was claiming to be on leave, and described his forgetfulness in this area as an effect of his depression. He said he was "not in a state of mind that was 100 per cent at that point". 14 Mr Cocker's evidence was that he did not have the opportunity to question Mr Murray or comment on what he said on the morning of 24 May. He said that Mr Murray said what he wanted to say and then "stormed off" without providing Mr Cocker an opportunity for further discussion. Mr Cocker said he was caught by surprise and had concern that he needed a service manager for the proper conduct of his business. He then approached another person whom he employed to do the necessary work of the position vacated by Mr Murray. The person was a tradesperson but without Mr Murray's degree of experience. Submissions on behalf of the applicant 15 Mr Paul for the applicant submitted that Mr Murray was unfairly dismissed while he was on sick leave. He said the respondent was aware of Mr Murray's medical condition and that there had been a serious incident in the previous weeks. 16 He further submitted that there was a reasonable inference to be drawn from the continual communication between Mr Murray and the respondent in the period following 24 May that the employer-employee relationship was continuing. The indications of the continuing relationship were: correspondence from Mr Murray; telephone communication from Mr Murray; a meeting with the respondent and attempts to hold further meetings; provision of medical certificates; and leaving his toolbox at the workplace. Also, Mr Paul submitted that a further indicator was that the application for unfair dismissal was not filed until after the telephone call to the doctor's office when Mrs Cocker stated that Mr Murray had resigned. Submissions on behalf of the respondent 17 Mr Magennis for the respondent submitted that the uncontradicted evidence that the applicant's wife asked for his job back was significant, leading to a Jones v Dunkel inference. Also, no witnesses were called to refute the respondent's statement that other employees did not receive telephone messages alleged to have been made by the applicant. 18 Mr Magennis further submitted that it was highly improbable that the applicant could have ignored all the indicators that pointed to the termination of the employment arrangement rather than his being on leave. These indicators were that he was sent termination pay and a pay slip to that effect, that his wife attended the workplace on his behalf to ask for his job back, that he did not provided medical certificates in a timely way, that he handed in his keys which he had never done before, that he wrote a lengthy letter without mentioning sick leave. 19 By not providing medical certificates in a timely way, the applicant left himself open to a claim that he had abandoned his employment, submitted Mr Magennis. It was two weeks between his last day at work and the first communication with Mr Cocker. Mr Magennis submitted that Mr Murray did resign and afterwards changed his mind, wishing he could have his job back. Consideration 20 There are some occupational health and safety implications arising from the first incident about which Mr Murray complained to Mr Cocker. To have a chat to both parties is insufficient response by an employer, especially when there is ongoing friction between them. (I note that Mr Cocker said that the apprentice was given a warning letter after the incident in September 2004.) Mr Cocker must have been aware of the ongoing friction in the workplace. Even Mr Deeks was aware of disagreements between them. Mr Cocker stated that Mr Murray "tends to get aggressive" when his authority was questioned. Mr Cocker's inclination to give more credibility to the apprentice that to Mr Murray was based on his observation of Mr Murray in other circumstances. 21 Mr Cocker's response to Mr Murray and to the apprentice would appear to be less than ideal, based on the evidence before me. However, while the disagreements between the employees and the lack of adequate response from the employer formed the background to the events of 24 May, they do not influence the words used on that day. 22 Much of the detail of matters provided in evidence was disputed. For example, Mr Murray had said he left early on 20 May because he was not well, while Mr Cocker said that Mr Murray left early to go to the fishing tackle shop before it closed. Mr Murray said he collected his lunch box before he left on 24 May while Mr Cocker said he did not do so, but left empty-handed. Mr Cocker said that Mr Murray handed him his keys when he left; Mr Murray said he left his keys in their usual place. Further, Mr Cocker said that he questioned his staff, none of whom recalled any message from Mr Murray on or around 26 May. I class these together as minor issues for the purpose of these proceedings. 23 The evidence of Alan Deeks about a conversation with Mr Murray in September 2005 does not assist the Commission in determining the outcome of this matter, except to the extent that Mr Deeks' recollection of the alleged conversation with Mr Murray is consistent with the verbal evidence given by Mr Murray under cross-examination. The absence of other potential witnesses, particularly the absence of Mr Murray's wife, allows the inference as submitted that his case would not be advanced by her evidence. 24 Clearly, the letter Mr Murray wrote after 24 May did not refer to illness or sick leave, nor did it refer to a resignation. The reference to leaving the workplace was intended by Mr Murray to leaving temporarily on sick leave, while it was accepted by Mr Cocker as leaving the position permanently by way of resignation. Because it makes no reference to any intention to return to work, it is reasonable that the respondents accepted it on face value as an attempt to reconcile differences. 25 Under cross-examination Mr Murray confirmed that he did not recall the exact words he used to Mr Cocker on the morning of 24 May. This is consistent with his comment in the letter of 31 May and his alleged conversation with Mr Deeks some time later. He reiterated that he said he had not had much sleep "with this last episode with Matt", he was not well and he was going home. He said he was very clear about what he meant to say. However, I am satisfied that what he did say and what he meant to say were not necessarily the same thing. As Mr Murray said, he was on medication for depression at the time. 26 I am satisfied that Mr Murray had not told Mr Cocker about attending his doctor or not being well, because that is consistent with Mr Murray not raising these issues in the letter he wrote to the Cockers after 24 May. I am further satisfied that when Mr Murray asked for a meeting Mr Cocker thought it was to explain the letter. There was no reason for Mr Cocker to change his understanding that Mr Murray had resigned. It was not until he received a medical certificate on 7 June that he first wondered why that happened. Presuming it was a clerical error, Mrs Cocker contacted the doctor's office. In the meantime, when Mr Murray did not take his termination pay with him when he attended the workplace for a meeting on 6 June, his termination pay and final pay slip were mailed to him. All of the actions of the respondent are consistent with the understanding that Mr Murray had resigned on 24 May. 27 I am also satisfied that Mr Murray did not believe that he had resigned, but had left because the work situation was causing him great stress. He may have believed he was taking leave. However, his memory of the meeting was unclear. He said that he was leaving. I accept that he handed his keys to Mr Cocker. This in itself was an unusual event, sufficient to cause Mr Cocker to have no doubt that he was not intending to come back. I also accept that Mr Murray refused to work with the apprentice and that Mr Cocker had no intention of dismissing either the apprentice or Mr Murray. Constructive dismissal 28 At the end of proceedings, Mr Paul argued, in the alternative to his primary submission that the applicant's employment was terminated by the respondent, that there was a constructive dismissal arising from all the stresses and strains at work. Mr Magennis submitted that the applicant was estopped from putting the alternative position by correspondence between the parties' representatives. 29 Mr Magennis relied on correspondence from himself dated 26 July 2005 in which he asked: 3. Is it alleged that the applicant was constructively dismissed? If yes, please identify precisely the matters, facts and circumstances upon which it is alleged that the applicant was constructively dismissed. and the response to that enquiry, dated 23 August, in which Mr Paul stated: 3. It is alleged that the Applicant was dismissed. 30 The principles underlying the doctrines of estoppel and waiver of rights were set out in a decision of the High Court in Commonwealth of Australia v Verwayen (1990) 170 CLR 394. The most pertinent points relating to the applicant having waived his rights to claim a constructive dismissal are as follows [at 396]: Per Brennan J. The doctrines of waiver and election are distinct for a right may be waived though there is no alternative right inconsistent with it. A mere intention not to exercise a right is not immediately effective to divest or sterilize that right, as a right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it. ... ... Per Toohey J. Within the adjudicative process waiver may be found in the deliberate act of a defendant not to rely upon a defence available to him. The unequivocal renunciation of a defence available to and for the benefit of a party constitutes waiver of that party's rights to reply upon that defence. Waiver in this sense is not capable of being withdrawn. Per Gaudron J. A party to litigation will be held to a position previously intentionally taken with knowledge if, as a result of that earlier position, the relationship of the parties has changed, whether or not detriment is actually established. 31 I am satisfied on the basis of the correspondence between the parties' representatives that the applicant waived his rights to claim that he was constructively dismissed. It is clear from the application of the principles including those set out above that the applicant retained a right to remove the waiver up until the time of its exercise, that is, until the matter was arbitrated, but he did not do so. In the proceedings, there was no opening statement on behalf of the applicant; nor was there any examination of witnesses relating to the question of constructive dismissal. In other words, both prior to the arbitration and throughout the evidentiary component of the arbitration, there was no indication that the waiver had been withdrawn. It was only in final submissions that the applicant's solicitor claimed constructive dismissal in the alternative to his primary position that the applicant was dismissed. Mr Magennis countered with an objection of the basis of estoppel and claimed that the case would have been argued differently if the applicant had not earlier waived his rights in regard to constructive dismissal. 32 The timing of the attempt to rely on a right which had been waived is such that the applicant is, in fact, precluded from doing so. The principles do not allow the applicant to claim a right which he had earlier waived, with all the evidence having been presented and/or challenged by the respondent on the assumption that the respondent was entitled to make. Conclusion 33 I am not convinced that Mr Cocker contrived the situation in any way to dismiss Mr Murray. I accept that it was fortuitous that the respondent was able to fill the vacancy created by Mr Murray's departure. I do not accept that the communication between the parties after 24 May created a reasonable inference that the employee-employer relationship was a continuing one. 34 Mr Cocker's actions since 24 May and his evidence in these proceedings have been consistent with his statement that Mr Murray resigned by leaving his keys, by not providing a medical certificate until 16 June, not enquiring about sick leave and not mentioning illness in his letter of 31 May or at the meeting on 6 June. Mr Murray's actions, until he provided a medical certificate to his employer on 16 June, some three weeks after his last attendance at work, were inconsistent with his argument that he was on sick leave. 35 It is most unfortunate for the applicant that communication between the parties had not been clearer. I accept that the respondents may not have clearly understood Mr Murray's ongoing concern about issues at work or their responsibilities in regard to them. The style of communication reflected in the letter to the respondents and in the evidence generally indicates that intended messages were not always understood. 36 Whether he intended to do so is a question that cannot be answered on the evidence, but it is the applicant's actions, rather than his intentions, that lead me to the conclusion that Mr Murray resigned. 37 Mr Murray has waived his rights in regard to constructive dismissal. Therefore, while the reasons for his actions on 24 May are set out extensively in his correspondence to the respondents, they do not require any comment from me. 38 Accordingly, the application is dismissed. 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.