Industrial Relations Commission of New South Wales CITATION: Olagas v Impresstik [2006] NSWIRComm 1057 APPLICANT; PARTIES: Mr. A. Olagas RESPONDENT: Impresstik Pty Ltd FILE NUMBER(S): 5439 of 2005 CORAM: Ritchie C Claim for unfair dismissal Applicant long term employee proceeded on stress leave,claim harrassment from supervisor, provided regular medical certificates, during absences paid from leave entitlements. Claimed workers compensation subsequently rejected. On presentation on last certificate had a meeting with management. Employee would not return and work under old supervisor,employee said he would get his union involved-a dispute exists CATCHWORDS: Employer believed employee had resigned. Phone calls after between employer and employee and union took place. Employer sent a letter claiming employee had abandoned his employment -denied by employee. Manager who wrote termination letter unaware of phone discussion between union and another manager. Commission found that employee had not abandoned his employment but that the parties were in dispute. Compensation awarded. LEGISLATION CITED: Industrial Relations Act 1996 CASES CITED: Boyd v Godfrey Hirst Pty Ltd and anor.IRC of Aust.1995AILR. HEARING DATES: 27/04/06, 03/05/06 DATE OF JUDGMENT: 06/16/2006 APPLICANT: Mr. I. Morrison of the AFMEPKIU LEGAL REPRESENTATIVES: RESPONDENT: Mr. Colin Argyris of the Company. DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: Ritchie C. 16 June 2006 Matter No IRC 5439 of 2005 IN THE MATTER OF: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (on behalf of Alaattin Olagas) and Impresstik Pty Ltd. Application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries on behalf of its member Alaattin Olagas re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996. DECISION [2006] NSWIRComm 1057 Background. 1 Mr. Alaattin Olagas (the applicant) commenced employment with Impresstik Pty Ltd (the respondent) on 2 February 1994 and was terminated by correspondence dated 12 October 2005 signed by a Mr. L. Brackenreg of the respondent. In short the applicant was terminated on the grounds of abandonment of employment. 2 The applicant's union filed a claim for unfair dismissal on 24 October 2005 and conciliations was held on 17 November, 6 December and 14 December 2005. As the conciliations were unsuccessful a timetable for the filing and serving of evidentiary material was provided to the parties. 3 Hearing of the application was held on 27 April and 3 May 2006 when at the completion of proceedings the decision was reserved. 4 Mr. Alaattin Olagas was represented by Mr. I. Morrison of the applicant union, and the respondent was represented by Mr. C. Argyris of the respondent. Applicant's Case. 5 The applicant stated that he was employed as a storeman and was paid at the rate of $657.52 per week. 6 The applicant stated that during the majority of his employment with the respondent, he carried out the role of a storeman. It was the statement of the applicant that as a consequence of the respondent loosing some major clients in 2000 his daily quantum of overtime hours was reduced. He also saw that from this time, his working relationship with his supervisor Mr. Colin Argyris started to deteriorate. He stated that Mr. Argyris said he was going to make it hard on him and that he was subjected to petty restrictions. Harassment from Mr. Argyris continued through the first half of 2005, which the applicant said affected his stress levels both at work and at home. 7 On 5 July 2005 he had a meeting with Mr. Argyris and Mr. Ram (the Systems Manager) concerning what he believed was a new list of duties. He alleged that Mr. Argyris stated that the Company as a consequence of the new federal industrial laws the Government was going to pass, could fire him at any time. The applicant stated that he was no longer going to put up with this harassment and was going to see his doctor. That was his last day at work. 8 He actually went to see his doctor on 7 July 2005 and received the first of a number of WorkCover certificates stating that he was suffering from reactive depression, anxiety/depression due to work place. 9 On 22 July 2005 the applicant hand delivered a letter to the owner of the respondent Mr. Werner Mokesch (Ex A annex. C). It outlined his concerns about the treatment he was receiving from Mr. Argyris and his reduction of daily overtime and sought assistance from Mr. Mokesch. 10 On 1 August 2005 the applicant returned to his place of employment to provide his current WorkCover certificate and to provide Mr. Mokesch with an amended copy of his letter dated 22 July 2005. Whilst at the factory the applicant spoke with Mr. Luke the Factory Manager, who advised the applicant that he had not been spoken to yet by Mr. Makesch concerning the applicant. He also spoke with Mr. Mokesch who advised him that he was receiving conflicting responses from the people he had spoken to. The applicant concluded that this was a lie because, in his view, one of the first people he would have spoken to, would have been Mr. Luke. 11 On 30 August 2005 the applicant stated that he applied for another job as a forklift/storeman, which he commenced on the following day in a casual capacity. He has worked ever since for this other company earning $729.44 per week. He took this other job so as he had money coming in as he had instructed the respondent on 30 August, to cease paying him via his long service leave credits. 12 The last WorkCover certificate dated 13 September 2005, stated under management plan: To return to work and not be harassed and abused by supervisor And that he was fit for permanently modified duties from 14 September 2005 as per management plan. 13 On 15 September 2005 the applicant again attended the factory and provided his latest WorkCover certificate. He at the same time attended a meeting with Mr. Luke and Mr. Ram. The applicant stated that he strongly emphasised that the respondent had to implement the management plan contained in the latest WorkCover certificate and suggested that he was prepared to involve his trade union to try and resolve the issue. Whilst at the meeting the applicant stated that he was not happy working at the respondent but did not say that he was leaving. He did wish to retrieve some of his tools from his locker and during that exercise it was suggested that he take everything from his locker, which he did. 14 He stated that he was prepared to come back to work but not work under the supervision of Mr. Argyris. This was not acceptable to the respondent. 15 In cross examination he stated that approximately one week after 15 September, he received a phone call from Mr. Ram as to what was going on. The applicant responded to Mr. Ram that he was waiting for his union to get back to him and approximately a further week later he received a phone call from Mr. Vine of his union. He explained to Mr. Vine what had happened and sought assistance from his union. He understood that very soon after this, Mr. Vine spoke with Mr. Ram. 16 Between the phone call from Mr. Ram and the termination letter from Mr. Brackenreg, the applicant did not receive any communication from the respondent. 17 The letter from the respondent dated 12 October signed by Mr. L. Brackenreg stated that the respondent had considered that he had abandoned his employment from 31 August 2005. 18 The workers compensation claim filed by the applicant was rejected by Employers Mutual Indemnity in August 2005. 19 The applicant contacted his union on receipt of the letter of 12 October and sent them a copy. 20 The union on behalf of its member submitted that the applicant did not wish to return to work for the respondent and sought the maximum compensation of six months pay. Respondent's case. 21 The following persons gave evidence in support of the respondent's case: Mr. Colin Argyris Mr. Laurie Brackenreg Mr. Hitendra Ram Mr. Rod Luke 22 Mr. Argyris stated that he was the applicant's supervisor and carried out the role of Production Planner/Purchasing Officer. He had worked for the respondent since 1986. In his evidence Mr. Argyris said that the applicant's overtime hours were reduced in 2001 as a consequence of a downturn in business and a subsequent instruction from the Managing Director. A meeting took place between the applicant's union and the respondent, which resulted in a number of the applicant's duties being stopped. After the meeting Mr. Argyris stated that the applicant came up to him and accused another employee of "f….g my overtime up". 23 The allegation of the applicant being prevented from making personal calls was rejected by Mr. Argyris. He also rejected the applicant's accusation that he was being harassed or victimised as a consequence of the decrease of overtime being worked. He was offered overtime in a different section of the factory/warehouse but did not work any. 24 Mr. Argyris denied that he threatened the applicant with the ease to terminate him under the new Federal industrial Laws that were to be promulgated. He stated that he did not have the power to terminate nor did he know anything about the new laws. 25 He also denied the applicant making any comment in the meeting on 5 July 2005 about his health issues or harassment. At the end of the meeting the applicant stated that he was going to see his doctor and go on stress leave. 26 Mr Argyris stated that he did not speak to the applicant again and took no part in any discussions with management concerning the termination of the applicant. 27 Mr. Rod Luke is the Production Manager of the respondent. He stated that he was present at the meeting on 15 September 2005 with the applicant and Mr. Ram. He stated that at that meeting the applicant stated that he was going to call his union and that they will want to have a meeting with Impresstik. He also said that the applicant stated that he could no longer work under Colin Argyris due to harassment nor work for Werner Mokesch because he did not help the applicant after he had read his letter. The applicant also said to "make me an offer and I will leave". He would be happy to be paid back his holiday and Long Service Leave or he would talk to his union that day about what he was allowed to claim. This offer was not agreed to at the time by Mr. Ram, as he said he would have to speak with the M.D. Mr. Luke then accompanied the applicant to his locker which he emptied and then left the building. It was agreed by Mr. Luke that the applicant left his personal fan in the building. 28 In cross examination Mr. Luke stated that he had witnessed arguments between the applicant and Mr. Argyris post 2004. 29 On 12 October Mr. Luke stated that he was advised by Mr. Brackenreg that the applicant was no longer employed by the respondent. Mr. Brackenberg said to Mr. Luke that " from 15 September we haven't heard from Alan anymore and he has abandoned his position…". 30 In questions from the Commission Mr. Luke stated that neither the applicant tendered his resignation at the meeting of the 15 September nor did Mr. Ram terminate him. 31 Mr. Hitendra Ram is the Systems Manager for the respondent. He is also the Human Resources Manager, Safety Manager and Quality Manager. He stated that the applicant had always given him his WorkCover certificates and on 15 September 2005 he gave him his latest certificate. A meeting was held from Mr. Ram's point of view to prepare a plan for the applicant's return to work. Mr. Ram said that he asked the applicant whether he was prepared to come back and work. Mr. Ram stated that the applicant said at the start of the meeting "that this is going to be an industrial matter and I will have to contact my union about getting this resolved". Mr. Ram asked the applicant was he prepared to come back to work and the applicant replied in the negative. The applicant was also asked was he prepared to work under Colin Argyris and Werna Mokesch or Imprestik and again he replied in the negative. The applicant stated that if his leave entitlements were reversed he would be happy to walk away. Mr. Ram confirmed that he would ring the applicant in a week's time. At that time the applicant would give Mr. Ram the name and contact number of the union official to talk to about this industrial issue. Mr. Ram confirmed that at no time did the applicant state he was resigning or quitting. 32 Mr. Ram stated that he was not given an opportunity to develop a return to work plan with the applicant during the meeting on 15 September, because of the attitude of the applicant in stating that it was going to be an industrial dispute. 33 Mr. Ram said that he rang the applicant approximately one week later but at that time the applicant did not give him the union's number. Mr. Ram waited for the applicant to call back with the number but when he received no call he again rang the applicant on 5 October and at that point obtained the union official's mobile phone number and the name of the official to call a Mr. Vine. 34 In cross-examination Mr. Ram stated that he and Mr. Vine spoke on the morning of 12 October 2005 about the applicant's workers compensation issue and that Mr. Vine was reported to have stated that the applicant " would like his leave entitlement to be reversed and that way he would actually leave Impresstik." Mr. Ram also confirmed that Mr. Vine also stated that it was management's responsibility to ensure that a worker was not harassed or abused by his supervisor at the work place. 35 Mr. Ram stated that he had no knowledge that the letter of termination of the applicant was being prepared on the same day as his conversation with Mr. Vine. In later evidence he did advise that he saw a draft of the letter in the afternoon of 12 October. He did after the phone call with Mr. Vine report the conversation to the Financial Controller, Mr. Brackenreg. It was his evidence that the future employment of the applicant was discussed between himself and the Financial Controller and the Financial Controller made a phone call to the printing body to find out what could be done. In Mr. Ram's view he did not believe he influenced the decision to terminate the applicant. 36 Mr. Ram confirmed that neither during his telephone call with Mr. Vine or with the applicant did he raise his proposed return to work plan. 37 Mr. Ram stated that at weekly meetings of payroll he discussed with Mr. Brackenreg the latest medical certificate and what was being paid. Finally he said to Mr. Brackenreg that he was waiting for the union to contact him because it was an industrial dispute. 38 In response from questions from the Commission, it was Mr. Ram's view that by his comments on 15 September the applicant had resigned. 39 Mr. Brackenreg gave evidence to state that he was the Financial Controller and Paymaster for the respondent. He stated that he had sought information on the applicant's absence from work and his likely return date. He was aware that the applicant's claim for workers compensation had been rejected by Employers Mutual Indemnity Limited. On 1 September he received a phone call from the applicant directing him to cease paying him from 31 August utilising his Long Service Leave credits. 40 He stated that he was aware from a debriefing he had received on 15 September from Mr. Ram, that the applicant had resigned in front of two officers of the company. 41 Having not heard anything from the applicant, Mr. Brackenreg wrote to the applicant on 12 October, nominating 31 August as the day of abandonment, as a fair compromise in accordance with the Abandonment of Employment provisions (4.7) of the Metal,Engineering and Associated Industries (State) Award. 42 In examination in chief Mr. Brackenreg stated that he decided to draw the matter to a close because some 14 weeks had passed since 6 July 2005. He had not heard from the applicant be it 3 or 14 days after 15 September 2005. Mr. Brackenreg said that he had got tired up on a number of administrative and other issues and on 12 October which was the end of another pay cycle week he decided to act. In determining what action to take he did not speak with any employer organisation. Mr. Brackenreg stated that he was not aware as at 12 October that there had been discussions between the applicant's union and Mr. Ram concerning the applicant. He was unaware of any employee of the respondent having discussions with the union post 15 September 2005. 43 In cross examination Mr. Brackenreg did remember that he spoke with a Mr. Bruce Campbell of the Union on 19 September about the applicant. Mr. Brackenreg determined not to contact the applicant prior to termination so as not to coerce him in any way because of the issue of stress. He would not put him on the spot about when he would return for that reason. 44 The applicant's stress workers compensation claim was the first of its kind that the respondent had received and in Mr. Breckenreg's view the applicant's treating doctor failed to contact the respondent. It was therefore Mr. Breckenreg's view that the doctor was uniformed. 45 Mr. Breckenreg also stated that on 1 September he had prepared himself to terminate the applicant without telling anyone. He had only become aware of the phone calls that took place after 15 September, between the union and Mr. Ram during the week of this hearing. 46 In response to a question from the Commission as to why the applicant was terminated from the respondent as at 31 August and not 15 September (the date the respondent states the applicant resigned), it was the date determined by Mr. Breckenreg. Mr. Breckenreg did not accept from a payroll point of view that the applicant had resigned on 15 September. He wanted to see a signature on a piece of paper. 47 The Commission asked the following questions to Mr. Breckenreg: Q. Why was no attempt made to contact him prior to 12 October when it became apparent to you that he had abandoned his employment, why did you not for greater caution attempt to contact him to actually make sure that that was the case? A. I appreciate where you're coming from. The is still the same, that on 15 September, I resolved –sorry, on 1 September, I resolved to wait 17 days, three days plus 14 days to be absolutely sure. Mr. Ologas pre-empted my actions on the 17th and 19th by coming into the company on the 15th. He then indicated that he would involve the union in further action, industrial action, I think was the term. So I resolved not to speak to him on a coercive basis. I had no idea of the basis upon which it was going to be based, that I would resolve to wait three days plus 14 days again, and as I indicated earlier, I got busy and I left it nearly three weeks instead of 17 days. So that's my answer. Q. You're aware that Mr. Ologas, even after 1 September, still brought in his certificates personally and hand-delivered them ? A. He brought it in on 1 September and then on 15 September. I was not aware of the 15 September visit. Q. And you made the determination on 1 September that you were going to terminate him for abandonment of employment or you'd made that decision already ? A. I had prepared myself for it, yes. Q. Any you shared this with nobody ? A. That is correct and Q. If the case is that was what he said on 15 September, you were then –then there was a phone call on 19 September, but come 12 October, in your view time had passed, you had received no communication from the applicant and/or his representative, so in your view, with respect to 4.7, he was terminated for abandonment of employment ? A. Correct. Considerations and Decision. 48 The letter of 12 October 2005 directed to the applicant signed by Mr. Brackenreg stated: " Please note that since September 1st,2005 at 10:37am Impresstik has received no notification from you as to when you intend to return to work. On this date you merely requested Impresstik to "please pay me nothing and revise payment of Long Service Leave to cease from August 31st [and not September 2nd, as per signed request to Paymaster ]". Also , on Thursday September 15th at approximately 4:45pm you verbally advised our Systems Manager, Mr Hitendra Ram [in the direct presence of our Production Manager, Mr Rod Luke] that you could no longer work for your supervisor Mr. Colin Argyris, the Director, Mr. Werner Mokesch or indeed the company, Impresstik Pty Ltd. It is on these grounds therefore that Impresstik considers you to have abandoned your position effective on August 31st ,2005 and thus has terminated your employment and will seek another applicant for the same position, forthwith. Impresstik will therefore pay to you the remaining balance of your Long Service Leave entitlement as at August 31st, 2005 in the next available weekly run-to the banking details as currently held in our records. Appropriate payment details will be sent to you shortly. To be precise [and with your agreement], your absence on and after July 6th, 2005 was classified as Sick Leave{rolled into Annual Leave upon expiration of your S/Leave entitlement]-under the definite understanding that should your claim be accepted as a viable Workers Compensation issue, such payment records would be amended to re-assign this absence from your other entitlements to W/Compensation. On August 15th, 2005 you were notified by Employers Mutual Indemnity [Workers Compensation] Limited that your Workers Compensation Claim was rejected, but although inconvenient at the time, Impresstik continued to support you via signed Annual Leave and Long Service Leave requests up to September 2nd, 2005-commuted to August 31st, as mentioned above. The continued necessity for a storeperson precipitates the above action. Yours faithfully L. Brackenreg Paymaster Impresstik 49 As at 10 February 2006 the respondent had neither sought nor hired a replacement for the applicant. 50 I note the words from Boyd v Godfrey Hirst Pty Ltd and Anor. Industrial Relations Court of Australia 1995 AILR by Boyd J. at 131: "For an employee to abandon his/her employment it must be clear that the employee has evinced an intention to no longer be bound by the terms of the contract of employment." 51 The last WorkCover certificate provided by the applicant dated 13 September 2005 stated in the management plan : "to return to work and not be harassed and abused by supervisor" The certificate stated that : "has reached maximum medical improvement and is fit for permanently modified duties from 14/9/05 as per management plan." 52 It was the applicant's view that he did not wish to return to the status quo at work because that would mean he would be supervised by Mr. Argyris which in his view would lead to further harassment and abuse, which was contrary to the last medical certificate. It was accepted evidence between the parties that the applicant had stated during the meeting of 15 September that the matter was now an industrial dispute and he was going to speak with his union. This he subsequently did and the respondent received phone calls from the applicant's union representatives. 53 That comment by the applicant during the meeting and the subsequent phone calls between the parties evinced in my view an intention on the part of the applicant to continue the employment relationship. 54 Mr. Ram stated that at the meeting with the applicant on 15 September when the certificate was presented, his intention was to discuss with the applicant a return to work programme with the applicant but was not given the opportunity because of the stand taken by the applicant. It would seem that during a subsequent discussion with the applicant's union representative he also did not raise his proposed return to work programme. It is my finding that there was clear opportunity for Mr. Ram during the subsequent telephone conversation to have raised and discussed the proposed return to work programme. 55 Mr. Brackenreg during cross- examination was reminded that he had discussions with a union representative concerning the applicant post 15 September 2005. 56 I do not accept the actions of Mr. Brackenreg to make the date of termination to be 31 August 2005, not withstanding that the applicant produced a WorkCover certificate certifying his fitness as at 14 September 2005. The applicant for the period 31 August to 14 September was on sick leave without pay. In evidence Mr. Brackenreg stated that he did not accept that the applicant had resigned on 15 September yet this contradicts the termination letter that he raised. 57 The decision made by Mr. Brackenreg to terminate the applicant was made without consultation with Mr. Ram. He was therefore unaware of the discussions between the applicant and the applicant's union representative and Mr. Ram that occurred post 15 September 2005. If he had made himself aware of such conversations then he could not have concluded that the applicant had abandoned his employment. Mr. Brackenreg stated that he was unaware of the applicant's visit on 15 September yet made comment in later evidence that he had been advised in a debriefing that the applicant had allegedly verbally resigned in front of two management staff on that day. 58 I have considered the wording of clause 4.7 Abandonment of Employment –Metal, Engineering and Associated Industries (State) Award and do not believe that the respondent could use this to justify their actions in terminating the applicant. The respondent through both Mr. Ram and Mr. Breckenreg had spoken with the applicant's union representative between 15 September and 12 October 2005. The parties were discussing a dispute that existed between the applicant and the respondent. Such discussions clearly indicate that the applicant had neither resigned nor abandoned his employment. 59 Taking into consideration all the above, I do not arrive at the same conclusion as the respondent, that the applicant had abandoned his employment. What existed between the parties was an industrial dispute. The applicant was a long- term employee with over ten years service and therefore the dispute should have received far greater attention by the respondent than it did. I accept that the applicant may not have been an easy employee to supervise and that he may have had difficulty in taking direction but his work performance was not the reason for his termination. 60 In my view far too much time was unnecessarily spent by both parties in this case as to the applicant's work performance prior to him proceeding on workers compensation/sick leave. The applicant was not terminated for poor performance or misconduct but for abandonment of employment. 61 What should have occurred at least in the first instance post 15 September 2005 was a face to face meeting between the applicant's union representative and Mr. Ram to discuss the obvious dispute that existed between the parties. 62 It is my finding that the respondent's actions in maintaining that the applicant had abandoned his employment amounted to a harsh, unjust and an unreasonable termination. 63 The applicant did not seek reinstatement nor re-employment stating that the relationship between the parties had broken down. I accept that it would be inappropriate for this Commission to order reinstatement or re-employment in these particular circumstances where there still exists in my view a poor relationship between the parties. 64 In all the circumstances I make the following Order : ORDER 1. Pursuant to ss89(5) and (6) of the Industrial Relations Act 1996, that the respondent Impresstik Pty Ltd pay to the applicant Mr. Alattin Olagas the amount of $10,500. 2. That the above amount be paid to the applicant within 21 days of the date of this Decision. This matter is now concluded. D.RITCHIE COMMISSIONER 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.