| [2017] FWC 4145 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
John Quinn
v
Virginia Tavern
(U2017/1814)
COMMISSIONER WILSON |
MELBOURNE, 10 AUGUST 2017 |
Application for an unfair dismissal remedy.
[1] Until 8 February 2017 John Quinn worked as the Head Chef at the Virginia Tavern in Palmerston, Northern Territory. The circumstances in which he came to leave his employment at the Virginia Tavern are the subject of dispute. The Applicant puts forward that on 8 February 2017 day he was dismissed, whereas the Respondent puts forward that Mr Quinn resigned from his employment.
[2] A hearing was conducted by me on 25 July 2017 regarding the merits of Mr Quinn’s application, however, this decision deals only with the question of whether Mr Quinn was dismissed which is a threshold matter within s.386 of the Fair Work Act 2009 (the Act). Because of my finding on that matter, it is unnecessary for me to deal with the merits of Mr Quinn’s application.
[3] For the reasons set out below I find that Mr Quinn was not dismissed within the meaning of the Act. Because of that finding it becomes necessary to consider within this decision the initial matters set out within s.396 of the Act or any other aspect of Mr Quinn’s application. Because of my finding that he has not been dismissed Mr Quinn’s application for unfair dismissal remedy must therefore be dismissed.
[4] The Virginia Tavern operates a business in Palmerston, near Darwin and submits that at the time Mr Quinn came to leave his employment, on 8 February 2017, it employed 14 people including its proprietor, Damien O’Brien. 1 Prior to that time Mr Quinn had been working as the Virginia Tavern’s Head Chef responsible for running the kitchen and supervision of kitchen staff, ordering, stocktaking, development of menus and cooking of food.
[5] Mr Quinn’s submissions and evidence to the Commission include that he had been on four weeks approved leave starting on 8 January 2017. When he returned from leave and before he recommenced work, he went to the Virginia Tavern for a social purpose on 5 February 2017 and heard from a co-worker that he was to be dismissed, however he ignored the comment at the time.
[6] When he then went to work as usual at around 8 AM on 8 February 2017 Mr O’Brien asked to see him and the two proceeded to have a conversation. Mr Quinn says that Mr O’Brien said to him words to the effect that “we need to have a serious talk due to wastage”. Mr Quinn’s evidence is that in the course of the conversation he was told by Mr O’Brien that he was being let go and that in response to being told that by Mr O’Brien, he said words to the effect of “I’ll get my knives and go” being a reference to collecting his chef’s knives which, were his property and then leaving the premises.
[7] Mr Quinn gave evidence that he was told by Mr O’Brien that as a result he would be paid four week’s severance pay. He then shook Mr O’Brien’s hand, collected his knives and other belongings and went home. Mr Quinn’s submissions include also that he had worked for Mr O’Brien for about five years, since 24 February 2012, and that at that time he had not been given any warnings of any kind. Mr Quinn submits that he was shocked, hurt and upset that Mr O’Brien had decided to act in this manner and that he was at loss to understand why he may have been dismissed.
[8] Mr O’Brien’s evidence to the Commission is substantially different. Mr O’Brien puts forward that instead of being dismissed from his employment, Mr Quinn resigned.
[9] Despite this difference in the evidence, Mr O’Brien agrees that there was a conversation between the men in the early morning on 8 February 2017.
[10] Mr O’Brien’s evidence on the subject includes that he had been concerned for some time about Mr Quinn’s performance and that this had been so especially since around August 2016. Since that time it had been notable that Mr Quinn would occasionally serve food that attracted customer complaints, particularly because it was spoiled. In the period between August 2016 and before Mr Quinn went on leave in January 2017, Mr O’Brien and other staff had occasion to raise those matters with Mr Quinn, who would become argumentative and deny there had been any problems with food preparation or with food hygiene.
[11] Mr O’Brien alleges there had also been an occasion in which Mr Quinn had been abusive to a kitchen hand which had led to further problems for the Virginia Tavern.
[12] When Mr Quinn went on leave during January it became apparent to Mr O’Brien and other staff that Mr Quinn was being inattentive to basic matters of stock control and food hygiene. It also became apparent to him that the cost of goods sold through the kitchen was significantly higher than budgeted for, which Mr O’Brien attributed to Mr Quinn’s difficulties with stock control, or “wastage”.
[13] As a result of these matters Mr O’Brien determined that he should discuss his concerns with Mr Quinn when he returned from leave and took the opportunity to do so on the day of his return, 8 February 2017.
[14] Mr O’Brien’s evidence is that when he asked to see Mr Quinn on the morning of 8 February he was hoping that Mr Quinn had come back from his holidays fresh and ready to deal with work. I understand this to be a hope that Mr Quinn would be receptive to feedback about his performance.
[15] Mr O’Brien’s evidence is that he said to Mr Quinn that he wanted to raise a number of matters with him and that he started with the subject of wastage. He told Mr Quinn that the food costs where hitting 55% of the cost of goods sold when the menu was costed at about 30%. Mr Quinn’s response to the situation was to say “I’ll grab my knives and go” which Mr O’Brien took to be his intention to resign.
[16] Mr O’Brien’s evidence is that Mr Quinn also said he was not coming back and once Mr Quinn had left he had to organise someone else to work the coming lunch period since the Virginia Tavern normally has two chefs working during the lunch period.
[17] At some point after the morning conversation, and likely not in the same conversation, Mr O’Brien decided to make an ex gratia payment of four week’s pay in lieu of notice to Mr Quinn, as a sign of goodwill, largely in recognition of the fact that he had worked for the Virginia Tavern for almost five years.
[18] Mr Quinn gave evidence that at some time within a day or so after he had left the premises on 8 February 2017, Mr Quinn had returned for a drink at the bar in which nothing had been said by Mr Quinn about wanting to return to employment at the Virginia Tavern.
[19] It was submitted by the Virginia Tavern, as background to this situation on 8 February 2017 that Mr Quinn had resigned on two previous occasions. These resignations however were subsequently retracted resulting in Mr Quinn continuing his employment with Virginia Tavern. Mr Quinn does not deny that these occasions took place;
[20] A person is “dismissed” if the criteria within s.386 of the Act have been met which is in the following terms;
“386 Meaning of dismissed
(1) A person has been dismissed if:
(a) the person’s employment with his or her employer has been terminated on the employer’s initiative; or
(b) the person has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.
(2) However, a person has not been dismissed if:
(a) the person was employed under a contract of employment for a specified period of time, for a specified task, or for the duration of a specified season, and the employment has terminated at the end of the period, on completion of the task, or at the end of the season; or
(b) the person was an employee:
(i) to whom a training arrangement applied; and
(ii) whose employment was for a specified period of time or was, for any reason, limited to the duration of the training arrangement;
and the employment has terminated at the end of the training arrangement; or
(c) the person was demoted in employment but:
(i) the demotion does not involve a significant reduction in his or her remuneration or duties; and
(ii) he or she remains employed with the employer that effected the demotion.
(3) Subsection (2) does not apply to a person employed under a contract of a kind referred to in paragraph (2)(a) if a substantial purpose of the employment of the person under a contract of that kind is, or was at the time of the person’s employment, to avoid the employer’s obligations under this Part.”
[21] In the context of this matter only subsection (1) requires consideration. Mr Quinn was employed on a full-time basis and the matters referred to in subsections (2) and (3) have no relevance to his situation.
[22] The question arises as to whether this is to be characterised as a “heat of the moment” resignation which, having been given and accepted, an employee thought better of and then actively sought to have set aside. The Commission accepts that there may be special circumstances in which it may be unreasonable for an employer to assume a resignation and to immediately accept one. The path which may be taken by the Commission in such circumstances is to accept that a reasonable period of time should be allowed to elapse between the point of the purported resignation and acceptance in order for the employer to see whether the resignation was really intended. 2
[23] The evidence given in the matter is consistent with what would be expected from practical people working in a small business such as a tavern. Each was focused upon their own particular circumstances and not necessarily upon the matters that may need to be determined in a matter such as this.
[24] There was plainly an intention on the part of Mr O’Brien to approach Mr Quinn about matters which Mr O’Brien thought were unsatisfactory. His evidence described finding a cool room in some state of disarray when Mr Quinn was on leave and then also learning that the cost of goods sold for food was substantially higher than budgeted. He plainly had an intention to raise those matters with Mr Quinn at the earliest opportunity after the latter returned from leave and in fact did so.
[25] The significant question in this matter is whether at the time that Mr O’Brien initiated the conversation with Mr Quinn in the morning of 8 February 2017 he dismissed him or Mr Quinn resigned.
[26] Having considered all the evidence before me and the manner in which each person gave evidence, I am of the view that Mr O’Brien’s evidence should be preferred. I am satisfied that Mr O’Brien said to Mr Quinn that there were things the two needed to talk about and that he started with the subject wastage. I am satisfied that the conversation did not progress particularly further than that as Mr Quinn took offence to what was being said to him, considered it to be a challenge to his overall abilities. As such I am satisfied that Mr Quinn said the things about which Mr O’Brien gave evidence, namely words to the effect of “I’ll grab my knives and go” which Mr O’Brien took to be his intention to resign.
[27] Having said those things the conversation appears to have immediately ended with Mr Quinn indeed taking his knives and leaving the premises which in turn required Mr O’Brien to make arrangements for sufficient chef numbers for the coming lunch trade.
[28] I am satisfied on the evidence that Mr O’Brien decided to make a payment of four weeks pay to Mr Quinn in lieu of notice, even though he knew such was not technically required, putting it forward as an ex gratia payment by the Virginia Tavern to Mr Quinn in recognition of his almost 5 years of service.
[29] I am also satisfied on the evidence that at some time after leaving the premises, within a day or so of the original conversation, that Mr Quinn returned to the Virginia Tavern for a drink and that while he was there he did not raise with anyone, especially not Mr O’Brien that he wanted to return to work.
[30] I am satisfied as well that the first Mr O’Brien knew of Mr Quinn’s challenge to the ending of his employment was after the latter’s application for unfair dismissal remedy was made to the Fair Work Commission on 20 February 2017.
[31] As a result of the foregoing finding it is open to the Commission that there was no termination at the initiative of the employer, which is the criterion to be considered within s.386 (1) (a).
[32] The consideration therefore turns to the criterion within s.386(1)(b) and in particular whether Mr Quinn resigned from his employment but was forced to do so because of conduct, or a course of conduct, engaged in by the Virginia Tavern.
[33] There is no such evidence before the Commission of conduct, or a course of conduct of the requisite nature. Instead the evidence is that there had been no warnings given to Mr Quinn prior to him proceeding on leave in January 2017. Additionally, when Mr Quinn went on leave he did not apprehend that there were problems relating to his employment. The evidence is that the first occasion on which the question about Mr Quinn’s work performance was raised by Mr O’Brien, in recent time at least, was upon his return from holidays on 8 February 2017.
[34] The fact that there had been two prior occasions on which Mr Quinn offered to resign from the Virginia Tavern is relevant to the disposition of this matter. Each properly can be regarded as resignations in the “heat of the moment” and on each occasion for reasons best known to Mr O’Brien, he was prepared at the time to allow the resignation to be retracted.
[35] On 8 February 2017 when Mr Quinn said he would take his knives and leave, Mr O’Brien was entitled to regard this as an announcement, by Mr Quinn that he was resigning and leaving the Virginia Tavern’s employment. There is no evidence before the Commission that Mr Quinn then or at any time thereafter said to Mr O’Brien that he did not mean the resignation or that he otherwise wanted his job back. The fact that Mr O’Brien did not refuse the resignation or at a later time say to Mr Quinn that it could be retracted is not relevant to whether what occurred should be regarded as a resignation.
[36] There is no evidence before the Commission that Mr Quinn’s resignation should be treated as a “heat of the moment” resignation later retracted by the Applicant. There is in fact no evidence that there was a retraction or any other action taken by Mr Quinn to indicate that he had thought better about the circumstance, and that he wanted to continue employment.
[37] Mr O’Brien was within his rights to raise with Mr Quinn the matters that he sought to on 8 February 2017. There is no evidence that those matters were anything beyond an ordinary discussion about potential criticism of work performance with an expectation that they be remedied. Mr O’Brien was entitled to expect that the criticisms would be openly discussed and then acted upon in order for the employment relationship to continue into the future.
[38] Instead Mr Quinn appears to have taken affront to what was said by Mr O’Brien and to have resolved that affront by resigning from his employment.
[39] All of the foregoing circumstances lead to a finding that the circumstances relating to Mr Quinn not having been dismissed within the meaning of s.386 of the Act.
[40] Accordingly Mr Quinn’s application for unfair dismissal remedy is dismissed and an order to that effect is issued at the same time as this decision.
COMMISSIONER
Appearances:
Mr Paul Holden, as Advocate and Support Person for Applicant
Mr Lucio Matarazzo, Paid Agent for the Respondent
Hearing details:
2017.
Melbourne (by video conference):
25 July.
1 Employer Response Form, F3, item 1.7.
2 See for example, Ngo v Link Printing Pty Ltd (1999) 94 IR 375 [12]; with reference to Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, 191.
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