Dec 771/99 N Print R7005
AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION
Workplace Relations Act 1996
s.45 appeal to a Full Bench
Canh K. Ngo
and
Link Printing Pty Ltd
(C No. 20724 of 1999)
Appeal by Canh K. Ngo against a decision (Print R0846) issued
by Commissioner Redmond on 22 January 1999 in matter
U No. 20732 of 1998
VICE PRESIDENT McINTYRE SENIOR DEPUTY PRESIDENT MARSH COMMISSIONER HARRISON |
SYDNEY, 7 JULY 1999 |
Appeal - termination of employment - whether resignation - whether termination at the initiative of the employer
DECISION
[1] This is an appeal by Canh K. Ngo against a decision of 22 January 1999 (Print R0846) of Redmond C that he had no jurisdiction to deal with an application for relief pursuant to s.170CE of the Workplace Relations Act 1996. The basis for Redmond C's decision was that the termination of Mr Ngo's employment was not a termination at the initiative of the employer, Link Printing Pty Ltd (Link) (see s.170CD(1)).
[2] Mr Ngo had been employed by Link for about three years. He had previously been employed by another printing company for fifteen years.
[3] During the afternoon of 8 June 1998, Mr Ngo was interviewed by Mr C Fawcett, factory manager of Link and Mr J Corrigan, general manager production of Link. Some issues were raised about Mr Ngo's work performance to which he was asked to respond. In his written statement, Mr Ngo said that at the end of the interview the following conversation took place:
Mr Ngo: "I am very disappointed that the Company does not trust the quality of my work anymore. I have worked very hard for the Company over the last few years, including 7 days and 14 hour shifts. I resign my job because I am so disappointed."
Mr Corrigan: "Okay, you must give us a letter in writing, and give it to me tomorrow."
Mr Ngo: "Okay. I'll see you tomorrow."
Mr Ngo returned to his job and completed his shift.
[4] In cross-examination, Mr Ngo agreed that he said "I resign. Is two weeks' notice okay?". He also said in his oral evidence that, at the time he said that he resigned, his mind was confused, he was really nervous and his heart was jumping.
[5] On the next day, according to Mr Ngo's statement, the following occurred:
"The next day I came in. I started working at 11.30 am as usual. I went to my desk (which is near the machine I work at) and a person I know as `Ian' that is a sub-contractor was working at my job. I asked him why he was there, and he told me `the boss just told me to start working. I don't know why.' At that time Mr Corrigan approached me and said:
"Con, you can finish now. You don't have to work today the Company will pay you up because the Company accepts your offer yesterday. Where's the letter?"
I said:
`Why? I'm not resigning. I didn't write any letter because I checked with my wife and family, as well as my solicitor and accountant. I'm going to work.'
Mr Corrigan said:
`No, you're finished now. Wait in the car park while we type up the payslip.'
I said:
`I don't want to accept the payslip. I want to work.'
Mr Corrigan said:
`If we type up a letter for you will you sign it?'
I said:
`I'm not signing anything.' "
Mr Ngo refused to sign anything and, after a while, went home. He did not work again for Link.
[6] Mr Corrigan's and Mr Fawcett's evidence about these events differs in some respects from Mr Ngo's evidence. For the purpose of this decision, we will accept Mr Ngo's evidence.
[7] Redmond C, as we have mentioned, held that Mr Ngo's employment had not been terminated at the initiative of the employer.
[8] The essence of the appellant's argument was that Redmond C:
· had made only limited findings of fact which were not determinative of the legal tests; in particular, he simply said `When the applicant resigned" and failed to make a finding as to whether Mr Ngo had actually resigned;
· did not give proper weight to the evidence of Link's witnesses that indicated that Link did not believe Mr Ngo when he said words of resignation;
· misdirected himself as to the reasons for the decision in Birrell v Australian National Airlines Commission [(1984) 9 IR 101]; and
· should, in the light of the evidence and the relevant law, have concluded:
- that Mr Ngo did not actually resign; or
- alternatively, if he did actually resign, he was entitled to, and did, withdraw his resignation.
[9] In our view, a reading of Redmond C's decision indicates that he found that Mr Ngo had actually resigned. In dealing with the appellant's submissions he recorded (p.2) that Mr Ngo "told the company he resigned his job because he was so disappointed". With respect to Link's case, Redmond C noted (p.3) that it "was that they had no case to answer because the applicant had resigned of his own free will without any pressure being placed upon him by the company". In his "Conclusions and Findings" (p.5), Redmond C said:
"... I must first consider whether the termination of the applicant was at the initiative of the employer or whether the applicant resigned having full knowledge of what he did. If I find that the resignation of the applicant was at his own initiative and not that of the employer then nothing that has been put to me is relevant."
and later:
"In all of those circumstances I am satisfied that the termination was at the initiative of the applicant. I am not satisfied that action by the respondent directly or consequentially resulted in the termination of employment."
[10] We are satisfied that Redmond C found that, in the circumstances, Mr Ngo had actually resigned. In any event, it is a finding that can be inferred from Redmond C's decision.
[11] In our view, the conclusion that Mr Ngo actually resigned is supported by the evidence before Redmond C.
[12] We have had regard to the various decisions to which we were referred relating to resignations of employment. In particular we have considered the decisions that assert the existence, in certain circumstances, of a duty to clarify a resignation. The position was referred to by Murphy JR in Minato v Palmer Corporation Ltd [(1995) 63 IR 357 at 361-2] as follows:
"The legal position was set out in the case of Sovereign House Security Services Ltd v Savage [1989] IRLR 115 where at 116 May LJ said:
`In my opinion, generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise ...
However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.'
Those comments were considered in another case: Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 where at 188 Wood J said that he saw no difference in principle between words or actions of resignation. At 191 he set out the position as follows:
`If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (`being jostled into a decision') and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as `special circumstances'. Where `special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances' the intention to resign was not the correct interpretation when the facts are judged objectively.' "
[13] We are prepared to assume, without so deciding, that it was incumbent on Link, following Mr Ngo's statement that he resigned, to allow a reasonable period of time to elapse to ascertain whether circumstances arose during the period that put Link on notice that further enquiry was necessary to see whether Mr Ngo's resignation was really intended. Mr Ngo spoke his words of resignation on the afternoon of 8 June 1998. He then resumed work for the balance of the shift, went home, resumed work the next day and, when approached by Mr Corrigan, said that he was not resigning. In our view, any reasonable period of time had elapsed well before Mr Ngo said this.
[14] We have considered the evidence of Link's witnesses as to their reaction to Mr Ngo saying that he resigned. Even if they did not believe Mr Ngo when he said that he resigned, the fact remains that Mr Ngo did not tell Link, until the following day that he was "not resigning".
[15] We have also considered the effect of Mr Corrigan's words (as recorded in Mr Ngo's statement) "Okay, you must give us a letter in writing, and give it to me tomorrow". It was submitted by the appellant that a contract was formed under which Link agreed to accept the withdrawal of the resignation and the resignation would only take effect if it was submitted in writing. In our view, this submission cannot be sustained. There is, we think, nothing in the evidence to support the view that the brief reference to providing a letter created the contractual relationship contended by the appellant.
[16] The next point is whether Mr Ngo was entitled to withdraw his resignation. The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in paragraph [8]). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (p.110). There was some suggestion by the appellant that Birrell has been overtaken by later cases. We do not agree; Birrell was applied by the Federal Court in 1993 in Saddington v Building Workers Industrial Union [(1993) 49 IR 323 at 336], by the Commission in the same year in Ampol Ltd v Transport Workers Union of Australia [(1993) 54 IR 134 at 138] and in 1995 by Ryan J as a member of the Industrial Relations Court in Fryar v Systems Services Pty Ltd [(1995) 60 IR 68 at 87-88].
[17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (pp.110-111).
[18] In Mr Ngo's case, assuming in his favour that his resignation was given in the heat of the moment, it was not retracted swiftly. In our view, Mr Ngo was not entitled to withdraw his resignation on the day following the giving of it.
[19] We have had regard to the other cases to which we were referred. We, with respect, agree with the Industrial Relations Court of Australia (Lee, Moore and Marshall JJ) in Mohazab v Dick Smith Electronics Pty Ltd (No.2) [(1995) 62 IR 200] in which case, after referring to the decision of the Industrial Relations Court in Grout v Gunnedah Shire Council [(1994) 57 IR 243], it said (pp.205-206):
"In these proceedings it is unnecessary and undesirable to endeavour to formulate an exhaustive description of what is termination at the initiative of the employer but plainly an important feature is that the act of the employer results directly or consequentially in the termination of the employment and the employment relationship is not voluntarily left by the employee. That is, had the employer not taken the action it did, the employee would have remained in the employment relationship."
and (p.206):
"When an employee has no effective or real choice but to resign it can hardly be said that the termination of her or his employment is truly at the employee's initiative. But for the insistence of the employer, termination of employment would not cross the mind of the employee."
[20] Having regard to the facts in Mr Ngo's case, however, it cannot, in our view, be said that the act of Link resulted "directly or consequentially in the termination of the employment and the employment relationship [was] not voluntarily left by the employee". Nor can it be said that Mr Ngo had "no effective or real choice but to resign".
[21] Some of the cases to which we were referred (for example, Mohazab and Erbil v Sportscraft Manufacturing [(1998) Print P8154]) deal with situations where on the facts of the case it was found that the employee had, to use the words in Mohazab, "no effective or real choice but to resign". Nothing of that nature arises here. Mr Ngo's resignation was voluntary. In Grout (referred to in Mohazab), the Court found that a termination was at the initiative of the employer where the employee had given a written notice of resignation which was not reasonable but was accepted by the employer which later refused to allow the employee to withdraw it. This decision, as indeed do all the decisions to which we were referred, turns on its own facts. In our view, on the evidence before Redmond C, Mr Ngo's resignation was at his own initiative and not at the initiative of Link.
[22] In all the circumstances, we refuse leave to appeal.
[23] In conclusion, we record that, at the end of the hearing, we directed the parties to again confer to see if the matter could be settled. On 30 June 1999, we were told the parties had conferred but had been unable to reach a settlement.
BY THE COMMISSION:
VICE PRESIDENT
Appearances:
E Young, solicitor, for the appellant
R Crow of counsel for the respondent
Hearing details:
1999
Sydney
June 16
Decision Summary
Termination of employment - unfair dismissal - appeal - full bench - applicant claimed Commission erred in finding voluntary resignation and was not termination at initiative of employer - held - resignation indicated by unambiguous words per Sovereign House Security Serices Ltd v Savage [1989] IRLR 115 - reasonable period of time should elapse before assuming unambiguous resignation really intended per Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183 - applicant unable to withdraw notice of termination of employment contract unilaterally per Birrell v Australian National Airlines Commission [(1984) 9 IR 101] - resignation ineffective only if words retracted swiftly after heat of moment per Martin v Yeoman Aggregates Ltd [1983] ICR 314 - applicant cannot be said to have had no choice but to resign - resignation at own initiative - leave to appeal refused - application dismissed. | ||||
Appeal by Ngo against decision of Redmond C [Print R0846] of 22 January 1999 | ||||
C No 20724 of 1999 |
Print R7005 | |||
McIntyre VP Marsh SDP Harrison C |
Sydney |
7 July 1999 | ||
Printed by authority of the Commonwealth Government Printer
<Price code C>
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