WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION PARTIES MR BRIAN TAYLOR APPLICANT -v- IAN KELLY TRADING AS JURIEN BAY VIEW REALTY RESPONDENT CORAM COMMISSIONER S J KENNER DATE WEDNESDAY, 22 SEPTEMBER 2004 FILE NO. APPL 16 OF 2004 CITATION NO. 2004 WAIRC 12921 Catchwords Industrial law – Termination of employment – Harsh, oppressive and unfair dismissal and denied contractual benefits – Whether constructive dismissal or resignation – Intent of parties considered – No dismissal at the initiative of the employer – Commission lacks jurisdiction – Alleged contractual benefits not due under contract of employment – Application dismissed – Industrial Relations Act 1979 (WA) s 29(1)(b)(i), s 29(1)(b)(ii) Result Application dismissed Representation Applicant In person Respondent Mr I Kelly Reasons for Decision (Ex Tempore) 1 The present application is one brought by Brian Taylor against Mr Ian Kelly trading as Jurien Bay View Realty. The application is brought pursuant to s 29(1)(b)(i) and (ii) of the Industrial Relations Act 1979 (WA) (“the Act”) by which the applicant brings two claims before this Commission. 2 The first claim is that he alleges that on or about 20 December 2003 he was harshly, oppressively and unfairly dismissed from his employment as a real estate consultant with the respondent. The second limb of the applicant's claim is that he alleges that on the termination of his employment he has been denied certain contractual benefits in the sum of $7,600.00 including sums for training courses, accommodation and living expenses in Jurien Bay in the State of Western Australia. 3 The respondent opposes both limbs of the applicant's claim and denies that the applicant is entitled to the relief claimed or to any relief at all. 4 The evidence before the Commission on behalf of the applicant was principally through the applicant himself, Mr Taylor. The evidence on behalf of the respondent employer was from its principal, Mr Kelly. In addition, the Commission has heard evidence from the applicant's wife, Mrs Taylor, which the Commission will deal with shortly. At the outset, I observe that I formed the view from both the applicant and Mr Kelly giving their evidence that they both did so honestly and truthfully and I find and accept their evidence to be given in good faith. 5 The respondent is a real estate business located in Jurien Bay in this State. The applicant commenced employment as a real estate representative with the respondent by way of an offer of engagement on or about 28 May 2003 but I observe 84 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3385 that that engagement was subject to the successful completion by the applicant of a Real Estate Institute course which provides a licence for him to operate as a real estate agent in this State. It is common ground that the applicant successfully completed this course by 2 July 2003, and it was at that time, on the evidence, that he received his licence and commenced employment, formally, as a real estate agent with the employer. 6 The applicant was engaged on a commission-only basis. The applicant was not to receive a retainer and nor was the applicant, according to his own evidence, entitled as a matter of contractual benefit to the matters which form the subject of his contractual benefits claim. It appears, however, that in addition to the commission-only basis of the applicant's employment he was also afforded opportunities to use the respondent's office facilities. He was also in receipt of support for signage, business cards and professional indemnity insurance and other business support services in his duties as a real estate agent. 7 The applicant testified that he was initially employed as one of three agents in the respondent's sales team at the time. It was his evidence that over time and, indeed, shortly after he commenced employment, the sales staff at the employer increased which impacted on his ability to perform his duties and achieve sales. It was the applicant's testimony in the matter that this growth in the respondent's staff had the effect of preventing him from achieving the levels of income that he says were promised by the respondent and which the applicant considered he should otherwise achieve as a real estate agent. 8 In this connection, the applicant testified that based upon promises from Mr Kelly prior to him commencing employment, he moved from Geraldton to Jurien Bay. The applicant testified that he expected to earn a good income although, perhaps, not as much as was indicated to him was being earned by more experienced representatives of the employer. 9 During his employment the applicant testified that he applied himself to the position and tried his best to achieve in the real estate industry, in effect. In summary, the applicant said, however, that in the seven or so months of his employment he only made some $200.00 or thereabouts in sales commissions. The applicant did accept, however, that after his employment came to an end in December 2003 he also received some further payments in relation to sales transactions that were completed after his employment terminated. 10 The applicant also accepted, in cross-examination in particular, that after commencing in employment, and at least from September 2003, he was placed on the employer's roster, as it was described, which he accepted gave him an equal opportunity to achieve real estate sales as other real estate agents employed by the respondent. 11 In a nutshell, the applicant testified that he formed the view towards 20 December 2003 that he could not continue in the employment of the employer because he was not earning sufficient income to cover his overheads and he formed the view, after considering the matter for some days, to tender his resignation which he did by letter dated 20 December 2003. A copy of that letter was tendered as exhibit A1. 12 In that letter, Mr Taylor informs Mr Kelly of Jurien Bay View Realty that he had reached the decision to terminate his employment with immediate effect. The applicant refers to promises that were made to him, allegedly, at the outset of his employment and that after considering the matter for some time he took the view, in the penultimate paragraph, that he could not allow the situation to continue and he had not taken the decision lightly. 13 The applicant testified that he applied all his reasonable endeavours as a real estate agent and it was his view that it was the conduct of the respondent employer that prevented him from achieving success in the real estate industry. Ultimately, the applicant testified that he was constructively dismissed because of the respondent's actions in changing its sales force. The applicant also says that he was induced to enter into the employment by the representations of Mr Kelly prior to commencing with him. 14 As I have observed, Mrs Taylor also gave evidence. The thrust of her evidence was to confirm the statements made by Mr Taylor in his evidence in-chief as to the expectations that he had at the time he commenced employment and prior to the engagement by the respondent employer. 15 Mr Kelly gave evidence on behalf of the respondent. He said there was no dismissal of the applicant. He testified that the applicant was, in summary, given all reasonable prospects to succeed as a commission-only sales representative and denied doing anything to hinder the applicant's progress in that regard. It was also the evidence and the position of the respondent, generally, in the matter that the applicant experienced some difficulties by reason of his other business interests including a farming property in Geraldton and also assisting his wife with a café business in Geraldton. Mr Kelly testified that this had the effect of limiting the applicant's ability to service Jurien Bay and surrounding areas in real estate. 16 As to the applicant's terms and conditions of employment, Mr Kelly testified that the applicant was engaged on a commission-only basis and was not to be paid any retainer payments. He said the applicant had access to all the respondent's office facilities, the use of business cards, sales signs, advertising and professional indemnity insurance which was all paid for by the respondent employer. Mr Kelly informed the Commission in his evidence that there was never any agreement with the applicant to reimburse him for his expenses incurred such as obtaining his requisite qualifications through the Real Estate Institute nor for accommodation costs or other expenses. 17 Mr Kelly also testified that the respondent's decision to increase its sales staff was one taken to ensure the respondent was a successful business and that there was no intent or effect to reduce the potential for the applicant to succeed. As to pre- employment discussions, it was Mr Kelly's evidence that he did mention what an experienced representative would expect to earn but also testified that he informed the applicant that it may take some time to build up a customer base and become familiar with the respondent's products. He said, in the five months of the applicant's employment, the applicant completed some 18 appraisals and listed 13 properties but, in his view, the applicant's problem was converting listings into sales. 18 Mr Kelly also testified as to how few representatives who complete the Real Estate Institute course remain in the industry beyond 12 months. In his view, from what information he had from survey information conducted by the real estate association, only some eight per cent of those who complete the course remain in the industry after that time. 19 The evidence of Mr Kelly was that the respondent received the letter of 20 December 2003 from Mr Taylor without any prior discussion or forewarning. Mr Kelly informed the Commission that he, after receiving this letter, had a discussion with the applicant at his home when the applicant informed him that he intended to look for other career opportunities as he was not able to make ends meet with the respondent employer. 20 It was Mr Kelly's evidence that having regard to all of the previous circumstances, the applicant was given the same opportunities to succeed as all of his other representatives and it was not the case that the respondent forced the applicant to leave its employment. 3386 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 84 W.A.I.G. 21 I will turn now to my consideration of the matter. Fundamental to the Commission's jurisdiction in matters of this kind, under s 29(1)(b)(i) of the Act, is for the applicant to be dismissed as a matter of fact and law and this a matter of jurisdictional fact. In that regard, I refer to the decision of the Industrial Appeal Court in Metropolitan (Perth) Passenger Transport Trust v Gersdorf (1981) 61 WAIG 611. 22 The Commission must therefore be satisfied that the applicant was dismissed for the purposes of determining, as a next consideration, whether any dismissal was harsh, oppressive or unfair. In this case, the allegation is one of constructive dismissal. In that case, the Commission must determine who really terminated the employment contract despite an apparent resignation tendered by the applicant. In that respect, I refer to a decision of the Industrial Appeal Court in The Attorney General v Western Australian Prison Officers’ Union of Workers (1995) 75 WAIG 3166. 23 As to the second aspect to the applicant's claim, that is a contractual benefits claim under s 29(1)(b)(ii) of the Act, it is for the applicant to establish that he has the claims as contractual entitlements as a matter of law under his contract of employment and that those benefits were denied to him when his employment came to an end. In that regard, I refer to a decision of the Full Bench of this Commission in Hotcopper Australia Ltd v Saab (2001) 81 WAIG 2704. 24 To the applicant's credit, the applicant testified and informed the Commission in submissions that the claimed sums of $7,600.00 for accommodation and other costs, which he says he has incurred in pursuing his employment with the respondent, were not entitlements under his contract of employment with the respondent and, therefore, in my view, as a matter of law, this claim cannot succeed. 25 As to the applicant's claim of harsh, oppressive and unfair dismissal, as I have observed earlier in these reasons, it is essential for the applicant to establish, as a threshold issue, that he was dismissed from his employment. For him to do so, he must satisfy the Commission that his resignation of 20 December 2003 was forced in the sense that the respondent either breached its contract of employment with the applicant, going to its root, or, by the conduct of the respondent employer, the applicant was forced to leave the employment. This is quite a high threshold for the applicant to attain. 26 On all of the evidence I am not satisfied, on the balance of probabilities, that the applicant was dismissed to attract the jurisdiction of the Commission. I accept, in the discussions with Mr Kelly of the respondent, the applicant was informed of prospects in the Jurien Bay area and what an experienced sales representative may earn by way of income. It was not suggested, on the evidence, and neither the applicant or the respondent suggested this that any discussions had with Mr Kelly on behalf of the respondent were in the form of a guarantee of any such income and, in my opinion, no such guarantee could ever be given. 27 I have no doubt that the applicant had, certainly, a hope of making a success in the real estate industry and I accept, on all of the evidence, that both parties entered into the relationship in good faith in the hope that the applicant would make his chosen course a success. It is important to bear in mind, however, that representations of the kind suggested in this case are not misleading and deceptive just because they do not materialise as hoped. As long as a person who has made a representation has a proper basis for it at the time it is made it is not, by that fact alone, misleading and deceptive. It is also the case that it is for the respondent employer to determine the appropriate levels of staffing to develop its business and that is a matter of managerial prerogative. 28 In any event, it is clear from the evidence, in my view, of the applicant, himself, and also from the respondent, that the applicant was, at least from September 2003, placed on an equal footing with all other real estate representatives who were then employed by the employer. Perhaps, and it is speculation only, had the applicant been able to maintain his position for longer, success in his chosen career may have come. However, it is well known, and I take this on judicial notice, that the real estate industry is one requiring long hours and hard work and persistence and overnight success is not common. 29 On all that is before the Commission, whilst the applicant, no doubt, was disappointed that he was not able to achieve the level of success that he hoped for with the respondent, the Commission is not persuaded that the respondent embarked upon a deliberate course of conduct to frustrate or impede the applicant's prospect of success. Therefore, I am not persuaded, on the balance of probabilities, that the applicant's letter of resignation was other than one voluntarily tendered by him after considering his position, as the last paragraph of it, in my view, makes quite clear. I cannot, therefore, be satisfied as a matter of fact and as a matter of law that the applicant was dismissed to attract the Commission's jurisdiction and, therefore, in conjunction with my conclusions as to the contractual benefits claim, I must dismiss the applicant's claims. 2004 WAIRC 12920