WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION. PARTIES WILLIAM JAMES COCHRANE, ROSLYN VENETTIA MILLER, APPLICANTS v. TEMPO FACILITY SERVICES PTY LIMITED, RESPONDENT CORAM COMMISSIONER S WOOD DELIVERED TUESDAY, 13 NOVEMBER 2001 FILE NOS APPLICATION 938 OF 2001, APPLICATION 939 OF 2001 CITATION NO. 2001 WAIRC 04251 _______________________________________________________________________________ WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 81 W.A.I.G. 3124 Result Applications dismissed Representation Applicants Mr T Crossley as agent Respondent Ms K Noyen of Counsel _______________________________________________________________________________ Reasons for Decision. (Given extemporaneously and subsequently edited by the Commissioner) 1 These two applications, by Mr William Cochrane and Ms Roslyn Miller, are made pursuant to section 29(1)(b)(i) of the Industrial Relations Act, 1979 (the Act). The applications for denied contractual benefits, made pursuant to section 29(1)(b)(ii) of the Act, were withdrawn by leave at hearing. 2 The contention is that Mr Cochrane and Ms Miller were constructively dismissed on 8 May 2001, and I will come to that shortly. The evidence concerning that is a meeting involving Mr Cochrane, Ms Miller and Mr Rod Anderson, the General Manager of the respondent company, on 8 May 2001 at the company’s premises in Teddington Road, Burswood. They alone can give evidence regarding what happened at that meeting. 3 Evidence as to what occurred outside the office on that occasion has been given by Mr Calameri, the Human Resources and Training Manager for an associated company of the respondent, Mr Wilson, a fellow employee, and, to a degree by Ms Mayfield, the State Operations Manager for Tempo Security. 4 Following all the evidence, but during the course of the hearing, the matter was adjourned briefly to encourage the parties to seek to settle the matter. The Commission declared at that stage that he would rely on the evidence of Mr Calameri. I found him to be very credible and, as indicated to the parties, I accept his evidence without reservation. I was impressed with him as a witness in terms of being straightforward and providing a reliable, detailed account of what occurred. On the basis of Mr Calameri’s evidence I find that Mr Cochrane was agitated on entering the meeting of 8 May 2001; that Mr Cochrane was highly agitated and swearing at the conclusion of the meeting, outside the building; that Mr Cochrane, and it is really uncontested, tendered his resignation; that Ms Miller tried to get him to go back into the building to sort out the issue, and he would not; and that finally, Mr Cochrane is, in Mr Calameri’s view, of good character and otherwise calm. 5 The next point goes to the evidence of the applicants and Mr Anderson in relation to that meeting. I should say, in relation to Ms Miller’s evidence, in response to questions from the Commission, it is clear that she is bound by the actions of Mr Cochrane, in that she has given evidence that she agrees with his actions, and was, in effect, about to take similar action had it not been that Mr Cochrane took control of the matter. They are a couple who worked and lived together and whatever findings are made in relation to the termination of their services cover both of them. 6 The applicants allege that Mr Anderson was aggressive, abusive, pointed and swore at the meeting. The context of that being that his actions were such as to justify a view that the contract should be at an end. In effect they had no other alternative but to leave their employment; they were pushed, they did not jump. It is clear on the evidence of the applicants alone that, prior to any alleged swearing on the part of Mr Anderson, Mr Cochrane had taken control of the meeting and had resigned. As I said, given the evidence of Ms Miller, he resigned effectively for both of them. The swearing therefore did not bring on the resignation announcement. There would have to be a finding then, based on the evidence of the applicants, that the actions of Mr Anderson were so threatening to that point so as to cause the applicants to consider the contract to be at an end. 7 I turn to the letter of resignation, which is at [Exhibit R1, pages 164 to 166]. This letter was written by Mr Cochrane and sent to Mr Schaeffer, Executive Chairman, Tempo, quite soon after the meeting of 8 May 2001. I will deal shortly with the credibility of other witnesses, but having heard the evidence and given the language of the letter, I consider that letter to be a fairly calm report of how the meeting proceeded, at least as Mr Cochrane perceived it to be at that time. 8 It is clear when you read the letter, and when you hear the cross-examination of Mr Anderson, that Mr Anderson’s report of the order of the meeting is probably correct. In other words leaving to one side his account of the tenor of the meeting, Mr Anderson’s account of how the discussion at the meeting progressed is in my view more probable. Having heard Mr Anderson give evidence, it is also my view that the meeting was conducted in an aggressive fashion, and I do not attach blame to that. I think it is probable, having seen the evidence given by Mr Cochrane and Mr Anderson, that both men were in an agitated state at the commencement of the meeting, and continued in that way. Certainly, on the evidence of Mr Calameri which I accept, Mr Cochrane entered the meeting in an agitated state. I consider that it is most probable that Mr Cochrane took offence, having already been agitated, at the manner in which his partner, Ms Miller, was being spoken to. I infer also that the meeting broke down due to a comment by Mr Anderson, something to the effect of “where’s the money”, the meaning of the comment Mr Cochrane took wrongly. Mr Cochrane took immediate offence at that. 9 It is clear on the evidence that Mr Anderson was concerned about the cost overruns on the cleaning contract which related to extra staffing and additional time spent in units above the allocated contract time. Mr Anderson’s comment about money related to that. I consider that Mr Cochrane took the comment wrongly. Irrespective, the fact is the meeting disintegrated at that point, and Mr Cochrane, if his evidence is to be believed, acted relatively calmly, putting his hand down in a firm manner, and announced his resignation. I doubt the calmness of this action. 10 I would have to say that, where there is a difference of evidence between Mr Anderson, Ms Miller and Mr Cochrane, I would prefer the evidence of Mr Anderson, with one key exception. I believe his account has been given in a credible and consistent fashion, undented under cross-examination, albeit underplayed. I say underplayed in the sense that I find the meeting was conducted in an aggressive manner. As stated I attach no blame to that except that the impression I have formed is that both men were agitated and Mr Anderson was eager to get across his points concerning paperwork and budgets. I also find, when I look at the resignation letter of Mr Cochrane, that it is probable that Mr Anderson used the words, “Fuck off” at the conclusion of the meeting. Again having viewed the evidence and looked at the letter, it seems to me that the letter provides a reasonable abbreviated account of what occurred. I should say, the accounts of Mr Cochrane and Ms Miller were in my view more rehearsed and less consistent under challenge. 11 I come to the issue of the constructive dismissal, and I believe the application is misconceived. For the applications to be successful I would have to believe that Mr Cochrane and Ms Miller had no alternative, given the actions of Mr Anderson, but to treat the contract at an end at that point in time. The evidence does not lead me to that view. Mr Anderson was not threatening, he was attempting, albeit in an aggressive atmosphere, to get the applicants to understand and address the needs of the business for proper paperwork and adherence to budgets. The evidence of Mr Anderson which I accept is that he had previously sought to redress these problems and the meeting was organised to ensure that the applicants understood and complied. Typically also for a constructive dismissal, the conduct is so bad or obvious as to be able to form the reasonable view that the contract has ended, and is not continuing in some fashion. Quite clearly the contract continued whereby Ms Miller and Mr Cochrane went back to work on Rottnest island and continued to engage in dialogue with the company, albeit not with Mr Anderson. The applicants were to work out their four WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 3125 81 W.A.I.G. week notice period. I should add, on the basis of the evidence given by Mr Calameri is that Ms Miller would seem to have been of the view, directly after the meeting on 8 May 2001, that they should have gone back to talk to Mr Anderson. Put differently, there was no need to consider that the discussion or the contract had to end there. 12 These are not features of a constructive dismissal that you would normally find. Most importantly though the actions of Mr Anderson cannot be construed as being so offensive as to constitute a constructive dismissal. The contracts were instead terminated at the hand of the employer on 17 May 2001 on the island, and I so find. My reasoning is this. What occurred was really a resignation made in the heat of the moment on 8 May 2001. In those circumstances the employer should at least allow a cooling off period. He/she may also take steps to see whether the resignation should, in fact, be treated seriously. Was it truly intended or does the employee recant? The respondent in my view has allowed this cooling off and took steps through Ms Mayfield to ascertain Mr Cochrane’s intentions. 13 The applicants say that the employer then demanded their written letters of resignation. I do not find this to be the case. The cross-examination by Mr Crossley of Ms Mayfield did not break her evidence down at all. She was quite clear and emphatic that she had given Mr Cochrane an opportunity to effectively renege on his resignation. She was in my view credible and convincing in her evidence, and I would find that she, in fact, did offer Mr Cochrane the opportunity to, retract his resignation. 14 The termination of employment occurred on 17 May 2001 when the letter of termination was handed to Mr Cochrane [Exhibit R1, page 167]. Even though the text of that letter is not fully clear, it is intended, on the evidence to be a termination of the contract, the respondent says at the hands of the employee. Mr Cochrane and Ms Miller had continued to work albeit increasingly reluctantly. Mr Cochrane had written to Mr Schaeffer reaffirming his resignation. The intention being to work out the four week notice period as per the contract. Mr Anderson then had equipment removed from their premises on 17 May 2001. That equipment was needed, on the evidence of Mr Anderson and Mr Cochrane, for the work to be done. The removal of that equipment meant that the work could no longer be done by the applicants, and it was intended to be an end to the employment relationship. The employer allowed the applicants to remain in the company’s house until 5 June 2001. 15 The question is whether the dismissal at that time was unfair. It was not wrongful; the employer under the contract [Exhibit R1, page 138] had the right to terminate and pay in lieu of notice. They simply bought the employment to an earlier close. The applicants were entitled to a fair go all round (Undercliffe Nursing Home— v- Federated Miscellaneous Workers’ Union of Australia, Hospital, Service and Miscellaneous, WA Branch 65 WAIG 385). I cannot find that the employer has acted in a fashion so as not to afford Mr Cochrane and Ms Miller a fair go in all the circumstances. In coming to that conclusion, I would turn again to the evidence of Ms Mayfield. Her evidence in my judgement is straightforward, clear and credible and I accept her evidence unreservedly. The view then formed is one where the applicants having embarked on the course of resignation were not going to change course and the employment relationship had forever soured. Certainly Mr Cochrane could no longer work with Mr Anderson and did not intend doing so. 16 I consider that the relationship had broken down so much between Mr Cochrane and Mr Anderson at that point in time that Mr Cochrane simply did not want to work, and would not again work for Mr Anderson . That is the finding that I would make. 17 There is evidence, also from Ms Mayfield, that information required by the employer was not forthcoming leading up to 17 May 2001. In that sense I would say that the employer had no alternative other than to conclude the notice period. The contract, which is not in contention, provides for the termination on notice of four weeks, or for that sum to be paid as an equivalent as notice in lieu, and that point is not in contention. What the employer did was to effect that termination on the 17 May 2001 and pay out the notice in lieu, which they are entitled to do under the contract. For all of those reasons, I would say that the applicants have been afforded a fair go all round. 18 It may be said that the employer should have taken some more positive steps, eg Mr Anderson should have taken some direct steps to speak to Mr Cochrane. But the evidence of Ms Mayfield is that she was on friendly terms with Mr Cochrane, and so I take from that that Mr Anderson had tasked her with the job of approaching Mr Cochrane in the expectation that she might have been better able to talk Mr Cochrane around. She could not do so. I also take from that that Mr Anderson simply did not want to talk to Mr Cochrane as there had been an aggressive exchange. 19 For all of the above reasons I would dismiss the applications. 2001 WAIRC 04252