What is a constructive dismissal

This is an entire decision of a Fair Work Commission Deputy President which deals with the legal issues including the resolution of disputed questions of fact involved in determining whether a resignation by an employee can be regarded as a constructive dismissal.

 

“[1] This decision concerns an application by Mr Darren Aitkin (the Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (the Act). The Applicant claims that he was dismissed from his employment with Alpine Fresh Pty Ltd (the Respondent) and that his dismissal was harsh, unjust and unreasonable. The Respondent is a transport, trucking and logistics business.

[2] The Respondent objects to the application on the jurisdictional grounds that the Applicant was not dismissed within the meaning of s.386 of the Act, and that the Applicant had resigned from his employment.

Background

[3] The Applicant commenced employment with the Respondent on 1 May 2021, engaged as a Driver. The Applicant alleges he was dismissed following an incident on 11 November 2021 over the phone with Mr Cameron Williams, who was the Applicant’s supervisor at the time (Mr Williams). This is disputed by the Respondent.

[4] The parties agreed that the Applicant attended work on 11 November 2021 in the morning in which he was assigned to deliver milk to Claremont, Queensland. The Respondent advises that a set of written instructions were provided to the Applicant which specified the truck and trailer, being a 104B Kenworth truck and a 12-pallet trailer, that he was required to use to undertake his duties for the day. The Respondent states that this instruction was left in an envelope in front of the window with his name on it. The Applicant however denies seeing the envelope and instead, asserts that he was required to seek assistance from an employee he believed to be the Night Allocator. The Applicant also submits that the truck was not available for his use. As a result, the Applicant took a different truck, a larger K200 Kenworth, and a 22-pallet trailer.

[5] Shortly after, the Applicant received a call from Ms Brooke Walker, the Administrative Assistant for the Respondent, instructing the Applicant to return to the depot as he had taken the wrong truck and trailer. Whilst disputed by the parties in relation to the tone and words exchanged during this call, the Applicant headed back to the Depot. The Applicant shortly thereafter received another phone call from Mr Walker in relation to the situation. During this conversation, Mr Walker had instructed the Applicant to take the alternative truck and to confirm whether he would do the delivery. The Respondent alleges that the Applicant was abusive and that he refused to drive any truck other than the Kenworth truck. According to the Applicant, he refused to take that particular truck as he deemed it unsafe and unsuitable for the delivery. The call ended with Mr Walker telling the Applicant to “fuck right off”. The Applicant took this as being dismissed.

[6] The Applicant returned to the Depot, threw the paperwork towards the window and left for the day. The Respondent advises that the Applicant was non-responsive to follow up calls made by the Respondent. The Applicant did not return to work until 16 November 2021 when he attended a meeting with Mr McAlpine, the Director of the Respondent. During this meeting, the Respondent states that the Applicant resigned and the Applicant states that he had already been dismissed by Mr Williams on the 11 November 2021.

RELEVANT LEGISLATION

[7] Section 386 of the Act sets out when a person has been dismissed from their employment and states:

“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.”

[8] It is necessary to determine if the Applicant was dismissed pursuant to s. 386 of the Act. If I find he was not dismissed pursuant to s. 386 of the Act, the application will be dismissed.

Summary of the Respondent’s evidence and submissions

[9] The Respondent refutes that it had dismissed the Applicant. Rather, the Respondent submits that on 11 November 2021, the Applicant had abandoned his duties after being given a lawful direction to utilise a specific truck and trailer to perform his duties. The Applicant did not wish to follow his employer’s directions and went home without giving any form of notice. The Respondent argues that such conduct in abandoning his duties itself amounted to a resignation. On 16 November 2021, the Respondent states that the Applicant confirmed that he had resigned his employment verbally and stormed out of the meeting with Mr McAlpine after discussing the lawful requirements of his employment.

[10] The Applicant was clear in his intent to resign at the meeting on 16 November 2021. In any event, the Applicant resigned on 11 November 2021 from his act of abandoning his duties. The Respondent submits it has acted appropriately by having a further meeting with the Applicant on 16 November 2021 whereby the Applicant’s concerns were discussed, and the Applicant’s further employment was terminated at his own initiative. There were no special circumstances in this matter and the Applicant was not dismissed and the employment relationship had ended at the initiative of the Applicant.

Witness Statement of Mr McAlpine

[11] The Applicant was generally given local runs, that could be completed in a day, these runs utilise smaller trucks and trailers than the longer runs (14 Pallet size). Each Driver receives a run sheet for the days schedule at the commencement of each shift.

[12] Mr. McAlpine was informed by Ms. Walker and Mr. Williams that the Applicant had arrived on the 11 November to commence his shift and without permission had taken a different truck and trailer to the one scheduled. The Applicant then took the incorrect route to Clermont, He was recalled by Ms Walker to return to the Depot.

[13] When the Applicant returned to the Depot, he threw his paperwork in and left the premises. The actions of the Applicant caused extra cost to the business as they had to find another driver to do the run.

[14] On the 16 November, Mr McAlpine had a discussion with the Applicant where he stated that the Applicant had walked out on the 11 November and had not returned and had not made any contact since that date. Mr McAlpine had a face-to-face meeting the next day and explained that he had checked the paperwork for that day and it was correct and the run sheet stated the correct truck and trailer that should have been used that day.

[15] The discussion became heated when Mr McAlpine said that the business specifies what truck and trailer combination is used which is based upon the customer requirements for delivery. The Applicant indicated that he only wanted to drive certain trucks in the fleet.

[16] The Applicant said words to the effect that he was quitting, and he would collect his entitlements. Mr McAlpine stated that was up to the Applicant. They have had no more communication since that date.

Brooke Walker Witness Statement

[17] Ms Walker is an Administrative Assistant at the Respondents business. Whilst driving to work on the 11 November 2021 she saw the wrong truck being driven by the Applicant. Ms Walker knew that this was the wrong truck as it was predominately used by another full-time employee. Further she had done the planning for the vehicles and scheduling the day before and knew that the vehicle was the wrong one.

[18] Ms Walker rang the Applicant and told him that he was using the wrong vehicle and he should return immediately to the Depot. The Applicant swore and disputed his use of the truck.

[19] When the Applicant returned, she saw him hand the paperwork through the window and then the Applicant left the depot. Ms Walker then had to work with others to plan how to deliver the product whilst they were a driver down for the day as the Applicant left the site and was uncontactable.

Cameron Williams Witness Statement

[20] Mr Williams was the former Linehaul Manager for the Respondent business, on the morning of the 11 November 2022 on arrival at the Depot, Mr Williams discovered that the Applicant had disregarded all allocated equipment and taken an incorrect truck and trailer.

[21] He thought that the Applicant was a good driver and had suggested a week earlier that they help him gain his B Double licence. During his testimony Mr Williams stated that ‘At no stage did I expect you (the Applicant) to leave, or did I want you to go anywhere, I was trying to keep you there” as it was hard to get decent drivers.

[22] Mr Williams rang the Applicant and asked why he had made changes to the equipment without notifying or calling anyone in the office. The Applicant replied “fuck you cunts in the office I don’t drive anything but a Kenworth”. Mr Williams told him to return to the Depot.

[23] Mr Williams was not at the Depot when the Applicant returned however when Mr Williams did return, he tried to contact the Applicant however got no response [PN 172]. He further stated that the discussion over the phone was heated but did not think that he dismissed him, rather that they needed drivers and that the Applicant had tried to resign the week before and Mr Williams had persuaded the Applicant to remain [PN186]. Mr Williams indicated that what the Applicant had done was misconduct.

[24] Mr Williams noted that the equipment that the Applicant was designated to drive was in good order and that by taking the incorrect vehicle it caused disruption to the business.

[25] Mr Williams following the Applicants departure from the Depot called several times and did not get any response.

Summary of the Applicant’s evidence and submissions

[26] The Applicant submits that he was dismissed from his employment during the conversation between himself and Mr Williams on 11 November 2021. The Applicant advises that on this day, he arrived at work at approximately 4:00am. He states there were no staff in the office but saw a person on the loading dock. The Applicant advises he had believed this person was the night allocator. As such, the Applicant had approached him asking if he knew which truck was allocated to the Applicant. He and the individual headed to the office to look for any further information.

[27] The Applicant submitted that the Night Allocator went to a lay out sheet, which showed that he had been allocated a truck that was not there, however the specified trailer was in the Depot. The Applicant asked the Allocator if he should take that an alternative combination and the Allocator confirmed it was ok. The Applicant fuelled the truck, went to collect the milk from the warehouse and then headed off on the Emerald-Clermont run.

[28] During the trip early on he received a phone call from Ms Walker who asked the Applicant which truck he was in. When he identified the truck, Ms Walker stated that it was incorrect and told him to return to the Depot.

[29] On the return journey he received a call from Mr Williams who asked if the Applicant was going to complete the run once he had the correct vehicle. When Mr Williams informed the Applicant of which truck he would be using, the Applicant replied stating that he would not complete the run in that truck as it was unsafe and has no fridge to put his food and drinks in and no bunk air conditioning. The Applicant asked for another truck instead of the one proposed to which he says Mr Williams’ answer was no and that he “could fuck right off”

[30] The Applicant called a few days later to enquire about his pay and then he attended the workplace for a meeting with Mr McAlpine. During the meeting Mr McAlpine asked what the Applicant wanted, and he stated that he had been sacked by Mr Williams on the 11 November 2021.

Consideration

[31] In determining whether there was a dismissal the matter comes down to the two discussions the Applicant had, the first with Mr Williams and the second with Mr McAlpine. The Applicants evidence suggests that he was sacked by Mr Williams when told to get his gear out of the truck and “fuck right off” upon his return. It was clear that the Applicant had angered and frustrated Mr Williams by taking the wrong truck and heading off in the wrong route which had blockages as a result of flooding. This was not the first time the Applicant had taken the incorrect truck. It is clear that Mr Williams, who stated that he thought the Applicant was a good driver and had been encouraging the Applicant to go for a B Double license, wanted to keep the Applicant as a driver in the business. The comment that he could “fuck off” was uttered out of frustration at the Applicant for refusing to drive the alternative vehicle. The Applicant made his views clear about the alternative vehicle, in that he was not prepared to drive it nor do the scheduled run. Mr Williams who had responsibility for management of the trucking fleet was clearly very frustrated by the Applicants refusal to drive the assigned vehicle and as he could not use the driver to make the run uttered the phrase “you can fuck off”.

[32] My finding is that the Applicant was not terminated by Mr Williams, in fact the Applicant refused a lawful request and left the workplace. The reason given by the Applicant for his leaving the Depot under cross examination was:

“I chose to do that to save further conflict, because I would have got really pissed off [sic] and probably grabbed someone through the window and done something stupid, which I don’t like doing. So I chose to put my paperwork in the window and leave, before I got out of hand.” [PN289]

[33] This is inconsistent with the Applicant’s assertions that he had been sacked by Mr Williams. The Applicant is saying that he was so angered by having to drive the alternative, and correctly scheduled, truck that he chose to leave the workplace in case he was further angered and possibly violent. I find that the Applicant was not dismissed by Mr Williams during a phone conversation but rather he was called to account for his improper taking of the vehicle and disruption to the schedule for the day and finally refusing to do his scheduled delivery in the correct vehicle.

[34] The Applicant made assertions that the vehicle that was proposed was unsuitable for the run however no evidence was put forward apart from the testimony of the Applicant. Mr Williams states that the vehicle was in good working order and was utilised for work that week, I accept his evidence.

[35] The evidence for the Respondent contends that each driver has their instructions and schedule prepared and ready for them when they commence the shift. This would be a normal operational matter for transport and logistics companies. The Applicant states that he could not find the instructions and enlisted another nameless employee’s assistance to find further information. The Respondent gave evidence that there was an envelope that had all the requisite information, and the Applicant did agree that he discovered the material subsequently. I find that the Respondents version of the events are more credible than the Applicants.

[36] The Applicant’s version of events does not present as a coherent history, and although there were strong words exchanged with Mr Williams which may have included the phrase ‘fuck off”, this was not a dismissal. That expression was out of frustration that if the Applicant could not do the delivery as he was scheduled to do then he was of no use that day to the Respondent. The Applicant did not turn up for work as he was scheduled to do after that meeting and instead phoned on pay day asking about his pay.

[37] I am persuaded by the Respondent’s version whereby the Applicant, when he finally met with the Respondent face to face, was informed that his actions the previous week had a significant impact on the business and that he could not take whichever truck he preferred. I find that the Applicant become increasingly agitated, stated that he wanted to quit, and Mr McAlpine accepted the Applicant’s resignation.

[38] I find that the Applicant was not dismissed by the Respondent but rather freely determined to quit his job. For the reasons given, the Applicant was not dismissed within the meaning of s 386 of the Act. The matter is dismissed.”

Aitken v Alpine Fresh Pty Ltd (2022) FWC 965 27 April 2022 per Lake DP