Robert Stanfield v Peter J Burgess and Associates Pty Limited Sca [1992] ACTSC 67; (1992) 108 FLR 87 (8 July 1992)

SUPREME COURT OF THE ACT

ROBERT STANFIELD v. PETER J BURGESS AND ASSOCIATES PTY LIMITED
S.C.A. No. 1 of 1992
Master and Servant
[1992] ACTSC 67; (1992) 108 FLR 87

COURT

IN THE SUPREME COURT OF THE AUSTRALIA CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Master and Servant - Dismissal - Appeal from Magistrates Court.

Master and Servant - The contract of service and rights, duties and liabilities as between Master and Servant - Non-compliance by employee - Whether dismissal real or perceived - Conduct of parties - Characterisation - Whether wrongful in circumstances.

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167

Robinson v Crompton Parkinson Ltd (1978) IRLR 61

Marriott v Oxford and District Co-operative Society Ltd (1970) 1 QB 186

Mann v Capital Territory Health Commission (1982) 42 ALR 46

HEARING

CANBERRA
8:7:1992

Counsel for the Appellant: Mr R Thomas

Instructing solicitors: Pappas J - Attorney

Counsel for the Respondent: Mr H Selby

Instructing solicitors: Messrs Meyer Boettcher and

Clapham

ORDER

The Court orders that:
1. The appeal be dismissed.

DECISION

This is an appeal against a decision of Magistrate Ward handed down on 19 December 1991.

2. On 14 May 1991, the appellant sued the respondent for wrongful dismissal. It was common ground that the appellant was employed by the respondent from about 14 March 1990 as a construction inspector. The terms of the engagement of the appellant were set out in a letter of 22 February 1990 with attachments thereto. It was expressly provided that the minimum period of engagement was to be 26 weeks. The project in respect of which the appellant was engaged was a tailings dam near Jabiru in the Northern Territory. The works were to be constructed by Ranger Uranium Mines Ltd ("Ranger") through its employees and sub-contractors.

3. As the learned Magistrate noted, the appellant's duties on behalf of his employer, the respondent, were to inspect the works as they progressed and ensure compliance by Ranger with the construction agreement.

4. For various reasons, some environmental, some to do with safety and some to do with ensuring protection of areas of significance to Aboriginal people, Ranger had significant rights of control over access to the construction site and its environs. Attachment C to the terms of engagement, accepted by the appellant, bound the appellant to respect those powers.

5. Clause 18 was referred to by the learned Magistrate. Clause 18(a) was regarded as relevant. It provided:-

"Employees are required to observe safe working
practices. Employees who fail to comply with the
Site Safety Regulations will be dismissed."

I agree with his Worship that the provision as to dismissal meant dismissal by the employer, that is, the respondent. It did not oblige the respondent to exercise that power.

6. The appellant took up his duties in March 1990. His supervisor, a fellow employee of the respondent, was Mike Norman ("Norman"). It was to Norman that the appellant from time to time reported alleged breaches of specifications by Ranger. Mr Mike Hoey ("Hoey") was Ranger's senior representative on site. It seems that there was conflict between Hoey and the appellant. Hoey was entitled, as far as both Ranger and the respondent were concerned, to exercise Ranger's powers to restrict access to the work site. Thus the appellant was bound by his agreement with the respondent to obey such directions from Hoey.

7. There was a dispute which arose between Hoey and the appellant a few days before 9 July 1990. As a result of that conflict, the appellant left Jabiru on 9 July 1990. He claims that, effectively, he was wrongfully dismissed from his position in breach of his agreement with the respondent.

8. If the appellant is correct in that conclusion, the respondent concedes that the appellant would have been entitled to judgment for $12,480.00 for earnings foregone and $2,500.00 for relocation expenses (plus interest).

9. The respondent counter-claimed that the appellant had, contrary to the agreement between them, simply terminated that agreement without proper notice. The respondent claimed damages for that breach of agreement by the appellant. It was conceded by the appellant that, if the respondent's contention was correct, the respondent was entitled to judgment for the sum of $1,681.70 (plus interest as prescribed).

10. There was no issue between the appellant and the respondent as to the right of Ranger's superintendent, Hoey, to refuse access to the dam site. Of course, whether the purported exercise of that right was lawful or not, or reasonable or not, might well have been open to question.

11. Additionally to speaking to Norman about alleged shortcomings by Ranger, the appellant approached Hoey directly with complaints. He did this only on the day he left, the 9th July 1990.

12. The dispute began, according to the appellant, on 7 July 1990.
On that day, he said -

"... Michael Howie (sic, that is, "Hoey") accused
me of parking a vehicle too close to an operating
loader. I took this as a type of intimidation and
walked out of the discussion."

The appellant disputed the merits of that accusation by Hoey. In effect, Hoey accused the appellant of breaching the site safety regulations in so parking his vehicle.

13. Subsequently, the appellant was threatened by Hoey with withdrawal of his "pit permit". If Hoey carried out his threat, the appellant would, effectively, have been prevented from gaining access to the work site.

14. The appellant subsequently spoke to Norman. He said -

"On the Sunday I spoke to Mike Norman and said
that I wasn't willing to put up with that and if
they - I was going to see Mike Howie (Hoey) about
getting the job back closer to specification."

On Monday, 9 July 1990, the appellant confronted Hoey. He told him -

"... as far as I was concerned the specifications
had to be adhered to. I wasn't - an argument
developed. ... He ordered me off the site and
threatened to have me physically removed ..."

There then followed, the appellant claimed, a further conversation with Norman. The appellant told Norman that he would move to Darwin until the situation was resolved. He said that he asked Norman to have the principal of the respondent, Peter Burgess ("Burgess"), contact him in Darwin.

15. Subsequently, he said, he contacted Norman at Jabiru on two occasions. He was not advised that the problems with Hoey had been resolved. He was not requested to return to the site. Eventually, he left Darwin believing his services were no longer required.

16. It is clear that the appellant considered that Hoey's attitude was motivated by a desire to intimidate him into excusing sub-standard work.

17. In cross-examination, the appellant conceded that Norman had said to him before he left Jabiru -

"Let's see if we can sort it out."

However, he asserted that he replied -

"All right, well I'll be in Darwin. I'll stay in
Darwin for a while, you can contact me there."

He said that he gave Norman his phone number at that point.

18. Norman was called as a witness for the respondent. He recalled the complaint concerning the appellant's alleged non-compliance with safety regulations as having been made on Thursday, 5 July 1990. He confirmed that the appellant denied that he had been in breach of site safety regulations. However, it was apparent that the appellant had, in fact, breached the terms of the safety regulations. The real issue was whether his breach was merely technical or otherwise.

19. Norman recalled seeing the appellant again on the evening of Saturday, 7 July 1990. That was to discuss the alleged breach of safety regulations by the appellant. The appellant admitted that he had made visual rather than radio contact with the relevant loader driver. Radio contact was prescribed by the regulations before approaching the loader. The appellant vehemently denied, however, that his conduct was substantively unsafe. He considered the regulation as prescribed to be impractical and unnecessary.

20. According to Norman, the appellant claimed that he had acted in accordance with "normal construction practice". He thought the complaint against him was "rather petty". Norman said that eventually,

"...he (the appellant) stormed out of the office
and essentially resigned his position saying,
'I've had enough and I'm leaving, I'm going, I am
off to Darwin ... I've had enough, this is
ridiculous and I'm off.'"

Hoey was present at this discussion. The latter did not say that the appellant was banned from the work site but he did tell the appellant, according to Norman, "one of our options is that I will withdraw your pit permit".

21. After that, Norman said, he had a private discussion with the appellant. He tried to persuade him to stay, if not for the duration of the project, then, at least for a week while a replacement for him was sought.

22. The next Norman knew of the matter was about 10.30am on Monday, 9 July 1990. He spoke to the appellant on the phone. The appellant had packed his vehicle and collected his dog preparatory to going to Darwin.

23. The appellant told Norman that he had seen Hoey and "he'd (that is, Hoey) thrown him (the appellant) off the site", and "he'd (that is, the appellant) had enough and he's (that is, the appellant) going to Darwin". Norman then went to his quarters. The appellant was there and they spoke together.

24. The appellant said that he could not work effectively on the site because of Hoey's actions and attitude. Norman said to the appellant -

"Well, we can always - there was always room for
discussions with Ranger."

He also told the Court -

"... I also told him that I was very happy with
his technical ability on the site and all the way
through I've never doubted what he was doing on
the site technically. And that it would be
disappointing to, you know, to lose his work. He
said that he didn't think it would make any
difference and he was going into Darwin."

Norman denied that the appellant made any arrangement with him as to subsequent contact. He said that the appellant did not give him any telephone number or other means for contacting him.

25. Some weeks later, Norman said, the appellant rang him. However, Norman was not asked what was said. Presumably nothing significant was said.

26. Norman agreed that, without site access, the appellant could not carry out his duties. He asserted, in cross-examination, that he had offered the appellant "the possibility of taking time off and thinking about it".

27. Norman went on to say -

"I offered him the possibility of renegotiation.
He believed that he couldn't work effectively
regardless of that and he was going to Darwin and
then on down south."

He did not, he said, "give (the appellant) an order to stay" at Jabiru while negotiations took place. Norman believed that the appellant, by leaving, was terminating his employment.

28. Of course, Norman's understanding is not determinative of the matter.

29. So far as the facts are concerned, the learned Magistrate preferred Norman's account of his meetings with the appellant. He gave his reasons for doing so. He saw and heard both of those witnesses. Norman's demeanor impressed him. He was entitled, therefore, to prefer Norman's account. I can find no compelling reason to say that conclusion was wrong. I consider that I must proceed, as did the learned Magistrate, on the basis that Norman's version of his meetings with the appellant is the more accurate reflection of the facts (see Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167).

30. His Worship accepted the appellant's summary of his argument with Hoey on Monday, 9 July 1990. That meeting, his Worship characterised as "contrary to the terms of (the appellant's) employment contract". If it matters, I do not think it was a breach of that contract for the appellant to speak directly to Hoey. It was not a good idea. It was likely to inflame the situation (as it apparently did). He should have left it to his supervisor, Norman, to negotiate with Hoey, or with those above Hoey in the Ranger organisation.

31. I do not, however, draw the conclusion that his Worship was of the opinion that, by speaking to Hoey, the appellant was resigning his position. Indeed, Norman took no exception to the appellant speaking to Hoey. He did not even purport to dismiss the appellant whether for that or any other reason. He simply accepted that the appellant was accurately conveying to him that Hoey had, at least on the Monday, decided to forbid the appellant from henceforth entering the work site.

32. So long as that order of Hoey's remained in force, the appellant could not, as Norman accepted, work effectively on site.

33. His Worship considered the banning to be "irrelevant". He thought there was evidence that such bannings were usually temporary. I have to say that I cannot agree that the banning was irrelevant. I cannot locate any evidence that "such bannings are usually temporary". Nevertheless, even if those conclusions were not warranted neither of them affects the ultimate conclusion that -

"... in the meantime the plaintiff was still
employed by the defendant."

34. I think his Worship probably had in mind that, had the appellant brought about his banning by his own misconduct, even if the appellant himself did not accept that characterisation of his behaviour, the respondent might well have been entitled to dismiss him. Norman, however, did not conclude that the ban imposed was irreversible. He was prepared to try to have it reversed. He had not considered that its imposition required him to dismiss the appellant.

35. I agree with his Worship that the appellant was, in effect, vulnerable. He had breached site safety regulations. He may well have believed that he had complied with their spirit but he knew he had breached their letter. He believed the particular regulation to be either useless or, at least, not very useful. He had, however, given Hoey a legitimate reason to ban him from the work site. If he was banned he became useless to the respondent. Even so, Norman did not dismiss him. He did not even threaten to dismiss him if the ban was not lifted. The most that could be inferred is that Norman had not made up his mind what would happen next. It was possible that the appellant had placed himself in a position where he could have been lawfully dismissed by the respondent but it is clear that Norman did not purport to exercise that power.

36. Mr Thomas, for the appellant, argued both before the learned Magistrate and before me that Hoey had, effectively, dismissed the appellant and that he was the agent of the respondent in doing so. That conclusion arose, he submitted, from the terms of the agreement.

37. In my opinion, the agreement between the appellant and the respondent does not bear that construction. Accordingly, I reject that submission.

38. The obligation to conform to Ranger's regulations was one imposed by the agreement. If the appellant breached that obligation it would have been open to the respondent to terminate the appellant's employment. If Ranger's allegations of breach were unfounded it may be that a dismissal based merely on an allegation of such a breach would be wrongful.

39. It is unnecessary to consider what the respondent, if there was a dispute with Ranger as to the appellant's access to the site, needed to do to resolve such a dispute. The fact is that the appellant considered his employment to have been terminated as a result of Hoey's pronouncements. He wanted Hoey brought to heel. Without that he was not prepared to resume his duties, even if Hoey was prepared to allow access. The appellant was, not unreasonably, more concerned to ensure compliance with specifications than with Hoey's right to terminate his access for non-compliance with safety regulations. Indeed, he regarded that allegation as a mere pretext on Hoey's part to avoid compliance with the specifications prescribed for the works. In no way was Hoey an agent for the respondent or acting on its behalf in imposing a ban on the appellant's access to the work site.

40. The real question was whether the employer, in the circumstances, had constructively dismissed the appellant and, if so, whether that dismissal was wrongful.

41. In Robinson v Crompton Parkinson Ltd (1978) IRLR 61, the appellant had been wrongly accused of theft by his employer. He did not receive an apology so he resigned. He was subsequently acquitted. The Employment Appeal Tribunal accepted that, by so accusing him and refusing to retract the accusation, the employer was in breach of its contract with the appellant.

42. However, I agree with his Worship that the above case is not analogous to the instant matter. If Norman had unfairly and improperly accused the appellant of misconduct so that the appellant resigned, either expressly or by implication, it may well be that the situation would be characterised as a dismissal by the employer. Norman did not, however, say he agreed with Hoey. He did not say that he accepted Hoey's decision. He was prepared to try to persuade Hoey to change his mind. He expressed confidence in the appellant's skill and devotion to his duties. He accepted that the appellant's complaints about non-compliance with specifications had been appropriate.

43. Marriott v Oxford and District Co-operative Society Ltd (No. 2) (1970) 1 QB 186, is not in point either. Norman did not propose to reduce the appellant's wages or conditions. He imposed no conditions on the appellant. He did not ask the appellant to resign. He did not ask the appellant to leave Jabiru. Indeed, he urged him to stay although he did not "order" him to stay. None of the other cases cited assist the appellant either.

44. If the appellant concluded that the respondent had dismissed him merely by failing to order him to stay then, in my opinion, he was seriously mistaken. No such conclusion could, or should, reasonably be drawn.

45. Nor, indeed, would it have been a breach of the employer's duties under the agreement if the appellant was prevented from actively and effectively carrying out his duties (see Mann v Capital Territory Health Commission (1982) 42 ALR 46).

46. I do not think it is necessary to speculate upon the processes which Norman could have activated to resolve the dispute with Hoey. I agree with Mr Thomas that, prima facie, cl. 10 of attachment C of the agreement was probably inapplicable to the situation. I think his Worship was merely considering that procedure as providing a model which could have been adopted in an attempt to resolve the dispute. However, nothing turns on that question.

47. The real thrust of his Worship's decision was that, instead of letting Norman do what he could, whether with Burgess' aid or not, and whether by negotiating with Hoey or his superiors or not, the appellant "spat the dummy" and headed off to Darwin and out of touch. He effectively threw in his job. That accords with my view of the matter. I agree with his Worship that, by acting as he did, the appellant was in serious breach of his contract of employment, even assuming that his admitted breach of the safety regulations was not such a breach. The respondent did no more subsequently than to accept the appellant's wrongful repudiation of that contract. His Worship, therefore, correctly dismissed the appellant's claim and correctly upheld the respondent's counter-claim.

48. I dismiss the appeal accordingly.

49. I will hear the parties as to the costs of the appeal.