Towers v Manning [2001] NSWIRComm 108 (22 May 2001)

Last Updated: 12 June 2001

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Towers v Manning [2001] NSWIRComm 108

FILE NUMBER(S): IRC2526

HEARING DATE(S): 10/05/2001

DECISION DATE: 22/05/2001

PARTIES:

Wayne Towers

Rodney Manning

JUDGMENT OF: Harrison DP

LEGAL REPRESENTATIVES

APPLICANT

Mr W Towers

RESPONDENT

Mr R Manning

CASES CITED:

LEGISLATION CITED: Industrial Relations Act 1996

JUDGMENT:

- 4 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

CORAM: HARRISON DP

Tuesday, 22 May 2001

Matter No IRC 2526 of 2000

WAYNE TOWERS & RODNEY MANNING

Application re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

DECISION

1    Arbitration proceedings in this matter took place at Taree Court House on 10 May 2001, earlier attempts at conciliation having proved unsuccessful.

2    Mr W Towers, the applicant, appeared on his own behalf. Mr R Manning, the respondent, appeared on his own behalf.

3    Mr Towers gave a deposition, as did Mr Manning who also called Mr Clinton Green, an employee of Chatham Fresh Bake, to give evidence.

THE FACTS

4    Mr Tower was employed at Chatham Fresh Bake, a bakery located in the Taree district, from 13 September 1999 by the previous proprietor. Mr Manning acquired the business on 11 November 1999.

5    The uncontested evidence is that throughout the earlier part of the year 2000 Mr Towers expressed his dissatisfaction with the work and the Taree district, informing Mr Manning and Mr Green, amongst others, that he was going to quit, sell up and move on. Some two months prior to the termination of Mr Towers' employment, Mr Manning requested that Mr Towers delay his resignation and departure until a replacement could be found. It was acknowledged by the parties that it would take some time to find a qualified baker in the district.

6    It is Mr Manning's evidence that a replacement employee became available and he then let Mr Towers go, in accordance with his understanding of Mr Towers' wishes.

7    The relevant evidence of Mr Towers is found at page 11 of transcript in the following terms:

MANNING: Q: On the occasion that we were sitting out the back, did you tell me that you were jack of it, you were selling up and you were going?

TOWERS: A: Yes.

Q: And I asked you could you stay until I found someone else and you said yes?

A: Yes.

Q: From that time to the time you left, you made several - you said several times, a number of times, "this is no good, I'm not happy here, I'm out of here as soon as I can, I'm leaving", words to that effect. I can't remember the exact words but words to the effect of, "I've had enough of this, I'm leaving"?

A: Yeah.

8    Mr Towers protests that he did not actually resign, had not provided Mr Manning with any firm departure date or resignation in writing and, whilst it was his intention to leave, he regarded the termination of his employment to be at the initiative of the employer without cause, and accordingly harsh, unjust and unreasonable.

9    Mr Towers relied upon the dictionary definition of "resignation", which he put was "to give up", or "go" to distinguish between his actions in the months prior to the termination of his employment. Mr Towers readily concedes that he had spoken about leaving and various dissatisfactions but had not given up or gone as the term "resignation" means.

10    Mr Towers further deposed that he had been paid one week's pay in lieu by Mr Manning, which he put was indicative of termination of employment by the employer. Mr Towers denied that he had prearranged alternative employment on the Central Coast as that position, which he continues to occupy, did not come on offer until eleven days after the termination of his employment.

11    Mr Towers further relied on the advertisement of his position by Chatham Fresh Bake in the weeks prior to the termination of his employment as indicative of the employer's intention to replace him.

12    The evidence of Mr Towers and Manning is that their working relationship was cordial and that there had not been a cross word between them during the course of employment.

13    The evidence of Mr Towers is that on the date of termination of his employment he was called into work at approximately 1.05 pm by Mr Manning to collect his pay. Mr Towers deposed that he met with Mr and Mrs Manning, collected and signed for his wages. It is Mr Towers evidence that Mr Manning informed him that he was letting him go as he was not happy in his job and it was starting to show in the product. Mr Towers deposed that he responded by shaking Mr Manning's hand, thanking him for employment, and then leaving the bakery.

14    Mr Towers put that he had been out of work for two and a half weeks as a consequence of the termination of his employment and sought compensation of $1,250.00.

CONSIDERATION

15    On the facts of this matter the termination of employment by the respondent could not be regarded as harsh, unreasonable or unjust within the meaning of s84 of the Industrial Relations Act 1996 (`the Act").

16    The conclusion of employment occurred in accordance with the apparently express wishes of the applicant who did not protest on departure. The advertisement of the position prior to the date of termination of employment is consistent with the evidence of the applicant's expressed intentions of departure and the employer's request that he stay on until a replacement was found.

17    Mr Towers' failure to question the advertisement of his position or the termination of his employment in any way takes his action from intent to resign to resignation. The respondent was entitled to believe that in seeking a replacement employee he was acting in accord with the applicant's requirements to conclude his employment.

18    The payment of one week's pay in lieu of notice is not a determinant in this matter and appears more as an ex gratia payment by the respondent.

19    I find that the repeated expression of desire to leave and lack of protest on departure is effective resignation by the applicant. It would be better if such arrangements had been in a more formal and definitive manner, however in the circumstances of this small business effective communications were verbal and informal. This should be corrected for the future.

20    The application for relief is refused.

21    Matter No IRC 2526 of 2000 is so concluded.

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LAST UPDATED: 23/05/2001