Bootle v Queensland Pine Company Pty Ltd [1997] QIRC 156 (1997) 154 QGIG 1315

24 ApriL 1997 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1315 ########################################################## QUEENSLAND INDUSTRIAL RELATIONS COMMISSION lndu.1tnal Relations Act 1990 s.295 application for reinstatement John Bootle AND Queensland Pine Company Pty Ltd (No. B/215 of 1996) COMMISSIONER SW AN 10 April 1997 Appllcat10n tor reinstatement Alleged Resignation Subsequent Ofter ot Re-employment to Settle - Bona Fide ofter Extraneous Issues Threatened Resignation Work Performance Discussed Applicant Resigned - Adequate Counselling by Employer Adequate Warning by Employer - Employer Entitled to Act Decisively Costs Against Applicant Application Not Vexatious Costs for Preliminary Hearings to Be Supplied to Registry Application Dismissed. DECISION Thi, rein-.tatcmcnt application has had a chequered history Mr Bootle claim~ to have been dismissed from his employment as Depot Manager with Qucen~land Pinc Company Pty Ltd on 26 June 1996. The respondent states that Mr Bootle had resigned. Before directly determrning that point, the ·'chequered history'· mentioned demands comment. Mr Bootle and the respondent, it appears, became involved in a convoluted and costly process in bringing this matter to trial. Mr Bootle's representation changed on four occasions. to my knowledge. I have some sympathy for the latest advocate, in that I realise she had no involvement with the matter until a few days before the hearing. Much of my critical commentary in this case does not relate to her handling of the case. On each occasion, advisers would usually make conflicting statements 10 the Brnch during the course of a number of preliminary tu~ariogs The preliminary hearings were called because of a fail111e on the applicant's pa11 to properly respond to directions from the Commission on matters such as witness statements etc. The respondent has asked for costs to be awarded against the applicant for at least some of these preliminary hearings. F0r reasons outlined later in this decision. I accede to that request. Clearly, a threshold point needs to be determined by the Commission as to whether the applicant resigned his position with the respondent or, alternatively. whether he was summarily dismissed. as claimed. While this 1s a short point to be determined, in this instance, it involves a consideration of all of the factors su1Tounding the cessation of employment Relevant Employment Particulars Mr Bootle was employed a, Depot Manager for Queensiaml Pine Company Pty Ltd from February 1994 until June 1996. Mr Rootle had p1eviously heen employed by this Company but there was a lapse of many months between engagements. It is only this latter period of employment which is relevant to this matter. Mr Bootle received S700 gross per week and. upon cessation of employment. was paid an extra two weeks' pay. Mr Bootle 1s a gentleman in his early 5/J's who states that he has been unable to find suitable employment since ceasing work with the respondent Consequently, unemployment benefits have been relied upon by the applicant. It is also submitted that Mr Bootle has had to reside outside of Queensland because of his difficult financial situation. Subsequent Offers Made to Applicant by Resp ndent to Settle Dispute In con,idcration of an expected 1equirement to mitigate one·\ lo~s, it i~ relevant to consider subsequent offers made to the applicant by thl' respondent to settle this dispute. Without conceding fault, the respondent did make an offer to the applicant to re,iemploy him in a different position, at a different location, but on a s1rnilitr-•s1lary as previously enjoyed The applicant claims that he rejected the offer because he did not perceive It to be hmw fide as he believccL from discussions around the workplace. that the location envisaged was soon to cease operation Correspondence from the respondent's advocate to the applicant's representative clearly states that this was not the case, and at the time of hearing this matter. that business was stili in operation. Fwm a consideration of all of the d(x:urnentation surrounding this offer. I hclieve that the offer being made by the respondent was hona fide but that the applicant was "holding out" for a settlement which better satisfied his demands On this point alone, I am not convinced that the applicant genuinely sought to mitigate his losses. Background and Particulars Surrounding Cessation of Emplo ·ment From the commencement of the applicant's case. I detected a desire on his part to not only deal with the issues surrounding his termination of employment, hut also to raise issues which ultimately proved to be irrelevant to the reinstatement hearing. These issues centred upon matters the suhject of actton in another jurisdiction and general mischievous commentary. In all, comments made to denigrate the respondent I express no view on the malter to be heard before another tribunal. but only permitted initial commentary on that point because I was a~~ured by the- applicant', representative that the issues were relevant to this trial 1 subsequently found that not to be so. While I appreciate that parties involved in litigation involving dismissal from employment are often distressed and angry. caution and prudence must be exercised in determining which relevant matters arc appropriate to put before the Commission. Colloquially and hluntly put, the desire to "tip a bucket" on someone 111volving matters unrelated to the dismissal could quickly lead to a finding by the Commission that an action bein~ pursued m this vein was '·vexatious" with costs being awarded against the applicant. Having said that, these mfractions were halted and the matter proceeded :Ls II ~hould. The work relationship which existed between the applicant and M1 Efstathis, a Company Director of the Queensland Pine Company Pty Ltd, had been based on an earlier formed friendship between the two. This i~ also evidenced by the fact that Mr Efstathis had re-employed the applicant after a previous cessation of employment Prior to the e'vent~ of 26 June I 996, the applicant had threatened resignation to Mr Efstathi~. The applicant seemed to hold a belief that a threat of resignation was the only way he could get the respondent to discuss matter,;; with him. Threats of resignation are dangerous ploys became they often result in unexpected and immediate responses from employers which usually dispieao;;e the employee .. 22999_LDOC -- 1 of 2 -- 1316 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 24 April, 1997 There 1s evidence before the Commission that a number of discussions had occurred between Mr Efoathis and the applicant concerning the applicant's work performance and his interaction with other employees. I see no need to detail all of this evidence, but it is sufficient to state that l accept the gcne1al thru~l of the evidence that Mr Efatat!tis did immediately. and with danty, raise issues of concern with the applicant. I abo accept that the applicant was advised that unless his working relationship with at least one senior employee improved, then both he and the other employee could face disrrnssai. On the 26 June 1996, there is evidence from Mr Efstathis and another employee, Mr Smith mow an ex-employee of the respondent) that Mr Bootle had resigned his empioyment with the Company. The contrary evidence is from Ms Drury ( an ex-employee of the respondent and a friend of Mr Bootle) and the applicant that he had not resigned. M~ Drury state~ that Mr Efs1aL11i~ had telephoned her to state that he had dismis~ed the applicant. I prefer the evidence of Mr Efstathis and Mr Smith on this point. believe that the applicant did resign his position with the respondent believe tha1 this resignalion was more than a "tlueate11e<..1 res1gnalion" Whatewr the case, it was a resignation immediately accepted by the employer. The elements of "friendship". "threatened resignations". re- engagemcnts" etc that have arisen in this case cause me some concern. more than suspect that the applicant believed that he had some leeway and autonomy in his day-to-day arrangements with the respondent a~. on more than one occasion. the respondent condoned this type of behaviour from the applicant To some degree, the respondent helped create some of the problems it later encountered with the applicant ~tu;.;h has been made during this case of Mr Efstathis' alleged "mood swmgs". The evidence is that Mr Efstathis could become excessively angry and abusive to his employees It seems, on the evidence before me, 10 be reasonable to accept that Mr Efstathis' behaviour was. on occasion, very robust. however, I do not see this factor as being decisive in terms of his interaction with the applicar1t and specifically that which occurred on 26 June 1996 Had I determined that a resignation had not occurred. I would have found a termination of employment at the hands of the employer warranted For reasons stated earlier, the applicant was well aware of the difficulties he faced with his employment; he had been adequately counselled hy his employer: he had been adt'.{1uatcly warned by his employer and at wrne stage this employer was entitled to determine to act decisively with this employee I say this because I accept that the problems encountered by the respondent with the applicant were sufficiently genuine and serious as to warrant action on the employer's part. Other Matters The respondent a-..b for costs against the applicant for the days upon which it h3d to request preliminary hearings lxfore the Commission to e11~ure 1har it would receive appropriate material from which to mount its defence I do propose to award costs against the applicant for occa~iow, which arc later detailed Were the applicant diligently pursuing hi~ claim against the respondent, he should have ensurerl that deadlme~ which were set by the Commission (generous a~ those deadlines were) were honoured. It ~cerfl\ grossly unfair that the respondent should bear the cost of having to pursue the applicant on matters such as this. I :-ee this view a~ not being at odds with the general thrust of the President's determination in Goldman r. Data Genera! Ausrmlio Pry L:d (1993) 144 QGIG 279 This brings into consideration the broader question of costs generally. I have given detailed consideration to whether I believe this application lo be "vexaliou," On balance, l think it not to be so, even though there certainly were distasteful elements which were unnecessarily raised during the case by the applicant. This, J believe, is due partly to the fact that the applicant's advocate had only a short period of time in which to prepare for the case and may not have been fully briefed by her client. I appreciate that the applicant and the respondent neede<l a\sistancc dunng this litigation While I accept that some dismissal cases which come before this Commission are ~traight forward, increasingly many are not. Convoluted contractual employment arrangement~, amongst other things. are often deliberately or unintentionally entered into between employer\ and employees. the unravelling of which is not ea:-.ily achieved. In this case, for reasons earlier cited. some of the problems encountered at this workplace by the applicant were not all of his making. In all, wa~ it reasonable for the applicant to believe that he could honestly litigate thi~ cla1m' 1 While I harbour some reservations, I accept that the appiicant believed that he should pursue this case to finalisation and consequently I do not propose to award costs other than those which have been detailed I determine that the applicant pay to the re:-.pondent costs incurred on those dates when the respondent had to pursue preliminary hearings before the Commission to establish, firstly, whether the matter wa\ continuing (before they expended further costs) and, ~econdly, the particulars of the case it was to answer. The respondent is to detail those costs to the Registry 110 later than one week from !he date of rcleai;e of this decision. A supplementary decision will then issue, after consideration of this material I dismiss the application. D.A. Swan, Comrnis:-.iuner. Appnirances ·- \-ts M Mulcahy for the applicant Ms K Prior for the respondent. Operative Date: NIA Decision Application Dismissed Released 11 April 1997 ########################################################## -- 2 of 2 --