[20] It is to invite error to begin by identifying what contracts or arrangements are related one to another. It invites error because it suggests that it is appropriate then to ask whether any of that interlocking set of arrangements made provision for the performance of work in an industry, and to treat any and every aspect of the interlocking arrangements that have been identified as amenable to the powers given to the Commission under s 106. And that is the way in which much of the argument advanced on behalf of those parties who were applicants in the Commission proceeded.
[31] What emerges from the above extract is that in considering whether a contract alleged to be unfair under s 106 is one whereby a person performs work in any industry, the first step is to enquire whether a person performs work in any industry. The second step is to identify the contract as understood in its extended sense under s 105 according to which a person performs work. The third step, provided the requisite preconditions are satisfied (that is the contract whereby work is performed is found to be unfair and is amenable to orders for relief), is to avoid or vary any part of the contract (or arrangements) in accordance with which a person performs work: see also Wirraway (NSW) Pty Ltd and Anor v Ultra Tune Australia Pty Ltd [2006] NSWIRComm 300 at [42].
40 In Fish, two contracts were under consideration, the share purchase agreement and the employment contract entered into by Mr Fish. The original proceedings brought under s 106 in the Commission in Court Session (as it then was) sought orders only in relation to the Share Purchase Agreement, not in relation to the employment contract. The latter contract was a contract whereby work was performed. The former was held not to constitute either in whole or as to its particular provisions, a contract whereby work was performed: Fish at [43].
41 Reference should also be made to certain observations in the majority judgment in Fish (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ) concerning the use of the word "directly" as an adjunct to the requirement that an impugned contract must be one "whereby a person performs work in any industry". The word, described as a gloss on the section by the majority in Fish, was used as part of the description of a contract as one whereby work is performed by Mason and Jacobs JJ in Stevenson v Barham (1977) 136 CLR 190. On that issue, the majority in Fish said:
[27] On the appeal to this Court in Stevenson v Barham , emphasis appears to have been placed in argument upon a notion of subversion of industrial regulation as marking the limit of the ambit of the Commission's powers to decide that a contract was unfair. The argument was rejected. Rather, the decision in Stevenson v Barham was taken, in subsequent cases, as holding that the relevant jurisdictional fact to be established in the Commission was that "if the contract is one which leads directly to a person working in any industry it has the requisite industrial character - it is a contract `whereby a person performs work in any industry'" (emphasis added). And reference was subsequently made, not infrequently, to the remark of Barwick CJ that "the language of s 88F ... is intractable and must be given effect according to its width and generality".
[28] The description of a contract as "one which leads directly to a person working in any industry" is not without its difficulty. What is meant, in this context, by "directly"? As Lord Diplock, giving the advice of the Privy Council in Caltex Oil (Australia) Pty Ltd v Feenan , pointed out, this, and other glosses on the section, must not be permitted to divert argument away from the words of the statute in an attempt to "construe" the words in which judges express their reasons for reaching a conclusion in a particular case. To divert attention in that way is wrong. And even the gloss on the word "whereby" offered in the Caltex Case ("in consequence of which" or "in fulfilment of which"), like the gloss offered earlier in these reasons (according to which), must not be misunderstood as necessarily solving every difficulty that may be presented in seeking to apply the statutory language.
[29] What emerges from Stevenson v Barham is the perception of a difficulty in reading the "intractable" language of s 88F in a way that did not give the Commission power to interfere with any and every kind of bargain. Barwick CJ, in Stevenson v Barham , said that:
[t]he legislature has apparently left it to the good sense of the ... Commission not to use its extensive discretion to interfere with bargains freely made by a person who was under no constraint or (2006) 225 CLR 180 at 193 inequality, or whose labour was not being oppressively exploited. And the reference, by Mason and Jacobs JJ, to a transaction which "leads directly to a person working in any industry" was evidently intended to mark a limit upon the Commission's jurisdiction.
42 It may be noted that the jurisdiction under s 106 of the Act has never been confined to what may be described as the traditional employment contract. The unfair contract provisions are not specifically directed in terms to an employment relationship. The legislation was initially directed towards contract labourers. The unfair contract provisions when drafted were intended to provide additional protection to deal with certain abuses of the contract system in prescribed trades. A brief historical overview of the legislation serves to illustrate this point.
43 The jurisdiction in relation to unfair contracts was first conferred in 1959 by s 88F of the Industrial Arbitration Act 1940. In the second reading speech for the Industrial Arbitration (Amendment) Bill which introduced s 88F and other related provisions, a brief exchange between Mr Landa, the Minister moving the reading of the amendment bill, and another person (Mr Doig), suggests that taxi drivers, as transport contractors, were intended to fall within the new provisions. The exchange (at pp 2115 and 2116, Hansard, Second Reading Speech, 18 November 1959) was recorded as follows:
Mr Landa: Clause 8 contains important amendments to section 88B, relating to the restriction of certain contracts. These provisions are not novel; attempts have been made to deal with this problem on several occasions under the Act. It is proposed to insert new sections to effect a new approach to the problem of contracts by bread vendors, milk vendors, certain transport contractors, painters, carpenters and bricklayers.
Mr Doig: And taxi drivers.
Mr Landa: They would come under transport contractors.
44 Later in the second reading speech, the new s 88F (and its relationship to s 88B) was specifically addressed (at pp 2129, 2130):
New section 88F renders any contract relating to any work in any industry liable to be challenged before the industrial tribunals on the grounds that the contract is unfair; harsh or unconscionable; against the public interest; provides or has provided a total remuneration less than a person performing the work would have received as an employee performing such work; or was designed to or does avoid the provisions of an award or agreement. The opposite of each of those propositions would be a fair defence.
These amendments have been found necessary because the restrictions imposed on the contract system in 1957 have not proved adequate to deal with the abuses in the trades already prescribed under section 88B and the additional trades have been prescribed because of the growth of abuse of the contract system, particularly in the building trades. Very many building projects are now constructed almost entirely under the contract system. This system could be tolerated only if award standards were constantly maintained. The abuse of the contract system would lower the standards of wages and working conditions built up over many years of intense union organisation and industrial action. In the event of a recession rival contractors are likely to indulge in cut-throat competition which might be expected quickly to lower existing standards. The Government will watch the operation of these amendments with great vigilance and if abuses continue despite the amendments, consideration will be given to further amending the legislation. Equally, the Government will be on the watch for any harsh or unconscionable effects of the operation of these amendments.
45 Agius v Arrow Freightways Pty Ltd [1965] AR (NSW) 77 was the first case brought under s 88F of the 1940 Act. It concerned the sale of a delivery run business and a Morris Messenger van that went with the business. Beattie J found that under the terms of the contract (which included both written and oral terms) the respondent provided work and the applicant carried out the work. His Honour said it was "immaterial" whether or not the applicant performed the work as an employee or as an independent contractor (at 86).
46 In Davies & Anor v General Transport Development Pty Ltd & Ors [1967] AR (NSW) 371 (which also involved a trucking contract) Sheldon J made the following remarks on the scope and purpose of s 88F (at 373):
As this section has received some salutary publicity recently, it seems opportune to sound a cautionary note. It is, of course, obvious that s 88F is not a revolutionary measure in general law reform imposing, in (a), (b), and (c), a form of palm-tree control over the principles developed in the courts of common law and equity and the traditional statutes relating to contracts. If it were, it would be odd to find it hidden in the middle of an Act which is familiar only to a relatively few specialised lawyers. Nor would this Commission (and until recently, even more incongruously, conciliation committees) be appropriate as the sole repository of such sweeping powers. In fact, there is no general charter in s 88F to rescind or vary contracts because they are thought to be oppressive. Its place is in this Act because its basic purpose is industrial. The crucial, and restrictive, words are "whereby a person performs work in any industry". So read, the section is put into focus and is seen to be but one of several in the Act designed to protect the arbitration system against those who enter its allotted field unprepared to pay the standard price of admission - the regulation of wages and conditions of employment by award or industrial agreement. This includes not only those who directly avoid such regulation by chicanery but also some of those who get their work done for them in a way which gives them a business advantage over competitors so bound. Thus, the section invades only one bastion in the citadel of private contract and does so, primarily, not because certain contracts are unjust to individuals but because they are subversive of the orderly control of industry.
47 In Manni v Scully and Another [1967] AR (NSW) 606, it was contended that s 88F was meant to apply only to non-employees such as independent contractors, and that the rights of employees were protected by other provisions in the 1940 Act. Although the point was not decided, Sheehy J made a number of observations to the effect that employees could also avail themselves of the section (at 615):
The section itself indicates that it is remedial in intent and if a person is oppressed by a contract coming within its scope it matters little whether he is an employee or not. There may even be a greater reason for the operation of such a law to assist an employee rather than an independent contractor but both classes would seem to me to be equally within the protection that the section affords. It is not to the point to say that an employee might invoke ss 92 and 93 to claim the benefit of an award, because such provisions do not deal with the same subject matter as s 88F, although they may cover the same field in some respects; for example, an employee might be receiving the award wage and yet might still justifiably claim relief under s 88F from some contract or arrangement which is unfair, harsh or unconscionable or against the public interest.
48 It appears it was until 1984 in Ronan v University of Wollongong (1984) 9 IR 1 that s 88F of the 1940 Act was held to apply to individual contracts of employment (at 5 and 8 per Glynn J).
49 The necessary focus under s 106 is whether the applicant performed work in any industry. The focus envisages a broader field of inquiry than one reserved or confined to the traditional contract of employment. According to the majority judgment in Fish, the first step in the inquiry is to ascertain whether the applicant performed work in any industry. The second step (assuming the answer leads to further inquiry) is to identify the contract or arrangement according to which the applicant performed work.
50 Mr Stewart, in his evidence, provided a brief description of how the respondent's business operated. According to him, the respondent owns the taxis and the licences for those taxis. It employs 13 persons and has 50 drivers contracted to it under a bailment agreement. The operation involves 19 taxis licensed within the Wingecarribee Shire, as well as two mini-coaches, one hire car, and a retail workshop. The business operates out of an office with a telephone number and a booking system. All taxi drivers sign a bailment agreement which is a standard agreement under which the bailee (the driver) is entitled to a rate of 40 per cent of chargeable fees. The respondent retains 60 per cent. The respondent works out the roster for the drivers and allocates the jobs to those drivers. Under the agreement the drivers are subject to a number of requirements which include the wearing of uniforms and presenting for work in accordance with the roster system. The allocator runs the radio room from which the jobs are dispatched and sets up the rosters for the shifts, as well as checking the drivers' "pay in" sheets (the daily work sheets). The daily work sheets are filled in by the drivers. In addition, the drivers retain 100 per cent of all tips. According to Mr Stewart, the applicant's roster changed from time to time by agreement between the applicant and the respondent's operations manager (Mr Turner).
51 The applicant worked in the respondent's business on a full-time basis as a taxi driver, operating principally in Moss Vale, Mittagong and Bowral. He worked six shifts per week in accordance with the roster system which he said was issued by the respondent seven days in advance. The applicant said he signed a contract of bailment when he commenced working for the respondent. Independent records disclose that the applicant submitted his own income tax returns in which he claimed deductions for a business which was in his own name. The business activity was described in his income tax returns as a taxi cab service.
52 These matters facilitate a conclusion that the applicant performed work in an industry.
What was the contract or arrangement whereby the applicant performed the work?
53 The second step in the inquiry is to identify the contract whereby the applicant performed work as a taxi driver. The only contract under consideration in the present proceedings is the bailment agreement. According to the respondent, that agreement evidences a joint venture between the parties. It was said to follow from this that it was not an agreement whereby the applicant performed work for the respondent.
54 The proposition that the relationship between the parties was akin to a joint venture (and therefore outside the jurisdictional reach of s 106) was based primarily on the Full Federal Court judgment in De Luxe Red and Yellow Cabs. In issue in that judgment was whether the payments made to taxi drivers by the respondent taxi operators fell within the meaning of "salary or wages" under s 221C(1A) of the Income Tax Assessment Act 1936 (Cth) so that the respondents were bound to make a deduction as required by the PAYE provisions. The respondent taxi operators had contended that no relationship of employment existed with the drivers and therefore no liability arose to deduct PAYE tax. According to the respondents, their relationship with the drivers was one of bailment.
55 Before the Full Court, the argument was confined to the position in New South Wales. Three of the respondents operated in New South Wales however the Full Court found it necessary to consider only the position of the first respondent, De Luxe Red and Yellow Cabs (De Luxe). There was no written contract between De Luxe and the drivers. Instead, the position was said to be governed by Chapter 6 of the Industrial Relations Act and the Taxi Industry (Contract Drivers) Determination 1984, as amended, and in force at the time of the proceedings before the Full Court. Under that statutory framework there was a requirement that there be a bailment relationship between the owner of the taxi licence and the driver.
56 The Court's attention in these proceedings was not directed to any specific part of the Full Court judgment. The reliance placed on the judgment by the respondent was confined to a finding in the judgment that the relationship between the parties was in the nature of a joint venture. The analogy sought to be drawn between that finding and the present circumstances was that the relationship between the applicant and the respondent under the bailment agreement was also in the nature of a joint venture. It followed from this, it was said, that the applicant worked for himself, not for the respondent.
57 The bailment relationship in De Luxe Red and Yellow Cabs was governed by the statutory framework in New South Wales. It was characterised by the Full Court as a joint venture (at 522). The issue in the case as noted earlier was whether amounts paid to the taxi drivers by the taxi operator fell within the meaning of "salary or wages" under the Income Tax Assessment Act. The finding that the relationship was one of bailment and not one of employment released the taxi operators of any obligation to deduct payments in accordance with s 221C(1A) of that Act.
58 Under s 106 of the Act, the jurisdictional fact which must be established is that the contract or arrangement which the applicant seeks to void or vary is a "contract whereby (the applicant) performs work in any industry". It is not decisive to the determination of that issue whether the applicant was in an employment relationship or some other relationship such as that of bailment or independent contractor.
59 As to the significance of a joint venture, the term was not defined in De Luxe Red and Yellow Cabs and no definition of the term was forthcoming by the respondent in these proceedings. In Butterworth's Australian Legal Dictionary (Reprint 2003), the term is defined as follows:
An association of persons for particular trading, commercial, mining, or other financial undertakings or endeavours with a view to mutual profit. Each participant usually, but not necessarily, contributes money, property or skill. It is not a technical legal term with a settled common law meaning: United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1; 60 ALR 741. The association is usually for the participation in a single project rather than a continuing business. Unincorporated joint ventures may be found to be partnerships: (NSW) Partnership Act 1892 s 1; United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1; 60 ALR 741. A joint venture may be carried out by way of a partnership, company, trust, agency, joint ownership, or other arrangement. It may include an activity carried on by a body corporate which was formed to carry on the activity by means of joint control or ownership of shares in the body corporate: (CTH) Trade Practices Act 1974 s 4J(a). Whether there is a fiduciary relationship between joint venturers is dependant upon the form which the joint venture takes and the content of the obligations of the parties: United Dominions Corp Ltd v Brian Pty Ltd , above. A fiduciary relationship can arise before the precise terms of any agreement have been settled.
60 In United Dominions Corporation Limited v Brian Proprietary Limited and Others (1985) 157 CLR 1, Dawson J adverted to a distinction in Australian law between a partnership and a joint venture. His Honour said (at 15-16):
Perhaps in this country, the important distinction between a partnership and a joint venture is, for practical purposes, the distinction between an association of persons who engage in a common undertaking for profit and an association of those who do so in order to generate a product to be shared among the participants. Enterprises of the latter kind are common enough in the exploration for and exploitation of mineral resources and the feature which is most likely to distinguish them from partnerships is the sharing of product rather than profit. It is, however, unnecessary to pursue that matter here.
61 The definitions suggest an association of persons for the purposes of a particular undertaking or endeavour with a view to mutual profit or with a view to generating a product (such as a mineral resource) which is to be shared among the members of the joint venture. It is difficult to reconcile these definitions with the nature of the relationship between the applicant and the respondent in these proceedings. Under the agreement, the applicant was entitled to 40 per cent of his daily takings. The respondent retained the remaining 60 per cent. The applicant was a taxi driver. The respondent's operations were somewhat more extensive than the provision of licensed taxis, which it owned, to the drivers. It operated other vehicles as well as a retail motor workshop. The method of payment to the driver under the bailment has little in common with a mutual sharing of profits generated by the respondent's operations. The respondent's business did not generate any particular product. The finding in De Luxe Red and Yellow Cabs that the drivers were bailees in a joint venture distinguished the relationship in that case between the taxi operator and the drivers, from that of employment. A finding to that effect in the present proceedings (that is that the relationship was not one of employment) would not, of itself, preclude a finding that the impugned agreement was one whereby work was performed by the applicant in any industry.
62 The respondent also relied on the judgment of Yim v Industrial Relations Commission of NSW (2007) 162 IR 62 in support of this issue. The case is distinguishable on a number of bases. Under consideration in Yim was an agreement between a proprietor of a business and two fellow investors. No remuneration was payable under the contract until the business (which involved importing ginseng) became self-supporting. All profits earned from the import and sale of ginseng products were to be shared equally between the business proprietor and the other two investors. Spigelman CJ (with whom Mason P and Handley AJA agreed) found that the agreement was in the nature of a joint venture and did not deal with the performance of work (except insofar as it made reference to a "wage" which was not payable until the ginseng business was self-supporting): (at [58], [59]).
63 Reliance was also sought to be placed by the respondent on Angyal and Others v Industrial Relations Commission of New South Wales & Others (2005) 145 IR 56 for the proposition that the applicant did not perform work for the respondent at all. Again, this case is distinguishable from the present circumstances. It concerned a set of arrangements between a group of barristers for a company to be incorporated which would take a lease of premises which would then be licensed or sub-leased to the shareholders as chambers in which they could practise their profession. One of the arguments contending for jurisdiction under s 106 of the Act was that the applicant-barrister was performing work in an industry under one or more of the arrangements. The arrangements were documented in the Articles of Association, a shareholders agreement and a user argument. It was found by Handley JA (with whom Hodgson JA and McClellan AJA agreed) that the arrangements between the barristers and the company did not constitute contracts which led directly to the performance of work. Adopting the formulation of Jacobs JA in Ex parte V.G. Haulage Services Pty Ltd and Another; Re The Industrial Commission of New South Wales and Another [1972] 2 NSWLR 81 at 88, Handley JA found that the arrangements in the commercial sense involved the provision of goods and services with a consequent performance of work in an industry.
64 I turn now to consider the bailment agreement between the applicant and the respondent.
65 Clause 1 refers to the intention of the parties that the bailee hire the taxi cab and not acquire any proprietary interest in the vehicle. Clause 2 provides that the bailor "in his sole and absolute discretion" may make available to the bailee "from time to time" a duly registered and licensed taxi cab on the terms and conditions of the bailment agreement. Clause 3 provided for the method of payment. Under that clause, the bailee was entitled to 40 per cent of chargeable fares. Clauses 5 and 6 required the bailee to complete daily work sheets and running sheets at the end of each shift. The driver was required to maintain the taxi cars to a high level of presentation and to maintain a superior standard of customer service (Clause 11). Under Clause 12, the bailee agreed, upon the conclusion of any hiring, to proceed to the nearest designated taxi rank and stand for hire, "unless previously booked or hired or otherwise directed by the bailor or nominated representative". Under Clause 24, if the bailee failed to report for duty the respondent was relieved of its obligation to keep a taxi-cab available for the bailee for his or her rostered shift. If a bailee failed to attend "to take a taxi cab on bailment" for 24 hours then the bailee was taken to have abandoned the agreement with the consequence that the bailor could terminate the agreement without notice.
66 Clause 30 stated that there was no guarantee of work for the period covered by the agreement. The clause also required the bailor "as far as possible" to provide one week's notice of "work rosters". The drivers were to be allocated work on a daily basis "as required by the bailor" under the clause.
67 These provisions, when considered together, suggest that the applicant as a taxi driver constituted part of the respondent's workforce. They suggest that the applicant performed work for the respondent under the agreement and was remunerated for that work under the method of payment prescribed under the agreement. The terms and conditions of the agreement indicate that the applicant was not a free and independent agent plying a taxi for hire and making independent decisions about when and where the work would be performed. The applicant's work was subject to a roster system which was prepared by the respondent seven days in advance. It was not entirely accurate to suggest, as the respondent did, that the applicant determined his own hours, had complete control over how he worked and full discretion as to whether to accept a job. The conversation, as deposed to by Mr Turner, between the applicant and Mr Turner on 17 February 2006 dispels any notion that the applicant was free to choose what hours he worked. According to Mr Turner, he told the applicant, "I am going to have you start three shifts at 7am, rather than 3am or 5am, "choose a day where you will not come in at 5am".
68 The evidence provides numerous examples suggestive of a system between the applicant and the respondent whereby the applicant was subject to the direction of the respondent. The applicant was directed to travel to Figtree Private Hospital to collect a patient on 17 February 2006. On 27 January 2006, the applicant received instructions from Mr Turner to drive to Moss Vale railway station and remain on "stand-by" for a period of time. There was no suggestion on the evidence that the applicant understood he had a discretion as to whether or not he would take either or both jobs. While the applicant was at work he worked in accordance with the roster system prepared by the respondent, although according to Mr Stewart a driver could stipulate the hours in which they chose to perform the work.
69 Nor was there any evidence of a formal leasing arrangement between the parties, a further factor relied upon by the respondent. The agreement contains no reference to a lease or leasing arrangement. The agreement was not in the nature of a joint venture involving a sharing of the profits, for the reasons earlier set out in this judgment.
70 I find therefore that the applicant performed work for the respondent under the bailment agreement.
Resignation or termination?
71 A further issue ventilated during the proceedings was whether the applicant resigned on 17 February 2006 following his conversations with Mr Turner and Mr Stewart or his engagement was terminated at some later stage by the respondent.
72 The respondent, in contending for the former, relied upon Mr Stewart's version of events which it was said was corroborated by Rebecca Anne Bradley, an accountant who was employed by the respondent on 17 February.
73 Mr Stewart's earliest account of the events of the day appears in a statement he made on 10 March 2006 which he provided to QBE, the workers compensation insurers. At the stage Mr Stewart provided his statement, the s 106 proceedings initiated by the applicant by way of a summons for relief had not been commenced. The respondent relied on this detail as further corroboration of Mr Stewart's account.
74 The account set out in Mr Stewart's statement of 10 March 2006 has been earlier set out in this judgment. According to Mr Stewart, the applicant entered his office about 11am, threw his pay onto the desk and informed Mr Stewart, "That's it, I am going", and, "I've had it". The reasons forthcoming from the applicant were that Mr Turner intended to prevent the applicant from working early morning starts. Mr Stewart said he told the applicant, "If you want to go, go". He said after saying this the applicant walked out.
75 It is of some significance to the resolution of this issue that nowhere in the statement did Mr Stewart indicate a view that the applicant had resigned as a result of these events. Rather, Mr Stewart said in the statement that he rang the applicant some two to three weeks after 17 February 2006 to ask him how he was and, "what was happening".
76 According to Ms Bradley at about 11am on 17 February 2006 she overhead the applicant shouting from the direction of Mr Stewart's office, "I have had enough, I'm out of here". She said she asked Mr Stewart about the incident shortly after and he told her, "Brian has just resigned".
77 Taking this evidence at its highest it suggests that Mr Stewart at least was under the impression that the applicant had resigned on 17 February 2006. This was not the applicant's intention however. His version of events has been earlier set out and need not be repeated. After leaving the respondent's premises he visited his local doctor and was placed on sick leave. He forwarded the WorkCover certificate to the respondent which was received by it sometime in the afternoon of 17 February 2006.
78 Following the exchange of 17 February 2006, a series of letters was sent by the respondent to the applicant. On 3 April 2006, the respondent wrote to the applicant to inform him that it had become aware that he had overcharged RailCorp on 27 January 2006. A refund of $61.60 was demanded by the respondent. According to the evidence of Mr Stewart, the respondent first became aware of this matter when Mr Stewart saw the television programme in which the allegation was made. He said he immediately instituted a search of the respondent's records and ascertained from the applicant's daily running sheet that the applicant had charged for three hours on "stand-by" while during the same period taking three jobs and charging for those jobs. Moreover, the records indicated that the applicant had been fully remunerated for the three hours on "stand-by", as well as for the three jobs. The point of this material for present purposes is that the respondent said it became aware of it at some undisclosed time after 27 February 2006. Notwithstanding this sequence of events, on 29 May 2006, in a further letter written to the applicant, the respondent wrote:
"Actions by you with regard to overcharging RailCorp, together with malicious activity towards this company, leaves us with no alternative but not to consider the further leasing of taxis to you."
79 In my view, this suggests that the respondent did not consider that the applicant had resigned on 17 February 2006. Rather, the discovery that the applicant had overcharged RailCorp on 27 January 2006 (a matter which came to light after 17 February 2006), is what prompted the respondent to terminate the applicant's engagement. Such a step would hardly seem necessary if the respondent was of the view at that time, or at some earlier point in time, that the applicant had resigned. An alternative construction may be however that the respondent considered that the applicant had in fact resigned, but because of the discovery, it intended to convey to the applicant that it would not re-engage his services.
80 Accepting this alternative construction, and adopting the respondent's version of events on 17 February 2006, for the purposes of the argument, the question of whether the applicant did in fact resign remains to be determined. In order to assist in the resolution of this issue, resort may be had to some relevant authorities.
81 First, there was no unambiguous statement of resignation on the evidence. The words "That's it, I am going" and "I've had it" do not, of themselves, provide evidence of an unambiguous intention to resign. The applicant's act in throwing down his pay on Mr Stewart's desk does not give rise to a contrary indication. The applicant was required to hand over to the respondent 60 per cent of his daily takings. At the same time, the applicant, according to Mr Stewart, also threw the taxi keys onto the desk. This action cannot be accorded any particular significance in relation to whether the applicant resigned. The operative date, being 17 February 2006, was a Friday. The applicant said it was his usual practice to leave the keys at the respondent's office on Friday afternoon so that another driver could use the taxi cab on Friday nights and Saturday mornings.
82 In Sovereign House Security Services Ltd v Savage [1989] IRLR 115 (at [7]), the following observations were made on the issue of when resignation may be said to have occurred:
[…] generally speaking, where unambiguous words of resignation are used by an employee to the employer direct or by an intermediary, and are so understood by the employer, the proper conclusion of fact is that the employee has in truth resigned. In my view tribunals should not be astute to find otherwise. However, in some cases there may be something in the context of the exchange between the employer and the employee or, in the circumstances of the employee him or herself, to entitle the Tribunal of fact to conclude that notwithstanding the appearances there was no real resignation despite what it might appear to be at first sight.
83 In Cherry v Allied Express Transport (1997) 73 IR 305, Peterson J found that a heated exchange between an employee and a representative of the employer during which the employee told the representative he could "stick it" did not amount to a resignation or notice of termination of the relevant contract on the part of the employer. During the course of reasons, Peterson J referred to comments of Wood J in Kwik-Fit (G.B.) Ltd v Lineham [1992] ICR 183 at 188 where Wood J referred to a number of factors relevant to the assessment of whether or not a person's words or actions may be said to constitute a resignation:
If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure ("being jostled into a decision") and indeed the intellectual make-up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] IRLR 313. These we refer to as "special circumstances". Where "special circumstances" arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the "special circumstances" the intention to resign was not the correct interpretation when the facts are judged objectively.
84 In the present circumstances, the applicant, on 17 February 2006, was clearly upset at the prospect of his early morning shift work being cut off. The words attributed to him by Mr Stewart were therefore spoken at a time when the applicant was distressed. He was diagnosed later that day as suffering from depression and stress. The applicant provided a medical certificate which certified him as unfit for work for two weeks to the respondent that same afternoon. His action in providing the certificate does not suggest that the applicant had intended to resign.
85 The applicant continued to provide medical certificates to the respondent. During this same period the respondent wrote to the applicant on a number of occasions, yet in none of that correspondence did the respondent indicate that in its view the applicant had resigned. It was not until the letter of 29 May 2006 that this view was clearly exposed by the respondent, when it informed the applicant that, "you terminated all future work with this company on 17 February 2006". The actions of the respondent up until the letter of 29 May 2006 were therefore inconsistent with the contention that the applicant resigned on 17 February 2006. There can be little doubt based on the applicant's actions in providing a number of medical certificates to the respondent from 17 February 2006 that he did not consider he had resigned on that day.
86 These matters in combination compel the conclusion that the applicant did not resign on 17 February 2006. Equally, they facilitate the conclusion that the respondent terminated the applicant's engagement by letter of 29 May 2006.