In the matter of a claim for relief relating to the dismissal of Kebin Wang by Hair, Health and Beauty Professional [2003] NSWIRComm 1050 (3 October 2003)

IN THE MATTER a claim for relief relating to the dismissal of Kebin Wang by Hair, Health and Beauty Professional.

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Pursuant to the provisions of Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, Mr Kebin Wang has lodged an application concerning the termination of his services in data input with Renito Pty Limited, trading as Hair, Health and Beauty Professionals, on Friday, 21 February, 2003. At that time Mr Wang had been employed for two years with Renito. Mr Wang suggests that he was dismissed because of a personal conflict at his place of work. Renito argues that Mr Wang actually resigned. The matter was allocated to me and it was the subject of a preliminary hearing before me on Thursday, 24 April, 2003 and a mention on Monday, 19 May, 2003. Conciliation failed to resolve the matter. I programmed it for arbitration in a hearing on Friday, 19 September, 2003.

In the hearing Mr Wang represented himself, giving evidence under oath. Mr Patch represented Renito in the hearing. He called two witnesses: Mr Lewis Simmons, the managing director of Renito, and Mr Michael Curran, its financial controller. Mr Wang claimed some difficulties in communicating in English and his evidence was given with the aid of a Mandarin interpreter. Mr Wang's employment with Renito and his previous employment environments involved communication in English. That throws some doubts on the legitimacy of his claim that he needed the assistance of an interpreter to give his evidence - and, in my opinion, would ordinarily be a matter going to determine his credibility as a witness. However, I understand that Mr Wang is more comfortable communicating through his native tongue and I accept that it is his right to seek the assistance of an interpreter in giving his evidence.

In his Part 6 application Mr Wang has sought his reinstatement or, alternatively, monetary compensation in lieu thereof and during the hearing he reinforced his wish to resume working for Renito. But I formed the impression that he recognised the impracticability of such a course of action. Reinstatement under S.89(1) is the principal remedy for an unfairly dismissed employee and monetary compensation under S.89(5) is available only where the reinstatement is impracticable [Little v. Commissioner of Police (No.2) (2002) 112 IR 212 at p.243]. But the level of conflict on Mr Wang's part surrounding the severance of his services would make totally unrealistic any restoration of the employment relationship between Mr Wang and Renito and, in particular, Mr Curran. Mr Wang's Part 6 application would inevitably be confined to monetary compensation alone.

But the essential issue before me is not whether Mr Wang was dismissed unfairly but, in fact, whether he was dismissed at all. If Mr Wang resigned from Renito his claim would be beyond jurisdiction under Part 6 which, as S.84(1) confirms, applies only to cases where:

"...an employer dismisses an employee and the employee claims the dismissal is harsh, unreasonable or unjust..."

Mr Wang is acting under a misconception that, to be effective, a resignation must be in writing. It is, of course, standard practice for an employee to commit his resignation to writing but there is no compulsion that he do so. The fact of a resignation is not dependent upon writing but upon the circumstances surrounding the termination of the employment. Mr Wang has also pointed out that his purported resignation took effect immediately and did not involve any period of notice. It is customary for contracts of employment and relevant State awards to provide that a resignation will involve some period of notice by the employee to the employer - often one week - but an employer may waive that obligation imposed on an employee.

Mr Wang commenced employment with Renito on Wednesday, 11 October, 2000. According to Mr Curran, Mr Wang's punctuality at work and his frequent lengthy personal telephone calls at work arose as a matter of concern. Mr Wang's ordinary working hours each week were from 8.30am to 5.30pm. Twice a week Mr Wang was permitted to leave work at 5.00pm to attend a computer related technical course. But Mr Curran became suspicious that Mr Wang was actually attending that course. There had also been some dispute over Mr Wang's hours of work between Mr Wang and Mr Curran. Mr Wang has apparently been seeking greater flexibility in his working hours - what he described in his evidence as a "compromise" - and this was being refused by Mr Curran. There was also an unresolved argument over whether or not Mr Wang was being paid the appropriate grade under the Clerical and Administrative Employees (State) Award.

Mr Wang has informed me that he is presently pursuing a claim against Renito over the overtime he allegedly worked and his appropriate salary grade. Those claims are rejected by Renito. Mr Wang understands that those issues are not matters I may effectively address in this hearing and the legitimacy of his claims is a matter which he must test elsewhere. Their importance in these Part 6 proceedings is only because the serious argument over them between Mr Wang and Mr Curran appears to be the reason that Mr Wang's employment with Renito came to an abrupt end.

On Thursday, 20 February, 2002 Mr Wang arrived into the office at 8.55am. Mr Curran asked Mr Wang for an explanation for his lateness and Mr Wang informed him that he had experienced problems with traffic. Mr Curran claimed that Mr Wang started to raise his voice and complain that there should be more flexibility in working hours, pointing out that he was not receiving overtime for the extra work that he was performing outside ordinary hours. Mr Curran also sought some proof of his attendance at the technical course. Mr Curran prepared a warning letter over Mr Wang's punctuality when starting work and the lengthy private telephone calls he was making at work. The warning letter concluded as follows:

"...In general you appear to have developed a complete disregard towards any type of authority within this organisation. This has created a situation where others are reluctant to discuss day to day matters with you due to the consistently volatile and aggressive nature of your responses. You have become intolerably resistant to any form of enquiry by other staff members, resulting in delays in resolving critical matters related to their own work. Should this lack of co-operation between you and other staff members continue a further warning will be issued..."

Mr Wang refused to sign that letter in the place provided. He indicated in his evidence in this hearing that he regarded the warning letter as a "trap" to lead to his dismissal.

On Friday, 21 February, 2003 Mr Wang arrived on time but Mr Curran asked him if it was his intention to sign the warning letter. Mr Wang responded that he would not do so until he had spoken to the Department of Industrial Relations concerning his wages. Mr Curran claimed that Mr Wang began to shout and point his finger in a very aggressive manner, telling Mr Curran that he was "...a very bad boss..." and that Renito was "...very bad...". Mr Wang does not deny that he was angry and had raised his voice. He asserted that Mr Curran refused to discuss the issues he was disputing with him and to reach a suitable "compromise" position. Mr Wang informed Mr Curran that he was intending to take a "sickie" on Monday, 24 February, 2003 to attend either "court" or the DIR - there is some uncertainty on what Mr Wang was intending since, according to Mr Curran, throughout the day he spoke of both "court" and the DIR and used the word "court" and the abbreviation interchangeably. Mr Curran pointed out to Mr Wang that sick leave was for personal reasons and, although he would permit him to be absent from work on Monday, 24 February, 2003, he would not be paid for it.

Mr Curran prepared a second and final warning letter over Mr Wang's "...aggressive and threatening response..." to his discussions with him. He went on to comment on the technical course which Mr Wang purportedly was attending and to state that:

"...Until you produce evidence of your enrolment for the calendar year 2003 your minimum work hours will immediately revert to the standard minimum of 8.30am to 5.30pm Monday to Friday with one hour for lunch break..."

"...As this is the second and final written warning not only do I require you to revert to our standard minimum hours but I expect to see significant improvement in your attitude. Should you refuse to comply with the above terms your employment will be terminated..."

At approximately 4.00pm Mr Curran handed Mr Wang the second warning letter and returned to his office. Mr Wang declined to sign the second warning letter. There is some dispute over what next occurred.

There is little doubt that at that point Mr Wang's continued employment with Renito was under considerable doubt and Mr Wang claimed that he had, in fact, been dismissed by Mr Curran at that time. It is Mr Wang's assertion that Mr Curran had informed him that if he decided to take time off work on Monday, 24 February, 2003 he would take it as his resignation. Mr Wang admitted that he was upset. He went back to his desk and was sitting at it working. Mr Curran later approached him and told him to leave or he would call the local police and he took the keys that Mr Curran held from his desk. Mr Wang took his personal possessions and left the premises. Mr Curran watched Mr Wang leave the premises.

Mr Wang claimed that he had not resigned and that was why he was sitting at his desk and performing his work. He only left because Mr Curran had threatened to bring in the police to escort him from the premises. It was raining heavily at that time. Mr Wang has emphasised that fact to support his claim that he did not resign because he claimed that he would not have intended to take his personal possessions out in the rain at that particular time.

Mr Curran's evidence goes into considerably more detail concerning the argument he was having with Mr Wang on Friday, 21 February, 2003. Mr Curran claimed that shortly after he handed Mr Wang the second warning letter, Mr Wang entered his office and stated that he was going to "court" on Monday, 24 February, 2003 and he would "...not be coming back to the company after today...". Mr Curran, speaking slowly and very precisely, asked Mr Wang:

And, according to Mr Curran, Mr Wang replied yes. Mr Curran asked Mr Wang again if he was resigning and he claimed that Mr Wang confirmed:

"Yes, I will now take you to court and sue you. I will not come back."

Mr Wang continued to shout at Mr Curran who took him into the foyer area and away from an office meeting that was taking place at that time. Mr Curran informed him that he wanted him to leave immediately and he returned to the main office area.

Mr Wang entered Mr Simmons' office - "stormed" in, according to Mr Simmons, who recalled Mr Wang saying:

Mr Wang told Mr Simmons that he did not know how to run a business and that he was going to take Renito to court for his overtime.

At that time Mr Curran again instructed Mr Wang to leave the premises immediately and indicated that if he did not do so he would call the local police. Mr Wang continued to shout and, standing close to his face, swear at him. Finally, Mr Wang agreed to leave and over the following thirty minutes Mr Curran supervised his packing up of his personal possessions to ensure that he did not take any company property.

From the evidence before me in this hearing I conclude that Mr Wang did resign his employment with Renito. I prefer the evidence of Mr Curran and Mr Simmons not only because they impressed me as the more credible witnesses in this hearing but because I believe that Mr Wang had worked himself up into such a state of anger on Friday, 21 February, 2003 that he could not properly evaluate what was actually taking place. I do accept that Mr Wang acted rashly in the heat of the moment and in a state of anger because of his frustration over his conversation with Mr Curran. He may not have really meant to have resigned at all but it appears to me that he was giving Mr Curran and Mr Simmons an ultimatum that, unless they accepted his position on the range of issues over which he was arguing with Mr Curran, he would cease employment with them. Employees who behave aggressively and tender their resignation in the spur of the moment like that should not be too surprised if an employer takes them up on it.

There are, of course, occasions where a purported resignation may, in fact, be a constructive dismissal and therefore within jurisdiction under Part 6, ie where the resignation was forced upon the employee by the employer in some manner [Allison v. Bega Valley Council (1995) 63 IR 68]. But I do not consider that what occurred on Friday, 21 February, 2003 can be effectively classed as a constructive dismissal. Mr Wang may have only left the premises when Mr Curran threatened to call in the local police but by that time I conclude that Mr Wang had already tendered his resignation to both Mr Curran and to Mr Simmons. It was Mr Wang who brought his employment to an end, not Renito. Although Mr Curran had progressed Mr Wang to a second warning letter and the prospect of his dismissal was no doubt imminent if Mr Wang did not comply with the requirements contained in those warning letters, it was Mr Wang who took the initiative and advanced the prospect of his resignation.

For that reason, I see no grounds for my intervention in this hearing in support of Mr Wang. I dismiss his Part 6 application.