Mullany v Active Concrete Wilcox CJ 3/5/95, NI 0747R of 1994

to his normal practice, thus allowing sufficient room for traffic on the other side of the pallet. The moulding boxes were of various sizes. I am satisfied by the evidence of Mr Mauro Caputi (the applicant's supervisor) together with the evidence of Mr Neville Self (another plate moulder) that the applicant was using a "K" sized box on this day. The dimensions of this box are 600 mm x 1350 mm; its size allows a plate moulder to reach over from one side of the box to spread out the sand with his/her hands. As such it is not normally necessary for the plate moulder to go to the other side of the box. If in fact it was necessary for the applicant to work from the other side of the box then he could walk around the three clear sides of the box. Depending on where the applicant was standing and where he wanted to work it is possible that he may have had to walk several extra steps because the pallet was placed next to the box, although I am satisfied that this possibility was more imagined than real. Accordingly, I find that on the day in question it was not necessary for the applicant to have an uninterrupted path right around the moulding box, and there was no safety issue involved in the placing of the frames next to the box. After the pallet of frames had been placed next to the moulding box the applicant's supervisor, Mr Caputi, asked him why he wasn't working. The applicant told Mr Caputi that the frames were too close to the box but Mr Caputi told him that there was no problem with their positioning. The applicant complained that he would have to go around the box but Mr Caputi said that he didn't because it was a narrow box. Mr Caputi also said that he would not move the pallet. The applicant then said "I'll resign and go home if you don't remove the frames". Mr Caputi replied that there was no safety issue and no problem. The applicant repeated that he'd resign and go home if the frames weren't moved. Mr Caputi replied "I'm sorry, I'll accept your resignation". He then said he'd take the applicant across to see Mr Pat Lawrence (the respondent's personnel manager) because he handled all the dismissals. Some time was spent searching for Mr Lawrence but he could not be located. Mr Caputi then said to the applicant to come in tomorrow morning and the whole thing would be sorted out. Mr Caputi and the applicant returned to the applicant's work area in order to measure the distance between the pallet and the moulding box. In fact the applicant tendered in evidence a stick which he had broken off to equal this distance so as there could be no argument about the distance. As noted earlier this distance was 300 mm. The applicant went home at about 10.30 am. Shortly before 1.00 pm a letter was delivered by courier to the applicant. It read (omitting formal parts): "On Tuesday 16 May 1995 at about 1030 you verbally informed your Supervisor Mr Caputi that you give him notice to terminate your employment with this company. You walked off the job and left the company premises, and the company accepts your resignation and abandonment of your employment as of 1030 Tuesday 16 May 1995. All monies owing to you will be deposited into your bank account and a separation certificate will be forwarded to you in the mail. Yours faithfully Patrick Lawrence (JP) Human Resources Officer" The applicant sought assistance in reading this letter (as his ability to read and speak English is limited). When he returned home there was a message from Mr Lawrence on his telephone answering machine. The applicant rang Mr Lawrence and said that he had not resigned. Mr Lawrence replied that his information was that he had resigned and arrangements were then made for the applicant to collect tools and outstanding pay. In setting out my findings on the facts, I have largely accepted the evidence of the respondent's witnesses. However, I am still not convinced that the applicant resigned. Mr Caputi had said to the applicant that the pallet of steel frames would not be moved. The applicant had then said that he would resign and go home if the frames were not removed. It was not an unconditional statement. In fact, if Mr Caputi had repeated that he would not move the frames after the applicant's ultimatum then it would have been up to the applicant to either resign in fact or to back down. There is a possibility that he was bluffing or that he may have changed his mind. If the applicant did not resign then he should have continued working. Failure to do so would have opened the possibility of some sort of disciplinary action against him. But events did not get that far. Mr Caputi said that they should go and see Mr Lawrence (and although he used the term "dismissals" in reference to the reason for seeing Mr Lawrence, I think it was merely an inaccurate use of language). Mr Caputi thought the applicant had resigned and later conveyed this to Mr Lawrence. However, I am convinced that the applicant did not think he had resigned. Support for this view is to be found from the fact that after Mr Caputi and the applicant had not been able to locate Mr Lawrence, they measured the distance between the frames and the moulding box. This was at the applicant's insistence and is a strange action if he had thought that he had already resigned. Secondly, the applicant's first statement in his telephone conversation with Mr Lawrence later in the afternoon is that he did not resign. I have already noted that the applicant's ability to speak English is limited. The same can be said of Mr Caputi. No criticism is intended of either man, but simply a recognition that English is not their first language. Given these circumstances, and the applicant's denial over the phone of having resigned, it is surprising that Mr Lawrence did not investigate the matter further. He seems to have taken the position that he should not question the word of a line manager (Mr Caputi). Where there is some ambiguity about whether or not an employee has resigned it is incumbent upon the employer to investigate. In the present case there was ambiguity as to whether or not the applicant had resigned. The employer should have conducted further investigations. I am of the view that he had not resigned but that his employment was terminated at the initiative of the employer. This termination occurred at the very latest when the applicant received the letter which was hand delivered to him. Valid Reason for Termination The respondent argued that even if I found that it had terminated the applicant's employment that I should nevertheless not find his termination unlawful. It argued that procedural fairness had been accorded to the applicant and that past warnings given to him could be taken into account. This argument is fundamentally flawed. The employer's case was that it did not terminate the applicant's employment. In such circumstances it is difficult to accept that the applicant's employment was terminated for a valid reason when the employer did not consider whether or not it had a reason to terminate the applicant's employment. I find that the applicant's employment was not terminated for a valid reason. Remedy The applicant seeks reinstatement. The respondent argued that reinstatement is impracticable because of the applicant's poor work history and because there is no longer a job available. The applicant's previous work history seems to me to have little relevance in the present case. Given my finding that there was no valid reason for the termination it is difficult to see how previous matters are relevant. The respondent led evidence to the effect that the applicant's job was no longer available. This evidence was unsatisfactory in that it did not really explain why the job was unavailable. Some reference was made to a restructuring which the company was undergoing, but this evidence was not related directly to the applicant's position. The respondent employs some 180 people. About 28 of these are plate moulders, although half of this group is multi-skilled and so can perform a variety of tasks. Given this, it seems to me that reinstatement is not impracticable. The multi-skilling of employees should allow a position as plate moulder to be found for the applicant. Furthermore, it is not clear to me as to whether or not plate moulders have been employed by the respondent since the applicant's employment was terminated. On the evidence that remains a possibility (the evidence being that a plate moulder was employed "4-5 months" ago). If that were the case then it is not appropriate for the respondent to come along to court and say that it no longer has a job available. Given that the respondent must demonstrate that reinstatement is impracticable, I am unable to be satisfied on this point. Accordingly, I propose to order reinstatement.