WESTERN AUSTRALIAN INDUSTRIAL MAGISTRATES COURT

CITATION : 2014 WAIRC 00210

DELIVERED : Thursday, 20 March 2014

FILE NO. : M 115 OF 2013

CLAIMANT

AND

DOF Subsea Australia Pty Ltd

RESPONDENT

Catchwords : Claim in the amount of $8938.77 for three weeks’ gross pay allegedly owed; election made to use small claims procedure as provided by section 548 of the Fair Work Act 2009; alleged failure to comply with section 117 of the Fair Work Act 2009; employer’s alleged termination of employment during the period of employee’s notice of termination; whether the contract of employment was consensually varied to enable the taking of leave during the period of notice; whether annual leave was taken during the period of notice.

Legislation : Fair Work Act 2009

Case(s) referred to

in Judgment  : Currie v Dempsey and Others (1967) 69 SR (NSW) 116

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Silcar Pty Ltd [2013] FWC 856

Result : Claim is dismissed

Representation :

Claimant : Claimant appeared in person

Respondent : Ms E Hardwick (In House Counsel) appeared for the Respondent

REASONS FOR DECISION

The Claim

1         Mr Richard Jouault claims that his former employer DOF Subsea Australia Pty Ltd (DOF Subsea) terminated his employment during the currency of the notice of termination of employment he had given it.  He says he is owed three weeks’ gross pay in the sum of $8938.77 for the period that he was not permitted to work.  Mr Jouault contends that in not paying him his entitlement, DOF Subsea has failed to comply with section 117 of the Fair Work Act 2009 (the FW Act).  In bringing this Claim Mr Jouault has elected to use the Small Claims procedure as provided by section 548 of the FW Act.

Overview

2         From 6 June 2008 until 4 January 2013 DOF Subsea employed Mr Jouault as a Senior Project Engineer. 

3         On 7 December 2012 Mr Jouault resigned from his employment by giving DOF Subsea four weeks’ notice of the termination of his employment.  He informed DOF Subsea that his last day of employment would be 4 January 2013.

4         Prior to submitting his letter of resignation Mr Jouault had applied for, and had been granted permission to take annual leave from 17 December 2012 to 4 January 2013 (inclusive).  Mr Jouault says that he withdrew his application for annual leave in order to work out the entire period of his notice of termination.   DOF Subsea says that Mr Jouault did not withdraw his leave application, but rather insisted on taking his annual leave during the period of his notice.

5         It is common ground that Mr Jouault ceased working for DOF Subsea on 14 December 2012.  Mr Jouault alleges that DOF Subsea elected to pay him in lieu of notice for that part of the notice period commencing 17 December 2012 and concluding 4 January 2013.  DOF Subsea on the other hand contends that, with its consent, Mr Jouault took annual leave from 17 December 2012 until 4 January 2013 (inclusive).

6         Mr Jouault alleges that he is owed three weeks’ pay in lieu of notice whilst DOF Subsea contends that Mr Jouault has been paid all his entitlements, including those for annual leave taken between 17 December 2012 and 4 January 2013.

Issue

7         The pivotal issue to be determined is whether Mr Jouault withdrew his application for leave and agreed to work his notice period.

Determination

8         It is not in dispute that the parties were bound by the terms of a written contract of employment which provided at Clause 12 - Termination of your Employment:

“Following your probationary period of employment, your employment may be terminated by either party giving to the other, one (1) calendar months’ notice in writing unless mutually agreed otherwise.  The Company may elect to pay in lieu for all or part of the notice period.  A period of notice shall not include any period of leave or absence from work by the Employee.”

9         I observe that the provision requires the giving of one months’ notice rather than the four weeks’ notice as was given by Mr Jouault. DOF Subsea has, however, not taken issue with that.  Further, the provisions of Clause 12 of the contract of employment do not enable the employee’s absence or the taking of leave during the period of notice.  Consequently, despite having given notice of his intention to take annual leave and that having been approved, the reality was that Mr Jouault could not take such leave during the period of his notice.  The taking of leave during that period could only occur with the consent of his employer and at the discretion of his employer.

Onus of Proof

10      Mr Jouault has the burden of proving the essential elements of his cause of action. Once that has occurred the burden shifts to DOF Subsea because its defence is not a denial of an essential ingredient in the cause of action but rather one which, if established, will constitute a good defence, that is an “avoidance” of the Claim which, prima facie, Mr Jouault has (see Currie v Dempsey and Others (1967) 69 SR (NSW) 116 at page 125).

11      DOF Subsea is avoiding the Claim by alleging that there was an agreement that Mr Jouault would take his annual leave during the notice period.  The onus is on DOF Subsea to establish that, on the balance of probabilities.  Whether there was such an agreement is a question of fact to be determined from the available evidence.

Evidence

Richard Jouault and Claire Forrest

12      On Friday, 7 December 2012 Mr Jouault sent to his managers, Mr Darren O’Leary and Mr Peter Rush an email which attached his letter of resignation.  Mr Jouault says the same morning his manager Darren O’Leary and others met with him in an unsuccessful attempt to persuade him to withdraw his resignation.  He says that on the same afternoon he was contacted by Ms Claire Forrest, DOF Subsea’s Human Resources Manager, who asked him to go to her office which he did.  She too attempted to dissuade him from resigning. Further, she attempted to ascertain the name of his new employer.  She was unsuccessful on both counts.  Mr Jouault alleges that after having realised that he would not be withdrawing his resignation Ms Forrest became threatening and intimidating.  She told him that he would be required to work out the whole notice period, exclusive of holidays, and that if he wanted to take annual leave he would need to extend his termination date.  Ms Forrest denies that meeting and the alleged conversation. 

13      Mr Jouault alleges that the following Monday (10 December 2012), he attended Ms Forrest’s office and informed her that he was withdrawing his annual leave application and that he would work his full notice period. His termination date would remain 4 January 2013. He told her that he would complete all of his deliverables in relation to the tender he was working on and would hand over to his replacement.  Ms Forrest denies that meeting and conversation.

14      Mr Jouault alleges that on Tuesday, 11 December 2012 he received a telephone call from Ms Forrest who said words to the effect:

“Senior management have decided that your last day will be Friday, 14 December 2012.  Do you have a problem with this?” 

15      He assumed that his employer was exercising its rights by electing to pay him in lieu for three weeks of his notice period. On that basis he told Ms Forrest that he did not take issue with the decision and agreed to cease work on 14 December 2012. Ms Forrest does not recall that conversation.

16      Ms Forrest’s evidence is that she only became aware of Mr Jouault’s resignation on 12 December 2012.  She said that she received an email from Mr Jouault’s manager indicating that Mr Jouault would be leaving on 14 December 2012.  She accordingly, late on the afternoon of 12 December 2012, unsuccessfully attempted to contact Mr Jouault and left a telephone message at his workstation.  She was intending to clarify with him whether his employment would cease on 14 December 2012 or alternatively on 4 January 2013. On the morning of Thursday, 13 December 2012, Mr Jouault sent an email to Ms Forrest in which he said:

“Apologies for missing your call yesterday evening.  After discussions with Darren and Martin I can confirm that tomorrow Friday the 14th of December will be my last day in the office.  I will be on leave until the 4th January 2013 which will conclude my notice period.”

17      Ms Forrest testified that later the same day (13 December 2012), Mr Jouault attended her office during which they had a discussion with respect to his termination.  During the discussion the issue of whether or not he was entitled to take annual leave during the notice period was addressed.  She says that Mr Jouault became somewhat heated in maintaining that he was. Ms Forrest’s evidence is that Mr Jouault was insistent on taking that annual leave.  She said that she could not recall any conversation or correspondence which indicated that he had withdrawn his leave application. Consequently, advice was sought from the Chamber of Commerce and Industry of Western Australia (Inc.) to ascertain whether there was anything prohibiting an employee accessing leave during a notice period. 

18      Mr Jouault completed his last day in the office on 14 December 2012.  On 17 December 2012 he received his final pay and pay advice (Exhibit 1) from DOF Subsea.  There were various errors in calculations resulting in a shortfall in payment. He noted that DOF Subsea had failed to pay him three weeks’ pay in lieu of notice.

19      After the receipt of that first pay advice, Mr Jouault and DOF Subsea have been engaged in protracted email correspondence concerning the alleged underpayment.  Mr Jouault received further payment and payment advice on or about 20 December 2012.  The further money received rectified all underpayments, with the exception of the three weeks’ pay in lieu of notice.

Darren O’Leary

20      The only other witness called was Mr Jouault’s former manager Mr Darren O’Leary.  Mr O’Leary’s evidence in chief was that after having received Mr Jouault’s resignation on Friday, 7 December 2012 he did not act upon it immediately, but rather, waited until Monday, 10 December 2012 at which time he tried to convince Mr Jouault not to resign.  He was unsuccessful in that regard. Thereafter he set about enabling Mr Jouault’s departure by 14 December 2012, which he knew was to be Mr Jouault’s last day of work prior to taking leave. 

21      Mr O’Leary’s recollection is that he waited until Wednesday, 12 December 2012, before informing Ms Forrest of the arrangements concerning the ending of Mr Jouault’s work. That contention is supported by documentary evidence (Exhibit 5).  Mr O’Leary does not recall any discussion with Mr Jouault about the withdrawal of Mr Jouault’s leave application.

22      When challenged under cross-examination about his recollection concerning the initial discussions surrounding Mr Jouault’s resignation, Mr O’Leary agreed that his attempt to dissuade Mr Jouault from resigning may well have occurred on Friday, 7 December 2012, rather than Monday, 10 December 2012.

23      Mr O’Leary’s evidence supports DOF Subsea’s contention that Mr Jouault never withdrew his leave application.  It is obvious that Mr O’Leary proceeded throughout on the basis that Mr Jouault would finish up on 14 December 2012, in order to take leave before commencing his new job.

Conclusion

24      The pivotal factual issue to be determined is whether Mr Jouault’s application for leave was withdrawn so that he could work out his entire notice period.

25      As indicated earlier, because DOF Subsea is avoiding the Claim it bears the onus of establishing on the balance of probabilities that Mr Jouault insisted on taking his leave, and that his application for leave was never withdrawn.

Assessment of Evidence

26      Mr Jouault’s evidence and that of Ms Forrest are diametrically opposed with respect to the pivotal factual issues.  Both gave evidence in an acceptable manner and stood firm under challenge.  There is no particular reason to find that one was truthful and the other not.  Notwithstanding that, Mr Jouault came across as being a better historian.  His evidence was more detailed as to time, place and circumstance.  He appeared to be meticulous in his approach.  Ms Forrest, on the other hand, did not appear to be as thorough in her testimony.  In many respects she could not recall events or the sequence of events. 

27      Mr O’Leary’s evidence is supportive of Ms Forrest’s position.  Indeed, it is the case that Mr O’Leary acted in such a way that reflected his belief that Mr Jouault would be ceasing work to take up leave before starting his new job.  I recognise however that Mr O’Leary’s evidence is not determinative because he was not privy to the alleged conversation or conversations had between Mr Jouault and Ms Forrest.

28      It is not the conflicting viva voce evidence but rather the documentary evidence which assists the Court in resolving the issues.  In that regard, the crucial piece of documentary evidence is the email (referred to above) from Mr Jouault to Ms Forrest, which was copied to Mr O’Leary and sent at 7.53am on Thursday, 13 December 2012 (page 22, Exhibit 5).  Mr Jouault does not concede that he sent that email but I find that he did.  I accept that the email which is part of the Respondent’s business records is a genuine document.  There has not been any suggestion that it has been fabricated or has otherwise been brought into existence for an improper purpose.  Indeed, the fact that it was sent is consistent with Mr Jouault’s own evidence concerning the missed telephone call of the previous evening and his response to it.

29      What Mr Jouault said in that email is unequivocal.  In the second sentence of his email he said:

“After discussions with Darren and Martin I can confirm that tomorrow Friday the 14th of December will be my last day in the office.”

30      I observe that, had the termination of his employment occurred in the manner that he suggests, it would be highly unlikely that the end date of his employment would have been the subject of discussion between him, Darren and Martin.  On Mr Jouault’s evidence, Ms Forrest had told him that the decision to pay him in lieu of notice had already been made by “senior management”. 

31      In the third sentence of that same email he said:

“I will be on leave until the 4th January 2013 which will conclude my notice period.”

32      Mr Jouault appears to be very careful and meticulous in approach. He also seems to be a good historian and record-keeper.  Given his attributes it is of particular significance that he said in the email that he was, “on leave” until 4 January 2013.  If DOF Subsea had brought his contract of employment to an end by agreeing to pay out his notice period as at 14 December 2012, then his employment would have ceased on that date.  The notion of leave would not have been within contemplation. His email confirms his actual situation, that is, that he was on leave until 4 January 2013.  That is also supported by mention in his email that his notice period was to conclude on 4 January 2013.  His notice continued until that time.  That could not and would not have been the case if his employment had been terminated as he says it was.

33      Mr Jouault’s contentions are contradicted by the express terms of his own email. Indeed, his email supports DOF Subsea’s position.  If the situation was as Mr Jouault says it was, it would have been just as easy for him to have confirmed that he was to be paid out the balance of his notice period and that Friday, 14 December 2012 would be his last day in the office. Given Mr Jouault’s meticulous nature, as is demonstrated by the way in which he gave his evidence and by the documentary evidence he has produced, it is most probable that had there been a decision made to curtail his notice period and pay him out, that he would have said so.

34      Mr Jouault suggests that the fact that he has been paid out his holiday entitlements as at 14 December 2012 supports his contention that his employment was terminated during his notice period. Whilst that may be so, it is just as consistent with DOF Subsea falling into error in calculating his termination pay as it undoubtedly did when it made its first payment to him and gave him his first pay advice (Exhibit 1).  He also places reliance upon the terminology used in an email sent to him by Ms Forrest’s assistant, Ms Vikki McKeown, on 27 December 2012 (Exhibit 3).  In her email, Ms McKeown repeatedly refers to “termination”.  Mr Jouault says that this supports his contention that his employment was terminated during a notice period. With respect, I do not agree.  Within that same email Ms McKeown expresses a view that Mr Jouault’s termination date was 4 January 2013, which is consistent with DOF Subsea’s contention.

35      Before concluding, it is important to mention the decision of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Anor v Silcar Pty Ltd [2013] FWC 856 which was raised by Mr Jouault.  That decision is to be distinguished on its facts.  In that case the employer forced the employee to take leave during the notice period.  That of course could not be done.  It is not suggested here that Mr Jouault was forced to take leave during his notice period.

36      At [46] Commissioner Gooley concluded that:

“…the right to notice and the right to annual leave are independent and cannot be used to cancel out the other right.”

37      An employee has the right to notice when the employer terminates the employee’s employment.  However, when it is the employee who chooses to terminate the employment relationship, it is the employer who has that right to notice.  Once Mr Jouault gave notice of his resignation to DOF Subsea, it had the right to that relevant notice period.  DOF Subsea waived that right and permitted Mr Jouault to take his planned annual leave.  The taking of annual leave was as a result of an agreement reached between the parties as is reflected in the conduct of the parties, and confirmed in Mr Jouault’s email of 13 December 2012.

Result

38      On the available evidence I am satisfied on the balance of probabilities that Mr Jouault took annual leave during his notice period, which ended on 4 January 2013.  In the circumstances, Mr Jouault is not entitled to any further payment for the period 17 December 2012 to 4 January 2013 (inclusive).

G CICCHINI

INDUSTRIAL MAGISTRATE