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Resigned or Fired?

This personal grievance went all the way to the Employment Court. The employee, Cody Joyce, was permitted to take the company ute home to get to and from work and some personal use, but he was instructed not to abuse this. In his first three months of employment, this fascinating employee incurred 6 speeding tickets, and then during the Christmas Closedown he had an accident in the vehicle. He claimed he missed a turn and slid into a barrier. When the employer asked him not to drive the ute for personal use, the employee took exception to this, appeared to resign and then claim he was dismissed.

The employer was Ultimate Siteworks Ltd, a small civil earthworks business with two Directors, Grayson and Lisa Rowe, and three employees. Mr Joyce started at the end of September 2021 as a Machine Operator. Mr Joyce’s Employment Agreement said in the vehicle clause:

“The employer can decide to stop providing the vehicle if it is no longer needed for the employee’s duties or if it has been misused, eg repeatedly breaking traffic laws or vehicle use policies. The employee will not be compensated.”

Mr Joyce was told of the annual Christmas closedown and because he had no annual leave entitlement, the company paid him leave in advance. The accident occurred early January and shortly after, an exchange of texts began starting on 5 January. This was the exchange:

ROWE: … Also that work ute you have is for work use not personal use too by the way

JOYCE: … I use it coz I’ve had to put my car in storage coz I don’t have room for everything here so how am I spose to get around?

ROWE: Not really my issue sorry mate.

JOYCE: Are you serious bro well I’m going to have to hand my notice in then I can’t park my car here
coz your trucks here but I can’t use the truck to get 
around wow

Wed, 5 Jan, 9:59 pm

ROWE: Alg bro you gotta do what you gotta do

Thu, 6 Jan, 6.22 am

JOYCE: Morning that’s sweet as bro I’ll work off the hours I owe you first then I’ll hand it in could you be a reference for my new job please

And don’t worry I won’t use Ute for personal use in mean time

Fri, 7 Jan, 7.37 pm

ROWE: Hey mate totally up to you, if you don’t want to come back that’s fine just make sure the Ute and uniform is clean and drop it off no worries.

Happy to give you a reference [thumbs up emoji]

Saturday, 8 Jan, 9.24 am

JOYCE: If it’s okay with you could I work first week back then head off just coz new job doesn’t start for two weeks after I tell them I’ve handed notice in

so I’ll just start with them week after I’ve worked with you that way I can still have some money till I start my new job but up to you bro

Saturday, 8 Jan, 2.35 pm

ROWE: At the end of the day i think it’s just cleaner and easier bro if you don’t come back

Just clean the Ute for me and drop everything back–

Phone
Hardhat
Uniform
Docket books
Digger key
Everything you were given when you started

You can either drop it at the shed at Sharon Road or at my place whatever you want.

Cheers [thumbs up emoji]

JOYCE: Ok sweet as bro I’ll do that on wensday as that’s when We will have money again for gas so I can get picked up then

ROWE: Cheers

JOYCE: Thanks for having me Grayson was a pleasure take care bro [smiley face with sunglasses emoji]

The next day, things took a turn. Mr Joyce didn’t question his employment had ended, but did ask to be paid for more hours, and said if he wasn’t paid, he would be taking the company to Court. Mr Rowe responded saying the accountant was calculating the final pay, he would be paid what he was owed however wouldn’t be paid until the company property had been returned.

On Monday 10 Jan, Mr Joyce responded saying that’s not how it works, that only holiday pay is paid after company property is returned. Mr Rowe texted back expressing his disappointment, his expectations of everything being returned by the Wednesday and that it was not Mr Joyce’s property to be used as blackmail, and finally encouraging Mr Joyce to take him to Court if he wasn’t happy.

The response from Mr Joyce was to deny blackmail and claim two weeks’ notice, statutory holidays and two days work was owed. He said he wouldn’t return the property until he was paid.

Unsurprisingly, at this point the employer sought legal advice and Mrs Rowe took over the communications. She sent a message on Friday 14 January stating all employment entitlements would be paid and the accountant was working out the amount. Mrs Rowe also asked Mr Joyce to confirm he had resigned, if he had whether he could work his two weeks’ notice, and that they required the ute returned immediately irrespective of whether he had resigned, and if it wasn’t it would become a police matter.

Mr Joyce responded saying he hadn’t resigned and that “being told your fired or not to come back is pretty much in the same category.”

On the Monday 17 January, Mrs Rowe messaged saying the 8 January text said Mr Joyce had a new job and wanted to give one weeks’ notice instead of two, that their response said they didn’t agree and that he had not been told his employment was terminated. It went on to ask that Mr Joyce confirm he was available to work if he had not resigned, and if he hadn’t resigned and wasn’t available to work they would conclude he had abandoned his employment.

Mr Joyce responded the same day with this explanation:

No i don’t’ have a new job as of yet once I was to hand my notice in two weeks after that I would have a new job meaning it was two weeks notice for yous then I would have a new job. I can get a job any time even tomorrow but I’m dealing with this situation so I can’t do anything Rn. and then Grayson’s reply was that it’s cleaner and easier I don’t come back as you can see in messages I asked to come back to work he said no why would I feel comfortable coming back Work doesn’t start until two weeks after I’ve told them that I’ve given yous notice could have been at any point that I gave it in

The employer went and collected the ute and Mr Joyce returned the cellphone.

It transpired that Mr Joyce did have another job. He signed an Employment Agreement with Evolve Civil on 11 January and it was signed by the company on 12 January with a start date of 12 January. It appears Mr Joyce actually started working for them on 17 January, the day he texted saying he didn’t have a new job.

Despite this, Mr Joyce raised a personal grievance claiming unjustified dismissal at the Employment Relations Authority (ERA). The ERA concluded he wasn’t dismissed, so Mr Joyce appealed this decision and expanded his claim in the Employment Court (the Court) to say he was constructively dismissed or in the alternative, unjustifiably disadvantaged. This was based on being told he couldn’t use the ute for personal circumstances. Although the Court pointed out that this new claim could not now be raised, it also noted that Mr Joyce acknowledged at the hearing that the instruction was not unfair or unreasonable in the circumstances.

In terms of the unjustified dismissal claim the Court concluded Mr Joyce had resigned. The Judge went on to say that even if he had concluded there was a dismissal Mr Joyce was only short of one week of pay and in view of the circumstances any compensation payment would have been very modest.

There was then the matter of costs, as Mr Joyce had also disputed the Authority’s awarding of costs against him in favour of the employer, for $5,750.  Mr Joyce thought $2,250 was more appropriate. The Court disagreed with Mr Joyce.

Costs for the Court hearing have been left with the parties to reach agreement on, and failing this the Court will determine costs.  Another interesting aspect of this case is that the employer sought a financial penalty against Mr Joyce of $5,000, because he had failed to pay the costs award to the employer in the ERA hearing – notwithstanding a separate decision of the ERA ordering him to comply with the costs order.   As this case decision was 18 April 2024, any Court costs decision for the Employment Court hearing is likely to be some time away yet.  The Employment court declined to order a penalty for non-payment of the ERA costs and reminded the employer of their rights to pursue this ‘debt’ through the District Court in the usual way of enforcing a judgment debt.

So what are the key learnings from this case? The first is to have a comprehensive Employment Agreement that clearly sets out the employee’s (and employer’s) obligations and responsibilities, and the consequences of not complying.  The second lesson is how important it is to respond to unacceptable behaviour or inflammatory comments in a calm, factual manner – and if you struggle with this, or don’t know what you can and can’t say, call us for help. We will guide you every step of the way.

You get reassurance that your employment matters are dealt with professionally, so you can go back to doing what you do best.

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