FEDERAL COURT OF AUSTRALIA

Koutalis v Pollett [2015] FCA 1165

THE COURT ORDERS THAT:

1.    The applicants be granted an extension of time in which to file a notice of appeal.

2.    On or before 7 October 2015 the applicants file a notice of appeal in the form of the draft amended notice of appeal after deleting draft grounds 5 and 6 and amending draft ground 3.

3.    The draft notice of appeal so amended be treated for the purposes of the hearing of the appeal as the notice of appeal.

4.    The appeal be allowed.

5.    The order made by the Chief Industrial Magistrate’s Court on 20 May 2015 be set aside and in lieu thereof it be ordered that:

“1.    The application for recovery of money filed on 3 December 2014 be dismissed.”

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1    This is an appeal from the Chief Industrial Magistrate’s Court of New South Wales pursuant to s 565(1) of the Fair Work Act 2009 (Cth). The proceedings before the court below were conducted under the provisions of s 548 of the Act, being the small claims procedure.

The issue

2    Adam Pollett had been employed for about eight and a half years by Mr Edward and Mrs Dawn Koutalis in their automotive repair business, known as E&D Koutalis Automotive Services, that they had operated since about 1986. The business was conducted at the relevant time in Granville, a suburb of Sydney. Mr Pollett was employed as an automotive mechanic commencing in October 2005, and had worked continuously in the business ever since.

3    The central issue before the magistrate, and in the proceedings before me, is whether Mr Pollett resigned from his employment in a legally effective way in a discussion he had with Mr Koutalis early in the morning when he first arrived at work on 5 May 2014. On 20 May 2015, his Honour appears to have held (in the circumstances explained below) that Mr Pollett had not resigned but had been constructively dismissed, and ordered Mr and Mrs Koutalis to pay Mr Pollett $12,492.12.

The legislative scheme

4    I will explain the statutory circumstances and the way in which the proceedings came to be conducted in the court below before dealing with the factual background. Mr Pollett elected to have the small claims procedure apply to the proceedings under s 548(1)(c) of the Act. That was possible because he claimed an amount less than $20,000. Relevantly, s 548(3) provided:

(3)    In small claims proceedings, the court is not bound by any rules of evidence and procedure and may act:

(a)    in an informal manner; and

(b)     without regard to legal forms and technicalities.

5    A party to a small claims proceeding could only be represented in them by a lawyer with the leave of the court, and, if it considered appropriate to do so, the court could grant such leave subject to conditions designed to ensure that no other party was unfairly disadvantaged (s 548(5), (6)).

The proceedings below

6    On 3 December 2014, Mr Pollett commenced the proceedings by filing an application in the Chief Industrial Magistrate’s Court. When the proceedings came before a deputy registrar on 11 February 2015, Mr and Mrs Koutalis were represented by their solicitor. He sought leave under s 548(5) to represent his clients at the final hearing and to cross-examine witnesses called against his clients. The deputy registrar refused leave both for the solicitor to appear at the final hearing, and for witnesses to be cross-examined there. Mr Pollett had been assisted by his father, Brett, on that occasion, with the deputy registrar’s leave, but the deputy registrar reserved to the magistrate hearing the matter, which was set down on 20 May 2015 for a two-hour hearing, the question whether Brett Pollett would be able to represent his son. In the event, nothing turned on that.

7    Suffice to say that the proceedings before his Honour were conducted in an informal manner and certainly without regard to legal forms and technicalities, so much so that at no point did his Honour actually deliver reasons for judgment. As will appear, this caused some difficulty in conducting an appeal from his decision to order that Mr and Mrs Koutalis pay Mr Pollett $12,492.12.

8    The parties have agreed that, if the appeal is allowed, then the judgment below should be set aside entirely, and if the appeal is dismissed the judgement sum should stand.

9    The magistrate had before him, on Mr Pollett’s side, his statement of events dated 6 May 2015 and a number of documents annexed to his application which served the function of being his evidence and, on the other side, affidavit evidence from each of Mr and Mrs Koutalis and Marco Malovini. Mr Malovini ran an auto smash repair business across the street from the Koutalis’ business. There was no cross-examination of the various witnesses, no doubt, in conformity with the deputy registrar’s earlier order.

The factual background

10    On Friday 18 April 2014, Mr Koutalis sent Mr Pollett on two weeks annual leave commencing when he finished work that day. Mr Koutalis had considered that there were problems with the standard of Mr Pollett’s work and his application to his task. On 14 April 2014, Mr Koutalis had told Mr Pollett that a two week break might help Mr Pollett regain his focus and enthusiasm for his work, and later decided that the leave should begin at the end of that week. Thus, Mr Pollett took annual leave from 21 April 2014 and returned to work on Monday 5 May 2014.

11    On 5 May 2014, Mr Koutalis said that he greeted Mr Pollett at the reception desk of the business at about 7.50 am, shook his hand and invited him into the office to have a talk about how Mr Pollett was then going and what he wanted to do. Mr Koutalis noticed that Mr Pollett appeared to be a little agitated. He said that Mrs Koutalis was sitting at the reception desk about two metres outside his office and that he left the door open. He then recounted his version of a conversation with Mr Pollett. Mr Pollett responded to the question as to how his break had been by saying that he wanted more money. The two men engaged in a discussion about pay. In brief, Mr Koutalis said that he was not going to pay any more money, and Mr Pollett then said that he was not happy and could not see himself going anywhere in the business. The conversation then proceeded:

Mr Pollett:    Well I can’t go anywhere here and I’m not happy. I want to leave!

Mr Koutalis:    What do you mean?

Mr Pollett:    I don’t know, I’m just not happy.

Mr Koutalis:    Well you either want to stay or you want to go?

Mr Pollett:    What do you want me to do?

Mr Koutalis:    Well it’s your decision Adam. But I don’t want you to make a rash decision now. You have worked here for many years. Let’s work together for the next month and see if we can work it out and improve your enjoyment here.

Mr Pollett:    Well I’m not happy here.

Mr Koutalis:    What do you want to do?

Mr Pollett:    I don’t want to start work. I want to leave. I don’t want to work here anymore.

Mr Koutalis:    That’s disappointing to hear. Well will you at least give me a month’s notice?

Mr Pollett:    No its better that I go now, sooner rather than later.

Mr Koutalis:    Ok. Well if that’s your decision can you write me a letter of resignation?

Mr Pollett:    I prefer to do that at home. I will bring it with me when I come back to pick up my tools. (emphasis added)

12    Mr Koutalis said that Mr Pollett then left the office and walked over to speak to Mrs Koutalis at the reception desk, while Mr Koutalis made a handwritten note at that time, in which he recorded:

I suggested we work together for 1 month. He said he was not going anywhere & not happy & decided to resign. I said, “Do not make this decision today.” He stated he did not want to start work. He would go home & write out his resignation.

13    Mr Koutalis walked back into the reception area after about three minutes had passed, and heard his wife ask Mr Pollett, “Adam, will you write a note of resignation for me,” to which Mr Pollett replied, “I will bring it in later when I pick up my tools.” About an hour later, Mrs Koutalis told her husband that Brett Pollett had telephoned her and asked about what contract his son had been employed under and what his entitlements were. That caused Mr Koutalis to suggest that she ring Fair Work Australia to see what their rights were.

14    Later, at about 2.35 pm on 5 May 2014, Mr Koutalis said he received a call from Mr Pollett, and they had a conversation in which he asked Mr Pollett what he would like, and Mr Pollett replied, “I’ve made a hasty decision and don’t want to resign. I’ll be back at work tomorrow.” However, Mr Koutalis responded, “I’m sorry, Adam, I’ve accepted your verbal resignation.”

15    The next morning, Mr Pollett turned up at work in his full uniform at about 7.30 am. Mr Koutalis told him that he had resigned and should leave.

16    Mrs Koutalis’ evidence largely corroborated that of her husband. She had overheard the tail end of the conversation while the two men were in Mr Koutalis’ office on 5 May 2014 and gave a similar account to Mr Koutalis’. She then said that Mr Pollett left her husband’s office and approached her at the reception desk, making a gesture with his arms extending out and saying immediately before he left the reception area:

I am sorry, Dawn. But I have to do what’s best for me.

Mrs Koutalis:    Well, you have to do what is best for you, Adam.

Mr Pollett:    I am not happy here anymore, and I have to do what’s best for me.

Mrs Koutalis:    Well, maybe you should look at doing something for yourself.

Mr Pollett:    I’m looking at doing that.

Mrs Koutalis:    Will you write me out a note of resignation?

Mr Pollett:    I will bring it later today when I come to pick up my tools. I’m not happy here anymore. (emphasis added)

17    Importantly, Mr Malovini said that he had known Mr Pollett since 2005. Mr Malovini said that, over the years of his employment, Mr Pollett often came over the road to talk with Mr Malovini during his lunch breaks or after work, while he waited to be picked up by his wife. Mr Malovini said that, as he recalled, between about 9.00 am and 9.30 am on 5 May 2014, Mr Pollett walked into his business premises and they had a conversation to the following effect (I have edited the expletives):

Mr Pollett:    That’s it! I have had enough! I’ve left Ed!

Mr Malovini:    What do you mean?

Mr Pollett:    It’s too [f…ing] hard and he’s not going to give me any more money!    

Mr Malovini:    Can’t you work it out?

Mr Pollett:    No, no [f…] that! I have had enough!

Mr Malovini:    So what are you going to do?

Mr Pollett:    I am going to open up my own mobile mechanic business. I’m going to buy a van and start doing my own shit.

Mr Malovini:    Running your own business is not as easy as you think.

Mr Pollett:    It’s not gunna be as bad as doing my [f…ing] head in working for Ed! (emphasis added)

18    Mr Pollett’s statement of 6 May 2015 was exchanged contemporaneously with the three affidavits relied on by Mr and Mrs Koutalis. In contrast to the affidavit accounts, Mr Pollett said that on 18 April 2014, Mr Koutalis had directed him to take compulsory or unrequested annual leave for the following two weeks, so that he was to return to work on 5 May 2014. He said that Mr Koutalis had explained that it was necessary for him to do so to consider his work performance and his future with the business. Mr Pollett said that in the preceding week or so, Mr Koutalis had issued Mr Pollett with three notices of breach, two of which were given on the same day, and had made a number of allegations against him with which Mr Pollett did not agree.

19    Critically, Mr Pollett said that his conversations with Mr and Mrs Koutalis on the morning of 5 May 2014 were as follows:

Upon returning to work on the morning of Monday 05/05/14 Mr Koutalis directed me to his office where he initiated discussions with me related to my work performance and future employment. During the course of these discussions he told me, several times, that if I wasn’t happy there that I knew where the door was and he gesture in that direction several times. He then began to tell me that I was obviously unhappy with my job there and he suggested to me that I should resign from my position. He then began pressuring me to resign and telling me that he wanted me to write him a letter of resignation. I felt very intimidated and cornered by Mr Koutalis. I told him that I refused to resign and I did not write a letter of resignation. I knew exactly what his intentions were and I knew exactly what a financial loss a resignation would mean to me and what it would mean to him. I then told Mr Koutalis that I could not remain there any longer that day under the circumstances and that I was leaving the workshop for the remainder of the day to go home to seek advice about what had just taken place there and that I would be in contact him later that day. As I was leaving the office Dawn Koutalis asked Edward Koutalis if I was going to resign or not, to which Edward Koutalis replied “Just finish him up today.” (emphasis added)

20    Mr Pollett said that after he returned home, his father called Mrs Koutalis, and she had recounted to him that his son had given a “verbal resignation.” Both Mr Pollett and his father then made inquiries of the Fair Work Commission and other industrial bodies as to his position.

21    Mr Pollett said that as a result of the morning’s events, he visited his local family doctor for advice and treatment for his depression and anxiety. He said that he called Mr Koutalis later on 5 May 2014 to tell him that he would be attending work “as per normal the following day”. He said that Mr Koutalis had:

told me that I had already given him a “verbal resignation” earlier that day and that he had accepted it. I strongly refuted his suggestions and advised him that I would be in attendance for work the following day.

The hearing before the magistrate

22    During the course of the hearing before his Honour, on 20 May 2015, he revealed that he had not previously heard a matter under the small claims procedure of the Fair Work Act, and that he had had no training in that jurisdiction. His Honour said that the hearing had been assigned to him that morning. After a break, his Honour appeared to have partly read the affidavit and statement material to which I have referred, and he then commenced a lengthy discourse with Mr and Mrs Koutalis and Mr Pollett with the informality and disregard of legal forms that s 548(3) contemplated.

23    His Honour commenced by saying that he had not had an opportunity, in the few minutes that he had taken to familiarise himself with the papers, “to fully read everything, but I’ve skim read it, and I just wonder whether anything is to be gained by talking about the matter before we descend into evidence, if there’s to be any questioning,” and then continued:

I note that the gentleman who lives across the road, Malovini, basically says Mr Pollett did say you’ve resigned. That’s the substance of it. However, regardless of what he might have said, there is a preliminary question. The preliminary question arises from the affidavit of Mr Edward Koutalis, who described what happened. (emphasis added)

24    The magistrate seems to have taken the view that Mr Koutalis’ evidence did not amount to evidence of a resignation by Mr Pollett, saying of that evidence:

He’s asked what he wants to do. He says, “I don’t want to start work. I want to leave. I don’t want to work here anymore.” It’s not just a matter of a triumph of form over substance. With things like that, there is either a resignation or there is not. (emphasis added)

25    His Honour seems to have been impressed by the request that Mr and Mrs Koutalis each made for a written resignation, and at a later point in the transcript, said that Mr Pollett might have indicated an intention as to what he was going to do:

That is, to work for himself, perhaps, but if there is to be a resignation, there either has to be the word “resign” or an equivalent word. (emphasis added)

26    The magistrate said that no such wording had appeared in the affidavits of Mr and Mrs Koutalis. His Honour seems to have focussed on Mr Pollett’s evidence and stated:

He says that he never did intend to resign and didn’t resign. That’s a disputed question of fact. (emphasis added)

27    His Honour said what had occurred on the morning of 5 May 2014 was “negotiation whereby he was making it pretty plain that’s what he was going to do but he hadn’t got around to doing it.”

28    Later, the magistrate said to Mr Koutalis that Mr Pollett:

has plainly indicated that he was going to resign but he never got to do it before, what, a bit later and the next day was either a change of heart, if you’re right or an indication of his always held position, if he’s right. Namely, not resigning. He never got around to doing it. Therein lies your problem. (emphasis added)

29    As a result, his Honour appears to have proceeded on the basis that:

I’ve had to find that he didn’t resign, but since you [speaking to Mr and Mrs Koutalis] treated it as a resignation, you are what the law calls constructively terminating him. (emphasis added)

30    His Honour then worked out his damages calculation. Later on, in the informal hearing, his Honour said to Mr Koutalis:

If it is any consolation to you at all, as best I can judge, reading through the affidavits, I tend to think you’re telling the truth.

31    But then the magistrate reiterated that Mr Koutalis’ version did not amount to evidence of a resignation.

Leave to appeal

32    At the beginning of the hearing today, I granted Mr and Mrs Koutalis an extension of time in which to file a notice of appeal for the following reasons. Mr and Mrs Koutalis applied to the Chief Industrial Magistrate’s Court for a transcript of the proceedings before his Honour about two weeks after the hearing, and did not file a notice of appeal before the 21 days for filing one had expired. Instead, they applied five, or three working, days later seeking an extension of time in which to appeal.

33    I was satisfied that Mr and Mrs Koutalis had given a reasonable explanation for the short delay. Mr and Mrs Koutalis were not allowed to be represented and had no idea of exactly how the proceedings before his Honour were being conducted for the purposes of being able to inform themselves or their lawyers of what it was that they were appealing against, except the monetary sum. The time delay was brief. The case is one that appeared to me to be strong on the merits that ought to be heard, in fairness to the parties, and no prejudice was suggested by or on behalf of Mr Pollett resulting from the very small delay: Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540 [66(4)] per Kirby J.

34    I was of opinion, for the reasons that I have given, this was plainly a case where it was proper to grant leave, particularly having regard to what I considered to be the serious irregularity of the absence of any reasons for judgment given by his Honour. That omission, among other things, denied all of the parties and the court the benefit of knowing how his Honour came to the findings he did, and why.

The issues on appeal

35    The notice of appeal that will be filed has been narrowed to four grounds, that essentially give rise to two issues: namely first, whether his Honour erred by failing to give any or any adequate reasons for his decision, and, secondly, whether he failed to consider all of the evidence in arriving at his factual conclusion that Mr Pollett had been constructively dismissed from his employment.

The necessity for reasons for judgment

36    In Roy Morgan Research Centre Pty Limited v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at 83-84 [26], Gaudron, Gummow, Hayne and Callinan JJ referred to the need to give reasons for decisions as being an ordinary rule. There, they said that reasons for refusing leave need not be extensive, and that in appropriate cases, little more might be required than perhaps a very short statement of the chief conclusions that the judge refusing leave had reached. They said, critically:

The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave. (emphasis added)

37    More recently, in Wainohu v State of New South Wales (2011) 243 CLR 181 at 213-214[54]-[56] French CJ and Kiefel J said that the requirement to give reasons for judgment was an ordinary incident of the judicial process of general application for all persons exercising judicial functions. The importance of giving reasons for judicial decisions was also emphasised by Gleeson CJ, Gummow and Kirby JJ in Fox v Percy (2003) 214 CLR 118 at 126 [24], where their Honours said that after the general facility of appeal was introduced and the number of civil jury trials reduced, there had been an:

increase in trials by judge alone at the end of which the judge, who is subject to appeal, is obliged to give reasons for the decision (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666-667 citing Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 257-258, 268-273, 277 to 281). Such reasons are, at once, necessitated by the right of appeal and enhance its utility. (emphasis added)

38    The nature and extent of any reasons which a judge or magistrate must give after conducting a proceeding under s 548 of the Act must accommodate itself to the way in which the procedure is governed by s 548(3). In the analogous context of proceedings under the Small Claims Act 1974 (NT), Kearney J observed in Bayram v Benton (t/a Digital Dynatronics Australia) (1994) 117 FLR 414 at 420, that the procedure was largely and necessarily inquisitorial, particularly when parties were not legally represented and that:

Nevertheless, when, as here, the proceedings are conducted in a largely inquisitorial manner, the court must bring to the parties' attention the critical issue on which its decision is likely to turn, so that they may have an opportunity to address it. This ensures that a party affected by the decision is given the opportunity to deal with relevant matters adverse to his interests which the court proposes to take into account.

39    Importantly, there is nothing in s 548 that excuses a court conducting a hearing with the small claims procedure from giving the parties adequate reasons for its decision. That is particularly so because s 565(1) of the Act gives a right of appeal to this Court from any decision of an eligible State or Territory court, including the Chief Industrial Magistrate’s Court and the Local Court of New South Wales.

40    I am of opinion that the existence of that right of appeal demonstrates that the ordinary incident of the judicial process, namely, the giving of reasons for judgment, is an essential requirement of the small claims procedure. That is not to say that the reasons need be particularly elaborate. But, the reasons must identify the findings of fact and law that the judicial officer makes and explain his or her reasons for the decision that results from those findings. The reasons must inform both the parties, and any appellate court, of those findings and reasoning of those matters so that the right of appeal from the decision conferred by s 565(1) can effectively be exercised. Gleeson CJ, Gummow and Kirby JJ said in Fox 214 CLR at 126-127 [25]:

Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect” [Dearman v Dearman (1908) 7 CLR 549 at 564, citing The Glannibanta (1876) 1 PD 283 at 287]. In Warren v Coombes [(1979) 142 CLR 531 at 551], the majority of this Court reiterated the rule that:

“[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

As this Court there said, that approach was “not only sound in law, but beneficial in … operation” (Warren v Coombes (1979) 142 CLR 531 at 551. See also Taylor v Johnson (1983) 151 CLR 422 at 426; Jovanovic v Rossi (1985) 58 ALR 519 at 522; cf Moran v McMahon (1985) 3 NSWLR 700 at 715-716, per Priestley JA). (emphasis added)

41    In this matter, it is impossible to tell precisely what reasoning process his Honour applied, even after reading the whole of the transcript and trying to deduce why his Honour came to whatever factual conclusion he did and at what point. One thing is certain in my opinion, that, to the extent that his Honour reviewed the evidence, he did not review it as a whole or consider what the parties’ positions objectively conveyed about Mr Pollett’s employment position in his interactions with Mr and Mrs Koutalis in the early morning of 5 May 2014. His Honour ignored Mr Malovini’s evidence.

42    For these reasons, the decision below must be set aside for his Honour’s failure to give reasons. However, because the small claims procedure was invoked, I am in as good a position as his Honour to decide the proceedings on the evidence and material that was before him: Fox 214 CLR at 126-127 [25].

The resignation issue

43    The question whether a resignation did or did not occur does not depend upon the parties’ subjective intentions or understandings. Rather, it depends upon what a reasonable person in the position of the parties would have understood was the objective position immediately after Mr Pollett left the Koutalis’ business’ premises on the morning of 5 May 2014, based on what each party to the conversation had said or done, in light of the surrounding circumstances. In Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at 179 [40], Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ said:

This Court, in Pacific Carriers Ltd v BNP Paribas [(2004) 218 CLR 451], has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction [Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at 461-462 [22]]. (emphasis added)

44    In my opinion, the same considerations apply to the evaluation of the circumstances where parties engage in conversations and conduct that affects their legal rights under a contract, including the assessment of whether or not words and or conduct can be seen to amount to a resignation. Nonetheless, in employment contexts, a court must be conscious that situations can arise in which one or other of the parties acts in the heat of the moment in such a way that a reasonable person in the position of the parties in all the circumstances would not understand the employee to be resigning or the employer to be terminating the employee’s employment, as the case may be. So much is reflected in what May LJ, with whom Croom-Johnson and Woolf LJJ agreed, said in Sovereign House Security Services Limited v Savage [1989] IRLR 115 at 116, namely:

In my opinion, 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. (emphasis added)

45    This consideration also bears on the question of whether, in the circumstances, Mr Pollett had been constructively dismissed within the meaning of s 386(1)(b) of the Act. That provided that a person will have been dismissed if he or she has resigned from his or her employment, but was forced to do so because of conduct, or a course of conduct, engaged in by his or her employer.

46    In my opinion, the proper inference, having regard to all of the circumstances, is that Mr Pollett resigned in the conversation he had with Mr Koutalis on the morning of 5 May 2014. I am satisfied that what happened was set out, in substance, in the evidence of Mr and Mrs Koutalis. That is because immediately after his conversations with his employers, Mr Pollett went across the road and confirmed, in unequivocal terms, that he had resigned to Mr Malovini. Mr Malovini’s evidence satisfied me that, among other things, Mr Pollett had decided over the previous two weeks of his leave to start up his own business and that he had had enough of dealing with Mr and Mrs Koutalis.

47    I do not consider that there is any reason to think that what occurred was a situation of constructive dismissal that Mr Koutalis or Mrs Koutalis had contrived, provoked or sought to engineer on the morning of 5 May 2014, or in the preceding period. In my opinion, there is no question that when Mr Pollett, as an employee, said, “I don’t want to start work. I want to leave. I don’t want to work here anymore” and “No. It’s better that I go now, sooner rather than later,” he communicated clearly that he no longer considered himself to be an employee. A person in the position of Mr Koutalis would have understood that to be a resignation, and both he and his wife did understand that to be so.

48    Hence, Mr and Mrs Koutalis both asked Mr Pollett to confirm his intention in writing. However, in my opinion that suggested that they had appreciated the seriousness of what Mr Pollett had just done and wished him to document it as a good business precaution, in order to avoid later issues. Having regard to Mr Pollett’s virtually contemporaneous statements to Mr Malovini of what he had just done and why, his intention, objectively considered, as opposed to whatever might have been in Mr Pollett’s mind, was as plain as could be. Mr Pollett was fed up with his employment and had resigned. He had decided that he would begin his own business, as he told Mr Malovini. Mr Pollett, by resigning, had brought his employment to an end.

Conclusion

49    For these reasons, I am of opinion that the appeal must be allowed. I will order that the judgment of the Chief Industrial Magistrate’s Court, given on 20 May 2015, be set aside and, in lieu thereof, the application for recovery of money, filed on 3 December 2014 in that Court, be dismissed.

Associate:

Dated:    29 October 2015