Abboud v The State of the New South Wales

LEGISLATION CITED: Industrial Relations Act 1996

Abboud v The State of the New South Wales (Department of School Education) (1999) 92 IR 32 Allison v Bega Valley Council (1995) 63 IR 68 Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385 Bankstown City Council v Paris (1999) 93 IR 209 Buckman v Burdekin (1998) 85 IR 415 Burke v McGirr (1995) 87 IR 54 Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410 CASES CITED: D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 Humphries v Cootamundra Ex-Services and Citizens Memorial Club [2003] NSWIRComm 211 Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57 Oswald v NSW Police Service (1999) 90 IR 42 Outboard World v Muir (1993) 51 IR 167 Smith v Director General of Education (1993) 51 IR 204 Ward v Mobile Innovations [2002] NSWIRComm 287 Wilson v Department of Education and Training (2000) 100 IR 1 Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268

APPLICANT Ms Leanne Jarvis, unrepresented LEGAL REPRESENTATIVES:

RESPONDENT Mr M Creswell, Agent

• 26 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS, DP

Application by Leanne Jarvis re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2005] NSWIRComm 311 1 Leanne Jarvis, ('the applicant') was employed as a Customer Relations Officer at the Plumpton Branch of the Totalisator Agency Board ('the TAB') from 19 March 2004 to 28 December 2004. Her employer at the TAB was its Agent, Mr Sam Costandi, who is the named respondent in these proceedings. 2 The circumstances surrounding the applicant's termination of employment raise a jurisdictional question as to whether the applicant resigned and/or abandoned her employment, or whether she was constructively dismissed by Mr Costandi. Thus, the incident which gave rise to the applicant leaving the workplace on 28 December 2004 was the subject of extensive scrutiny during the evidence in the proceedings. I shall return to this evidence in some detail later. 3 On 18 January 2005, the applicant filed an unfair dismissal claim pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ('the Act'). Conciliation conferences were conducted by Tabbaa C on 3 and 7 February 2005. The matter was subsequently re-allocated to me by his Honour the President on 9 February, following a s173 application seeking to have another member of the Commission arbitrate the claim. 4 A further conciliation conference failed to settle the matter and I listed the arbitration for 27 and 28 June 2005. Directions for the filing of evidence were issued on 14 March. 5 At this juncture, I note that the parties were unrepresented during the conciliation proceedings. Mr Creswell, Agent, later appeared for the respondent. During the conciliation conferences and to a lesser extent at the arbitration, both parties raised serious allegations against each other; most of which were unsubstantiated or not relevant to the jurisdictional issue to be determined or germane to whether or not the applicant was unfairly dismissed. 6 Indeed, the allegations continued after the case had concluded when the Commission received correspondence from Mr Creswell requesting that the Commission have regard to further unsubstantiated allegations about the applicant's recent conduct. The Commission invited the respondent to file a notice of motion if it wished to reopen the case. However, Mr Creswell declined to do so. I intend, as far as possible to avoid referring to, or commenting on matters which have no bearing on my conclusions in this matter, in order that the obvious hostility between the parties is not exacerbated. THE EVIDENCE

7 In her statement, the applicant claimed that she was forced to walk out of the Plumpton TAB agency on 28 December 2004, following an incident in which Mr Costandi abused, harassed and intimidated her. She said the incident arose after she had earlier queried him placing bets while at work using money from the tills. The applicant said the incident occurred in front of customers and her six year old daughter and while her partner was standing outside the agency. 8 She described how the argument started. About an hour after she had commenced work, the applicant raised with Mr Costandi a job which had not been done by another employee (Ms Brown) on the earlier shift in respect to a late scratching. Mr Costandi then started abusing and yelling at her. 9 In oral evidence, the applicant said she had worked for Mr Costandi at various TAB agencies for about five years. She described Mr Costandi as very moody and if things didn't go his way he would threaten to replace her. He deliberately created conflict between the staff. 10 The applicant agreed that when she had worked for Mr Costandi at the Mt Druitt agency four years ago, she had left the agency after becoming ill and had given Mr Costandi only a few days notice. She later went to work for Mr Costandi at Plumpton. When she met Mr Costandi to discuss starting at Plumpton, he raised concerns about her leaving without notice and she assured him she would give notice if she had to leave. 11 The applicant insisted she had not complained about other staff personally, but had complained about late scratchings which had not been done by the staff on the previous shift. Customers had complained about the scratchings having not been done. However, she acknowledged this was not a difficult or lengthy task. On an earlier occasion, when she left a note about it for the manager, Julie Walsh, Mr Costandi tore it up in front of her face and said he was sick of her complaining about the other staff. 12 The applicant said that she had raised her concerns with Mr Costandi himself and the manager, Julie Walsh and Mr Costandi had said he was sick and tired of her complaints. She had not raised the issue in the two workplace meetings held during her period of employment in which she was free to raise any issues of concern, including problems with a change of shifts. 13 The applicant claimed that Mr Costandi had told her on several occasions not to discuss anything with the other employees. She believed this direction related to her knowledge of Mr Costandi gambling at work. She was concerned at this as the money was her responsibility. The applicant agreed that she did not witness any missing money. However, it was not appropriate for Mr Costandi to be gambling with the takings. She identified one example where Mr Costandi withdrew $700 and later replaced it. 14 The applicant also claimed Mr Costandi had placed bets for other people. She conceded she had not reported these matters to the TAB. However, this was because she couldn't trust anyone at the TAB. She did, however report the "crimes" to the Police after she had been dismissed and the Police were still investigating the matter. 15 The applicant gave detailed oral evidence of what occurred on the afternoon of 28 December 2004. When she arrived at 4.00pm, Mr Costandi was talking to a customer in the customer area. The agency was very busy with at least 20 to 30 customers. After she and Ms Brown counted the safe, and it balanced, Ms Brown went home. 16 The applicant then raised the issue of another late scratching not having been done. Mr Costandi started yelling abuse at her. He said "You fucking bitch - ra, ra, ra why are you picking on her?" The incident lasted about 10 minutes and occurred in the customer area, not the kitchen (as alleged by Mr Costandi). 17 The applicant said she became scared, embarrassed and intimidated. She had never seen Mr Costandi behave that way before. Mr Costandi told her she had also been complaining about someone else getting an extra shift. They then went into the kitchen to look at the roster. Mr Costandi was shouting all the time. 18 The applicant then told Mr Costandi if he was unhappy with her work, she would give him two weeks notice. Mr Costandi replied "you can go any time you please. You can go now". She disagreed that this was an invitation for her to leave if she wanted to. She insisted this conversation occurred at the counter - not in the kitchen, as only she and Mr Costandi were working in the agency at the time. 19 That night the applicant phoned another employee, Nicole Rea and told her she couldn't go back to work after the way Mr Costandi had treated her and abused her. The next day, the applicant sent Mr Costandi a text message telling him not to run her name down in any way. She denied adding to the message "or you'll be sorry".

20 The applicant received a letter two days later which read: Dear Leanne Further to your sudden resignation on the 28th December 2004. It is so disappointing the way you stormed out of the office in the middle of your shift.

May I suggest to you that the way you put your colleagues down is so disheartening and unprofessional. You always have a complaint to make even if things are going the right way. Perhaps you should look at your attitude towards others for future employment. I will leave one hour's pay at the Agency on Friday 31st December 2004 Wishing you all the best in future. Agent Sam Costandi 28th December 2004 21 The applicant agreed she rang Mr Costandi after receiving his letter and could have said to him "I have your letter, are you being a smartarse? I have not finished with you yet". She agreed that if she said this, it would be offensive. 22 The applicant denied sending an offensive text message to Ms Brown on 30 December. Her phone records reveal that no text messages were sent. 23 The applicant referred to the conciliation proceedings before Tabbaa C. She said she sobbed during the first conciliation when Mr Costandi accused her of being paid to sleep with customers. At the second conciliation she was threatened that Ms Brown and her boyfriend would come to her house. The applicant believed the conciliation was a "complete disgrace". Security had to be called to remove Ms Brown's boyfriend from the Court. Everyone was yelling at each other and "things had gotten out of hand". 24 The applicant was asked about a number of serious allegations she made against Mr Costandi which were not supported by any statement or corroborative evidence. She accepted that these matters had nothing to do with her case of alleged unfair dismissal. 25 Mr Lawrence Burke is the applicant's partner. He was outside the agency on 28 December 2004 and gave evidence of what he saw and heard concerning the incident between the applicant and Mr Costandi. 26 Mr Burke said that after dropping the applicant at work and placing a few bets, he went outside for a smoke. The applicant's daughter was in the agency at the time and came out crying, saying "Sam is going to hurt mum". Mr Burke went to the front counter, but was nodded away by the applicant. Mr Burke said Mr Costandi was "very angry and abusive to Leanne the whole time I was there". He said the applicant was so upset she went home. 27 In oral evidence, Mr Burke said that when he was outside the agency, he could not really see inside and in fact, he didn't want to. He said he heard bits and pieces of the argument. When his daughter came out, he went in and heard yelling and screaming. He claimed Mr Costandi said "Don't worry about giving me two weeks notice, just fuck off now". 28 When he went outside, another customer followed him out and asked what was going on. A few days later, two customers asked him why he hadn't done anything. Mr Burke said he now regretted walking out while his girlfriend was being abused. Respondent's evidence

29 Mr Sam Costandi has been a TAB agent for 12 years. He presently has four agencies - Blacktown, Kings Langley, Mount Druitt and Plumpton. Agency employees usually work alone, except during changeover or on busy days such as Saturday or important race meetings. Mr Costandi believed that it was important that there be trust and respect between the employer and the employees. 30 In oral evidence, Mr Costandi denied ever gambling at his own TAB agencies and denied ever receiving a phone call from the applicant in which she expressed concern with his gambling at his agency. 31 Mr Costandi said that when the applicant walked out of the agency without notice on 28 December 2004, it was not the first time. She had done so on a previous occasion four years ago when she worked for him at another agency. He said when the applicant approached him for work at Plumpton, he agreed to do so, but he was worried she might walk out again. She had promised not to.

32 Mr Costandi said the applicant performed her work satisfactorily, but had a habit of complaining about her own problems and about other members of staff. She often complained about Heidi Brown, whom he had always found to be a good worker and loyal employee. 33 Mr Costandi believed that Ms Brown completed all her work before she left the agency on 28 December and the applicant was just picking on her because she was moody. He said the applicant was always complaining that Ms Brown left work behind. Even if there had been a late scratching, it would only take a few seconds to correct. He believed the applicant disliked Ms Brown and was jealous of her. 34 Mr Costandi gave his version of the events of 28 December. He was on the premises during the change of shift. Ms Brown had asked the applicant three times to count the cash so she could go home. After Ms Brown left, the applicant approached him with a late scratching and said "she never does scratchings, she never does anything, I always have to do her dirty work". 35 Mr Costandi said he took the applicant into the kitchen and told her to stop whingeing and picking on Ms Brown. He told her Ms Brown was doing an excellent job and that she should stop judging her colleagues' performance; that was his job, not hers. It was Mr Costandi's evidence that the applicant then said "if you think so, I'll leave". He replied "Don't threaten me. If you're not happy, leave anytime you like". 36 Mr Costandi said he then left the kitchen to serve some customers. He went back to the kitchen and the applicant then complained about Ms Brown getting extra shifts. He told her again to "Stop whingeing, stop picking on the poor girl and stop telling me how to run my business". The applicant then left the agency, leaving her keys behind. 37 It was Mr Costandi's expectation that the applicant would call him when she had cooled down. When she hadn't done so by 11.00pm that night he wrote to her, accepting her resignation. 38 The next day, Ms Brown and her partner, Mr Lamaro called into the agency to show him a text message from the applicant which read: You think you're fucking good telling Sam we are always picking on you. Everyone thinks you have a big fucking mouth up there and I hope you enjoy all your fucking shifts in the TAB cause you won't fucking last because I will make sure of that dog. 39 Ms Brown was upset and Mr Lamaro wanted to "have it out" with the applicant. Mr Costandi talked him out of it. Mr Costandi said he was appalled that the applicant sent such an intemperate and offensive message to a co-worker. It indicated to him that she did not intend to resume her employment, nor would he have her back. 40 On 29 December Mr Costandi received a text message from 'Leanne Relief' which read "Don't talk about me to staff or customers or I make your life very hard". The next day, the applicant phoned Mr Costandi and said "I've got your letter. Are you being a smart arse? I haven't finished with you yet". 41 Ms Nicole Rea had worked for Mr Costandi in various capacities since June 1995, and more recently as the Multisite Manager. She had always found him to be fair, but firm and very businesslike and professional. She had never heard him swear or use abusive language. 42 On 28 December 2004, Ms Rea was returning from annual leave when Mr Costandi called and told her the applicant had walked out of the agency. Around 7.00pm, while still travelling home, the applicant phoned and told her that she had walked out of the shift and would not be coming back. When she began to ask why, the phone cut out as she lost reception. Ms Rea could not recall if the applicant had mentioned Mr Costandi's abuse and that she couldn't go back and face it. 43 Around 10.00pm that night, Ms Rea called Mr Costandi. He told her that the applicant had been in a bad mood and whinged about Ms Brown not doing her job. She had kept complaining and degrading Ms Brown, so Mr Costandi said if she didn't like the way he ran his shops and staff, then she could go. The applicant threw her keys on the bench and left. 44 Ms Rea said that on 31 December, Mr Costandi showed her a text message on his phone which said "If you speak to anyone about me you will pay for it". Ms Rea noticed that the applicant's name and number were displayed on the phone. 45 Ms Heidi Brown had worked for Mr Costandi for 12 months. She said she had a very good relationship with him and had never heard him swear or use abusive language. She had worked with the applicant every Thursday and their relationship was cordial. In oral evidence, she confirmed the working relationship with the applicant was very good. 46 At the shift changeover on 28 December, Ms Brown asked the applicant to recheck the monies in the safe. She did so and found them correct. Ms Brown agreed the applicant had not ignored her at the time. Later that day, Mr Costandi called her and told her that the applicant had walked out due to an argument about a late scratching not being done. Mr Costandi told Ms Brown that the applicant was running her down and said that he had told her to stop picking on her as she had done nothing wrong. Ms Brown said she was shocked the applicant felt that way and she ended up crying over the call. 47 Around noon on 29 December the applicant sent Ms Brown a text message which read: Hey Smarty Pants You think your fucking good telling Sam that we are always picking on you. Everyone thinks that you have a big fucking mouth up there and I hope you enjoy all your fucking shifts in the TAB cause you won't fucking last because I will make sure of that dog. 48 She showed the message to her partner, Michael Lamaro and they both went to show Mr Costandi. Her partner wanted to go and see the applicant, but Mr Costandi said "no - leave it". 49 Ms Brown said she reported the message to Mt Druitt Police, but as the message was not life threatening, no action was able to be taken. On 2 February 2005 Ms Brown went back to Mt Druitt Police, on Mr Costandi's advice, and reported the message to a Constable Johnson (Police Report 22788324). 50 In questioning from the Commission, Ms Brown explained that as her phone was on a prepaid plan, text messages would not appear on the phone bill. 51 Mr Michael Lamaro said Ms Brown showed him the text message which read: You big mouth you're a fucking slut for telling Sam you've been picked on. You're a fucking big mouth I hope you enjoy all you're fucking shifts cause you are not going to last. I'm gonna make sure of that you dog.

52 Mr Lamaro felt the message was threatening and it greatly upset his girlfriend. It had come from the applicant because her name and number were displayed on the phone.

53 Ms Jarvis, representing herself, queried if the text message allegedly sent to Ms Brown was so offensive, why hadn't the respondent subpoenaed her phone records. 54 Ms Jarvis referred to Ms Brown's evidence that she had not ignored her when she had been asked to re-count the money and when she said their relationship was pretty good. This evidence demonstrated that Mr Costandi had lied and had fabricated her whingeing about Ms Brown to cover up what actually happened on 28 December. 55 Ms Jarvis believed Mr Costandi's abuse arose because she had confronted him about his gambling on 31 (sic) April 2004. On that occasion he had told her not to log off, put the money in the safe and not lock it. Mr Costandi had re-entered the shop after close and fixed the accounts for the next day. 56 Ms Jarvis submitted that the argument did not occur in the kitchen. It was in the public space. He had told her "you can fucking go now". Customers had heard him. Everything Mr Costandi said about their conversation was "made up" by him. 57 Ms Jarvis sought monetary compensation for her unfair dismissal. Apart from two full weeks of work since her dismissal, she had only been working two days a week. For the respondent

58 Mr Creswell submitted that much of the applicant's evidence was inconsistent, irrelevant or illogical. Her evidence demonstrated that she resented anything which went against what she perceived to be the truth. She had even referred to Mr Costandi gambling "on 31 April", when there are only 30 days in April. 59 On the other hand, Mr Creswell put that the evidence of the respondent should be preferred. Mr Costandi's evidence was clear and definite. The applicant's subsequent conduct was also a relevant consideration for the Commission. This included her offensive and threatening messages to Ms Brown and Mr Costandi. CONSIDERATION

60 In determining this matter three questions arise:

2. If so, was the applicant's dismissal harsh, unreasonable or unjust?

3. If the applicant was unfairly dismissed what relief should be ordered by the Commission? 61 While neither party referred me to any authorities in support of their respective cases, these questions must be answered in the context of the relevant authorities of the Commission, to which I now turn. Was the applicant constructively dismissed? 62 The test of what constitutes a constructive dismissal has been referred to in numerous decisions of the Commission at Full Bench level and consistently applied by single members of the Commission by reference to the most often cited authority found in Allison v Bega Valley Council (1995) 63 IR 68. In that case, the Full Bench said at pp 72 and 73: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and willful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue. In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.

Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.

63 In Ward v Mobile Innovations [2002] NSWIRComm 287 the Full Bench reaffirmed the principles discussed in Allison. At para 4 the Commission said: The Commission has authoritatively addressed the question of constructive dismissal in Allison v Bega Valley Council (1995) 63 IR 68 (although the Full Bench in Allison expressed the need for caution in the use of that expression). Hence, the principles for determining whether a termination constitutes a "constructive dismissal" are now well settled, in our opinion, and do not require revisiting in this appeal. In particular, Allison makes clear (at 72) that the proper approach in this context involves an identification of whether the employer was the true initiator of the termination of employment. Each such inquiry must relate to the facts and circumstances of a particular case. This matters represents no exception in this respect. And at para [6] said: It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of an employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison . 64 The consistent theme running through all the cases which discuss constructive dismissal is that the employer must be found to be the effective initiator of the termination of employment. This arises either through a direct or indirect action taken by the employer which results in the effective termination of the employment. The same consequence might also arise from the inaction or failure to act by the employer which produces the same outcome, such as a forced resignation. 65 While the majority of the authorities on constructive dismissal focus on whether a resignation had been freely given, in this case the applicant vigorously denied she had resigned or abandoned her employment. It was the respondent's case that the applicant had freely resigned or abandoned her employment by walking out of the agency on 28 December 2004. He had done nothing to contribute to her doing so and later accepted her resignation. 66 In these circumstances, the same principles apply as discussed in the above mentioned authorities; namely, was the termination of employment at the initiative of the employer or the employee? One is able to answer this question by reference to the ordinary definition of dismissal. 67 Like its statutory predecessors, the Industrial Relations Act 1996 does not define the term "dismissal." However the approach which has consistently been applied by the Commission is a test of the ordinary meaning of the word "dismiss." In this regard I refer to the helpful definition discussed in Smith v Director General of Education (1993) 51 IR 204. At p219 the Full Bench of the then Industrial Court of New South Wales said: The Industrial Relations Act does not define "dismissal", but, as we have said, s245(5)(a)includes in the concept the Crown's dispensing with the services of an employee. It is to the ordinary meaning of "dismiss" that assistance may be obtained; the Oxford English Dictionary, 2nd ed (1989) defines the word in appropriate respects as follows: "2.a. … To send away (a person); to give permission to go; to bid depart. b. … 3.a. … To send away or remove from office, employment, or position; to discharge, discard, expel. b. ... 4. To deprive or disappoint of or from some advantage." We apprehend no real issue may be taken with the ordinary meaning of the word "dismissal" as so applied to s 245, and, indeed, it seems to us that it is in that defined sense of an employee being sent away from employment that unfair dismissal cases in industrial jurisprudence have been concerned. The terms of s 245 of the Industrial Relations Act would suggest no latent limitation in that respect. Therefore, we find no difficulty in accepting the ordinary meaning of "dismissal" suggested by Brereton J in Ex parte Wurth as being "the termination of services by the employer without the employee's consent"; we would add that where an employee does not freely consent to the termination, understood in a broad sense, then the circumstances may still amount to a dismissal by the employer as a constructive dismissal: see Willis (at 136, 137) , Ex Parte Wurth (at 59, 60) , Re Michaelis Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild Re Dismissal [1979] AR (NSW) 392 at 393 and Western Excavating (ECC) Ltd v Sharp [1978] 1 CR 221 at 225, 226.

68 In applying these tests, the Commission must make findings as to whose version of the conversation of 28 December 2004 is to be believed. In other words, did Mr Costandi force the applicant to leave the workplace or did he "send her away"? 69 It must firstly be said that the applicant and Mr Costandi were the only persons with direct knowledge of what passed between them on 28 December. While there were many customers in the agency, no one who was there at the time, gave evidence in the proceedings. 70 Secondly, the respondent's other witnesses (Ms Rea and Ms Brown) gave evidence of what Mr Costandi told them after the incident. Thus, their evidence is not about what they witnessed, but only of what Mr Costandi said had occurred. In view of my doubts as to Mr Costandi's evidence, Ms Rea and Ms Brown only corroborated what Mr Costandi wanted to portray and not the truth of what occurred. 71 Thirdly, Mr Burke's evidence was that he heard yelling and shouting, but he could not be clear, from his vantage point outside the agency, what was said in the conversation. He did, of course witness the direct aftermath of the incident and said the applicant was upset and frightened and went home. This evidence is consistent with how the applicant said she felt after the encounter and why she left the workplace. 72 I don't think there could be any doubt the conversation was heated. Mr Costandi said the applicant threatened to leave and he had said if she was unhappy, she could leave any time she liked. The impression he gave was that he was calm and businesslike. I do not accept Mr Costandi's version of the conversation. I am satisfied that Mr Costandi was abusive and threatening. He was yelling and called the applicant a "fucking bitch". I further accept that when she offered him two weeks notice if he was unhappy with her work, Mr Costandi said "you can go now". In view of the aggressive and threatening conduct of Mr Costandi it was not surprising that the applicant left the workplace because she was frightened and upset. 73 Some conflicting evidence was given as to whether the argument was in the kitchen or the customer area. In one sense, the location of the argument is immaterial. However, Mr Costandi's strident evidence that the argument occurred in the kitchen raises a further question as to the credibility of his evidence. Mr Costandi and the applicant were the only staff present at the time. It was the applicant's uncontested evidence that the argument lasted 10 minutes. If that was so, it is inconceivable that a crowded TAB agency would be left unattended for that period of time. 74 Putting this aside, it is my opinion that both Mr Costandi's conduct and words amount to a situation in which, either the applicant was forced to leave the workplace, or she was 'sent away' by the employer. In either case, the applicant has satisfied the tests of being constructively dismissed. I am fortified to this conclusion by the proposition that it would make no sense for a woman in the applicant's circumstances to simply abandon her job or resign. 75 Some reliance was placed on Mr Costandi's letter, six hours later, in which he accepted the applicant's resignation and expressed regret and disappointment at her conduct. Plainly, this letter doesn't prove the applicant resigned; only that Mr Costandi wrote a letter saying he believed she did. In my view, this letter was Mr Costandi's reconstruction of the events to suit his own purpose.

Was the applicant's dismissal harsh, unreasonable or unjust? 76 It is now well settled that each of the words - harsh, unreasonable and unjust - have their own discrete meaning and not all three descriptions of a dismissal are necessary for a finding of unfairness. In other words, a particular dismissal might be found to be "harsh" but not "unreasonable" or "unjust". This principle arises from the oft-quoted authority in Byrne & Anor v Australian Airlines Limited (1995) 185 CLR 410 where the expression "harsh, unreasonable or unjust" was considered in an Award clause. In their joint judgment McHugh and Gummow JJ said at p72: It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted. 77 The principle was further discussed in Outboard World v Muir (1993) 51 IR 167 where a Full Commission said: First we deal with the argument for the appellant that the Commission erred by applying the wrong test in connection with the dismissal: 'unfair' rather than 'harsh, unreasonable or unjust' dismissal. We agree with Mr Reitano's submission in this respect that the reference by the Commissioner to "unfairness" did not represent any misunderstanding of the correct test but was merely the use of a shortened form of expression intended to embrace the three relevant words. Whilst we recognise that there may be a natural tendency (recognised in the use even by the advocate for the Company before the Commissioner of the term 'unfair') to use the shortened form, we consider that it is preferable that a member of the Commission utilise the precise words provided by s246, rather than the catch-all heading, particularly when expressing the basis for a finding that a dismissal is within one or more of the heads provided by the section. We take this view because, even though there may be some circularity in the full phrase 'harsh, unreasonable or unjust', we detect scope for variation of meaning which may be critical to the determination of a particular matter and may be obscured by the use of the substitute term "unfair". Different but not wholly dissimilar words, "unfair", "harsh", and "unconscionable", are used in s275, power of the Industrial Court to Declare Certain Contracts Void, of the 1991 Act. In relation to those words, then appearing in s88F of the 1940 Act, the Commission in Court Session ( Perrignon , Cahill and Dey JJ) in A & M Thompson Pty Ltd v Total Australia Ltd [1980] AR (NSW) 399 at 418 Cahill J (delivering a separate judgment) said: The duty of the Commission is to reach a conclusion on the issues of whether the subject transaction is 'unfair', or 'harsh' or 'unconscionable'.

It has been said that those words are a 'tautological trinity' ( Davis v General Transport Development Pty Ltd ) [1967] AR 371) but we prefer to take the view that there is a perceptible difference between the meaning of the term 'unfair' and that of the terms 'harsh' and 'unconscionable'. What is unfair may not be so unfair as to be 'harsh'. But, whether this view be correct or not, once the transaction is found to be unfair the Commission may proceed to exercise its very wide power.

In much the same way, we consider that, while strict definitions of 'harsh', 'unreasonable' and 'unjust' may produce a degree of circularity of meaning, turning on the notion of 'fairness', it may be in a given case that a dismissal may be viewed as coming within the ambit of one of the three adjectives but not the others. To avoid the possibility of misunderstanding or error, the tribunal, when making that primary finding, should state explicitly the basis on which it is made.

78 A Full Bench authority reaffirming the distinction between the three words, and requiring the Commission to make a positive and specific finding on a dismissal is to be found in Bankstown City Council v Paris (1999) 93 IR 209: The Commissioner found that the dismissal by the Council of Mr Paris was 'harsh, unreasonable or unjust'. This phrase, contained within s84, is an important key to jurisdiction and does require some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust, other permutations may apply. In the present case, however, it seems to us that the dismissal of Mr Paris was capable of meeting not one or the other of those descriptions but each of them. Therefore, nothing turns upon the expression adopted by the Commissioner. We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made. 79 More recently, the Full Bench in Williams and Pigment Dispersions Pty Ltd [2004] NSWIRComm 268 said at para 19: The phrase "harsh, unreasonable or unjust" is an important key to the jurisdiction and requires some specificity of finding. As has been observed by the Commission on numerous occasions, a dismissal may be capable of being unreasonable but not harsh, or harsh but not unjust; other permutations may apply. In Bankstown City Council v Paris (1999) 100 IR 363 at 371 Wright J President, Peterson J, Bishop C noted at 373: We would observe that in a case where the conduct of the employer might satisfy one but not all of those heads, a positive and specific finding should be made.

Having regard for the circumstances I have earlier described, I am satisfied that the applicant's constructive dismissal was harsh, unreasonable and unjust.

80 I turn now to discuss the principles of procedural fairness in the context of an unfair dismissal.

81 In Byrne & Anor v Australian Airlines, the High Court concluded that it is clear that the use of an unfair procedure may result in a dismissal being 'harsh, unreasonable or unjust.' To this authority may be added the weight of a number of Full Bench decisions of the Commission. In Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385, the Full Bench said at p389:

We agree with the conclusion of Hill J that procedural issues, that is failure to deal with the matter in a procedurally fair way, may, in certain cases, of themselves, constitute the basis for a determination that a dismissal is harsh, unjust or unreasonable. A failure to adopt a procedure which constitutes a breach of 'an essential prerequisite to, or inviolable limitation on, the exercise of the employer's right to dismiss' or a failure to afford procedural fairness which causes a 'substantial and irrevocable prejudice to the employee' will often vitiate the decision of an employer and warrant, in itself, a determination that the dismissal was harsh, unreasonable or unjust (and hence, establish the basis for a remedy under the Act). Further, a decision to dismiss made upon the basis of procedures which are unfair and where an innocent explanation or other appropriate explanation is reasonably available will normally constitute a firm basis for a determination that a dismissal, so effected, is harsh, unreasonable or unjust. and later, at page 390:

While the findings of the Commission in Buckman focus on the issue of warnings, the observations apply also to broader tenets of procedural fairness contemplated in s88 and to matters such as those raised in these proceedings. We agree that there is no obligation in the Act to follow any particular procedure when effecting a dismissal. However, a failure by an employer to adopt appropriate procedures when effecting a dismissal, or a failure to follow procedures prescribed in an industrial instrument, or in procedures laid down administratively by an employer, may be properly taken into account by the Commission as part of the consideration of an application brought under s84. Further, as we have noted, where procedures are specified in an industrial instrument or by administrative action, a failure by an employer to apply, or to properly apply, those procedures may in appropriate cases, of itself, support a finding that the dismissal was harsh, unreasonable or unjust .

82 The above reference to Buckman is Buckman v Burdekin (1998) 85 IR 415. In that case, the Full Bench said at p418: Section 88 of the Act contains a number of matters which may, if appropriate, be taken into account in considering whether a dismissal was harsh, unreasonable or unjust. There is, of course, no obligation imposed by the Act upon employers to give an employee a warning prior to effecting a dismissal. However, a failure to give prior or timely warnings is a matter which properly may be taken into account as part of the consideration of general issues of substantive and procedural fairness. See also Wilson v Department of Education and Training (2000) 100 IR 1; Byrne & Anor v Australian Airlines; Burke v McGirr (1995) 87 IR 54; Oswald v NSW Police Service (1999) 90 IR 42; Johnson v Catholic Education Office, Diocese of Parramatta (1998) 87 IR 57; Abboud v The State of New South Wales (Department of School Education) (1999) 92 IR 32, Antonakopoulos v State Bank of New South Wales and D & R Commercial Pty Ltd v Flood (2002) 113 IR 344.

83 In Humphries v Cootamundra Ex-Services and Citizens Memorial Club Limited [2003] NSWIRComm 211 a Full Bench of this Commission stressed the importance of ensuring that an employee is afforded procedural fairness in the process leading up to a decision to dismiss an employee following allegations of serious misconduct. While this is not a case involving serious misconduct, the principle is relevantly applicable in deciding this matter. The Full Bench said at para 118 of the decision: This matter demonstrates the very real problems that may arise where there is a failure to afford procedural fairness. The obligation upon parties to ensure procedural fairness is not a hollow one and must not be construed as having only technical significance. As the circumstances in this case demonstrate and the provisions of s88 of the Act establish, such considerations may have a very real impact on unfair dismissal proceedings and are of significance in identifying whether a termination was harsh, unreasonable or unfair. These observations are unremarkable. They reflect the statutory instruction found at s88 of the Act and the long held authorities which identify the matters the Commission may take into account when determining an unfair dismissal claim. These matters include, but are not limited to, whether, (i) a reason for dismissal was given.

(iii) an applicant was given an opportunity to make out a defence or give an explanation of his or her behavior.

(iv) any warning of unsatisfactory performance was given.

(v) the applicant sought, but was refused reinstatement or reemployment.

It is to be noted that the Commission may take other matters into account which it considers relevant (s88(f)). 84 From a proper examination of the facts and circumstances disclosed in this case, I believe the following findings can be made:

1. The applicant's constructive dismissal came without warning.

2. The applicant was never informed that her performance or conduct was unacceptable; let alone warned that she would be facing dismissal for any performance or conduct issues.

3. There was no basis for Mr Costandi to conclude that by questioning Ms Brown's work, the applicant was whingeing or interfering in how he ran his business. On the contrary, it is to be noted that Ms Brown had said that their working relationship was good.

4. It was not surprising that the applicant felt threatened and frightened by Mr Costandi's abusive and aggressive behaviour and was forced to leave the workplace.

5. Mr Costandi's haste in accepting the applicant's purported resignation demonstrated his keenness to ensure the applicant had been the master of her own destiny and he had done nothing to force her to walk out. 85 The only conclusion to be drawn from the aforementioned findings is that the applicant's dismissal was harsh, unreasonable and unjust, both substantively and procedurally, within the meaning of Pt 6 ch 2 of the Act. I find accordingly. 86 One further matter is deserving of comment. In the course of the proceedings, there was considerable emphasis placed on an offensive text message allegedly sent by the applicant to Ms Brown. 87 The applicant strenuously denied sending such a message. While Mr Costandi claims he saw the message and both Ms Brown and her partner recall what the message said, no records could be produced which disclosed that the applicant sent any SMS text message to Ms Brown on that day from her mobile phone; let alone an offensive message. I have some doubts that any such message was sent. Moreover, it is inconsistent with Ms Brown's own oral testimony that she and the applicant got on well. In any event, even if this was true, it occurred after the termination of employment and involved two persons outside of work hours. 88 On the other hand, I do accept that the applicant did text and phone Mr Costandi after her dismissal. While these communications were regrettable, they obviously reflect the applicant's concern as to what Mr Costandi might say about her. Indeed, these concerns were seemingly well justified having regard for what Mr Costandi accused her of during the conciliation conferences (see par 23). What relief should be ordered? 89 In view of the open and continued hostility between the parties, as disclosed in the conciliation conferences before Tabbaa C and, to a lesser extent, during these proceedings, reinstatement or reemployment of the applicant would, in my view, not only be impractical, but totally undesirable. 90 This is an obvious case for a compensatory order to be made in the applicant's favour. In the exercise of my discretion, pursuant to s89(5) and (6) of the Act, I have taken into account the applicant's age, period of service, her attempts at finding alternative employment, the conduct of the respondent and the harshness of the dismissal. I determine compensation of an amount of remuneration equivalent to 12 weeks' wages. In calculating this amount, the applicant said she was paid alternate weeks of $480 and $560. As there was no challenge to these figures, I propose to average them to an amount of $520 per week. ORDERS

91 The Industrial Relations Commission of New South Wales orders that:

1. Pursuant to s89 of the Industrial Relations Act 1996, the respondent, Mr Sam Costandi, shall pay to the applicant, Ms Leanne Jarvis, an amount of $6,240.

2. The amount in order (1) shall be paid within 21 days.

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