Allison v Bega Valley Council - [2000] NSWIRComm 227 - NSWIRComm 1996 case summary — Zoe

NSWNSWIRComm

Allison v Bega Valley Council

[2000] NSWIRComm 227

Industrial Relations Commission (NSW)|1996-07-03|Before: Sams DP, Peterson Schmidt JJ, Schmidt J, Walton VP, Mrs J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1996-07-03

Before

Sams DP, Peterson Schmidt JJ, Schmidt J, Walton VP, Mrs J

Source

Original judgment source is linked above.

Judgment (56 paragraphs)

[1]

CITATION : Shankar and Neumo Packaging Systems Pty Ltd [2000] NSWIRComm 227 APPLICANT PARTIES : Nand Kishore Shankar RESPONDENT Neumo Packaging Pty Ltd FILE NUMBER: 6891 of 1999 CORAM: Sams DP Termination of employment - unfair dismissal - actions of employer and employee - resignation of employee - whether applicant dismissed - jurisdiction of Commission - principles considered. CATCHWORDS : Held, applicant not dismissed - no action by employer to effect dismissal - applicant refused reasonable instructions - bona fides of applicant questioned - applicant resigned - lack of jurisdiction - application dismissed - notice of motion as to costs. LEGISLATION CITED : Industrial Relations Act 1996 s84 Allison v Bega Valley Council (1995) 63 IR 68 McCabe v New South Wales Police Service (unreported) Full Commission, Matter IRC3112 of 1994, 3 July 1996 Bayley Trading Co and NSW Sales Representatives & Commercial Travellers Guild, 1979 AR 392 Mohazab v Dick Smith Electronics (1995) 62 IR 200 Western Excavating (ECC) Ltd v Sharp, Lord Denning, CASES CITED : 1978 ICR 221 Hall and Australian Power Industries Pty Ltd (unreported) Sams DP, Matter IRC4615 of 1998, 12 March 1999 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 Claric 218 Pty Ltd t/as Sanity Music v Meldrum, 91 IR 296 St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson Schmidt JJ, O'Neill C, Matter IRC5932 of 1998, 28 May 1998 Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999 Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 HEARING DATES: 07/17/2000 DATE OF JUDGMENT: 11/10/2000

[2]

[10]

THE EVIDENCE 10 The applicant provided two written statements in which he outlined the circumstances of his alleged dismissal on 3 December 1999. He challenged the respondent's claim that there was no dismissal. 11 The applicant said that on 3 December after he raised a number of issues with Mr and Mrs Mahoney, including wanting a cash cheque for his wages, both of them became aggravated and aggressive and Mr Mahoney told him to "clear the drawers and leave the premises". 12 Mr Mahoney phoned him at 6.30 that night and sought a meeting at 3.00pm on Monday 6 December when Mrs Mahoney wasn't at the office. The applicant asked for time off due to the stress he was experiencing at work. This was refused. While claiming to be dismissed, he later said that he had been forced to resign. 13 In his second statement (Ex'2'), the applicant identified a number of complaints he had with the company. He said that he had to take a second job and the company was "never flexible in accommodating his work arrangements or university course". In oral evidence, the applicant acknowledged that throughout his employment his hours varied with the agreement of the employer to suit his second job and his educational studies. His main complaint concerned the method of paying wages. The company had moved to electronic funds transfer and Mrs Mahoney was advised that each individual transfer cost $35 in bank fees. On 2 December the applicant had contacted the bank and was told the transfer fee was $1.50. The applicant did not believe Mrs Mahoney's advice and she told him she would gather further information to convince him. 14 The next day, Mr Mahoney gave the applicant a non-negotiable cheque, which was the usual form of payment. The applicant said he needed cash. He said this request made Mr Mahoney "very violent", snapping his fingers and stomping his feet. The applicant said he felt frightened and nervous, as he tried to explain he needed cash. Mrs Mahoney became involved and when the applicant told her she should have got back to him yesterday, about the bank charges, she shouted "Don't you dare speak to me like that. This is gross misconduct". Mr Mahoney then told him to go home, using the words "clear the drawers". The applicant asked if he was coming back on Monday and Mr Mahoney replied "I don't know, I will contact you and let you know". 15 Before leaving the premises, the applicant made two trips to his car, showing Mr Mahoney what he was removing. Mrs Mahoney wrote him a cash cheque and handed him a memo accusing him of wrongfully installing CAD software equipment. 16 At 9.30am on Monday 6 December, the applicant phoned Mr Mahoney to say he had a prior commitment at 3.00pm. He asked if he could come in earlier. He said Mr Mahoney rudely refused, citing his wife's presence in the office. 17 The applicant said he would come in and hand over the keys and collect the rest of his belongings. Mr Mahoney agreed and when he arrived at around 11.15am, the applicant told Mr and Mrs Mahoney he had been dismissed. Mr Mahoney said he should come to the meeting at 3.00pm, but the applicant said he had another appointment. Mrs Mahoney said that he had abandoned his employment and the applicant replied that he would "take this matter to Industrial Relations". 18 The applicant received a letter dated 6 December in which the company indicated that he had been stood down with full pay until a meeting was held to discuss the matter. He was told to attend for work and a failure to do so, by noon on 9 December, would be regarded as his abandonment of employment. 19 A meeting was held on 10 December and a transcript taken (annexure G to Ex'C'). No resolution was reached and the applicant delivered a letter to the company the same day indicating he did not wish to return to work.

[34]

Was the applicant dismissed? Submissions on the law Submissions on the facts Submissions on credit Application of the law to the facts of this case Was the dismissal "unfair, unreasonable or unjust"? Circumstances of the dismissal Mitigating circumstances Orders sought 52 Ms Devine submitted that, on his own evidence, the applicant had not been able to demonstrate that he was dismissed. Consequently, the Commission does not have jurisdiction to hear, and determine the applicant's claim. 53 There is evidence from four witnesses to corroborate this conclusion. The evidence is that between 3 and 10 December, the respondent continued to act as the employer and the applicant continued to act as an employee; accepting directions from the employer, attending meetings and corresponding with the employer. 54 The actions of the employer, Ms Devine said, were perfectly reasonable and understandable, particularly in wishing to defuse a heated situation on 3 December by sending the applicant home. 55 Despite continued provocation, the employer endeavoured to discuss the matter with the applicant and resolve it. The employer's behaviour was consistent with it wishing the employment relationship to continue 56 The applicant continued to insist he had been dismissed despite the employer insisting he was not. The applicant had even decided, on 6 December, to lodge an unfair dismissal claim. 57 Ms Devine referred the Commission to a number of decisions which have discussed the notion of constructive dismissal - Allison v Bega Valley Council (1995) 63 IR 68, McCabe v New South Wales Police Service (unreported) Full Commission, Matter IRC3112 of 1994, 3 July 1996, Bayley Trading Co and NSW Sales Representatives & Commercial Travellers Guild, 1979 AR 392, Mohazab v Dick Smith Electronics (1995) 62 IR 200, Western Excavating (ECC) Ltd v Sharp, Lord Denning, 1978 ICR 221 and Hall and Australian Power Industries Pty Ltd (unreported) Sams DP, Matter IRC4615 of 1998, 12 March 1999. 58 The applicant had not raised constructive dismissal until his 31 March statement. It was not mentioned in his application. She said. it was invented by him at the last minute. 59 Ms Devine submitted that the applicant had engaged in unacceptable behaviour, wrongly accusing his employer of lying. Such behaviour amounts to misconduct. 60 Ms Devine submitted that the applicant's position was inconsistent and unexplained. He firstly said he was dismissed on 3 December, then that the dismissal was confirmed on 6 December. He then offered his forced resignation on 10 December, citing a number of grievances. These grievances had never been raised with the employer and one dated back some four years. 61 She said the applicant's evidence was inconsistent, exaggerated and unsubstantiated. 62 The applicant, she said, was considering terminating his employment at least on 2 December, when he raised the matter of pro rata long service leave. 63 The applicant had not discharged the onus of proving he had been directly, or constructively dismissed. The respondent's conduct between 3 and 10 December was consistent with a desire of maintaining an ongoing employment relationship. It was reasonable that the employer should seek a meeting with the applicant to resolve any problems. However, the applicant's employment was terminated at the applicant's initiative, as a consequence of his insistence that he had been dismissed. This was despite all the evidence to the contrary, and his refusal to resolve his grievances with the employer. 64 As a secondary submission, Ms Devine put, that, even if there was a dismissal, such dismissal was justified by the applicant's behaviour, conduct and past performance. The respondent made repeated efforts to discuss the applicant's grievances and gave him an extended opportunity to defend himself. He failed to do so. In any event, the applicant was paid $2,800 in pro rata long service leave - to which he was not entitled - and which should be taken into account. 65 At no time did the applicant seek reinstatement. This is a matter the Commission should consider pursuant to s88(e) of the Act. 66 Finally, Ms Devine made an application for costs, citing the exaggerated, inconsistent and unsubstantiated claims of the applicant and his stubborn insistence that he had been dismissed. She said the application was frivolous and vexatious and costs should be ordered pursuant to s181(2)(c) of the Act.

[35]

Was there a dismissal? 67 The applicant made confusing and contradictory claims as to whether he was dismissed or forced to resign. He was unclear as to what date he alleged he was dismissed. Notwithstanding this confusion, the issue to be determined in this case is simply whether the applicant's termination of employment constituted a "constructive dismissal". 68 If, as Ms Devine contends, there was no dismissal - constructive or actual - it follows, de juris, that there is no jurisdictional basis for a claim of relief from unfair dismissal. 69 The principles the Commission is to apply in these circumstances have been variously described as "termination at the employer's initiative" or "where the conduct or actions of the employer is the real and effective initiator of the termination of employment" or "where the conduct of the employer has compelled or unduly influenced the employee to resign". 70 The oft quoted authority for these principles - particularly as it is pertinent to a forced resignation - is Allison v Bega Valley Council. At p72-73 of the decision: 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 wilful 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?