Allison v Bega Valley Council

Industrial Relations Commission (NSW)|2000-04-14|Before: Sams DP, Walton VP, Schmidt J, Schmidt JJ

CITATION : Aumeer and Moran Health Care Group [2003] NSWIRComm 367 APPLICANT PARTIES : Sheik Mahmad Rafick Aumeer RESPONDENT Moran Health Care Group FILE NUMBER: 1906 of 2003 CORAM: Sams DP Termination of employment - unfair dismissal - Director of Nursing - applicant's grievance - applicant's resignation - whether there was any alternative to resignation - whether applicant's resignation at the employer's initiative - applicant stressed - psychological injury - constructive dismissal - principles discussed. CATCHWORDS : Held, applicant's demands unreasonable - grievance responded to - applicant used resignation for another purpose - no medical evidence at relevant time - applicant's resignation given of his own free will - no pressure to resign - no constructive dismissal - no jurisdiction - overpayments - application dismissed. Aged Care Act 1998 (Cth) LEGISLATION CITED : Industrial Relations Act 1996 (NSW) Nursing Homes Act 1988 (NSW) Allison v Bega Valley Council (1995) 63 IR 68 Bates v Gundagai District Services Club (unreported Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000) Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 Britton v Riverstone Public School (unreported, Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999) Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296 Clark v Pittwater RSL Club Ltd (1998) 84 IR 309 CASES CITED : Goren and Linkware Australia Pty Ltd [2002] NSWIRComm 336 Police Service of New South Wales v Batton (2000) 98 IR 154 St Vincents Hospital Sydney Limited v Harris (unreported, Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998) Ward v Mobile Innovations [2002] NSWIRComm 287

APPLICANT Mr R Aumeer, unrepresented LEGAL REPRESENTATIVES: RESPONDENT Ms N Town, Moran Health Care Group

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 7 November 2003 Matter No IRC03/1906 Sheik Mahmad Rafick Aumeer and Moran Health Care Group Application by Sheik Mahmad Rafick Aumeer re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 367

1 Mr Sheik Mahmad Rafick Aumeer (the 'applicant') commenced employment on 8 April 2002 as the Director of Nursing (DON) at Bossley Park Nursing Home, a residential aged care facility operated by the Moran Health Care Group (the 'respondent'). He was employed under the terms of the Nursing Homes, &c., Nurses' (State) Consolidated Award (308 IG 45).

2 The applicant resigned from his employment in a letter dated 21 March 2003. The resignation was said to be effective from that day. Shortly stated, the applicant claimed that he was forced to resign after the respondent failed to address a workplace grievance he had lodged on 6 March 2003.

3 Curiously, the applicant continued to be paid until the 7 May 2003 - the date of the conciliation proceedings before the Commission. The respondent said this had arisen through an administrative oversight. No one in management actioned the applicant's resignation with the payroll office. In any event, the respondent made no claim to any overpayments.

4 The applicant's sense of grievance was illustrated by the strength of the language he used in his letter of resignation of 21 March 2003. I quote the letter in full: Dear Ms Parry Further to your letter to me dated 20 March 2003, which I received by fax this morning, I have to advise that the contents of your letter falls very short of my demand outlined in my email to Ms Jan Hanley.

I reiterate that I required the comments made in the letter to me from Mr Doug Moran and the letter to the NSW Health Department by Mr Mark Moran be retracted unconditionally. I am very disappointed that my stipulated timeframe of a week to respond to my grievance was totally ignored. It is now 10 days since the expiry of the deadline of Tuesday 11 March 2003.

In your letter, 3rd paragraph, you make reference to quote: "… investigate any complaints or referrals that may indicate areas of non-compliance", unquote. I am interested in the processes you underwent and the findings which led you to the conclusions, stated in your letter to me dated 24 February 2003.

Furthermore, in your conclusion, your suggestion to quote: "… review SOME of he (sic) terms of our latter dated 24 February 2003" [emphasis added] unquote, is unsatisfactory and unacceptable.

In view of the above, I believe that Moran Healthcare is treating me with contempt and therefore you leave me with no choice but to resign my position of Director of Nursing at Bossley Park Nursing Home, effective from today (date as above).

5 This decision deals with an application lodged by the applicant on 4 April 2003, under Pt 6 Ch 2 of the Industrial Relations Act 1996 (the 'Act'). In his application, the applicant claimed that he had no alternative but to resign. He had therefore been constructively dismissed and his dismissal was unfair.

6 Not surprisingly, the respondent maintained that the applicant resigned without giving it an opportunity to properly address his grievance. There had been no pressure on him to resign and he did so of his own free will.

7 It followed, the respondent argued, that as there was no dismissal the Commission was without jurisdiction to deal with the matter. Although the evidence traversed in this case covered all of the circumstances surrounding the applicant's termination of employment, it is the jurisdictional issue which will be determined by this decision.

8 Before turning to the evidence, the Commission notes that the applicant's claim was unable to be settled in conciliation proceedings on 7 May 2003. A finding of unsuccessful conciliation was made on that day. The applicant appeared for himself in all the proceedings and Ms N Town from the Moran Health Care Group appeared for the respondent.

9 The background to this matter was usefully set out in the evidence provided by both parties. I note that the relevant facts and circumstances surrounding the applicant's termination of employment were largely uncontested. I propose to offer a brief summary.

10 Ten employees of the Bossley Park Nursing Home signed a petition to Moran's Head Office on 29 August 2002. They complained about a "severe decline and deterioration of standards and working conditions at Bossley Park Nursing Home under the current management" and listed a series of particular complaints. The applicant was not one who signed the petition.

11 Seemingly arising from this complaint, an officer of the NSW Health Department, Ms Debbie West visited the Bossley Park Nursing Home on the 25 September and 17 October 2002. Ms West identified a number of maintenance concerns at the facility and issued specific instructions to ensure the nursing home complied with Department of Health regulations.

12 On 29 January 2003, Mr Jorge Rodrigues, the respondent's Aged Care Administration Manager, received a letter from the Department of Health in which a number of concerns were expressed about environment, maintenance, incidents and accidents issues, resident care issues, infection control and documentation. It also made reference to an alleged assault on a resident by the applicant.

13 Mr Rodrigues sent the letter to the Regional Manager, Ms Jan Hanley, who, in accordance with the usual procedure, prepared a response with the assistance of the Director of Nursing. (the applicant)

14 The applicant claimed that his input to the response was not appropriately reflected in the draft response prepared by Ms Hanley or in the tidied up response finalised by Mr Rodrigues. The final document was signed by Mr Mark Moran, the Operations Director for Moran Health Care Ltd.

15 The applicant claimed that the response to the Department of Health placed him solely responsible for the defects identified by Ms West and that he had been instructed to remedy the defects. On 24 February, in a letter from Mr Moran marked private and confidential, the applicant had been given various instructions. It is relevant to quote the first part of the letter which was said to have caused the applicant so much angst: We refer to a letter from the NSW Health Department, dated 22 January 2003 and addressed to the licensee. The nature of the allegations could not be more serious and many of the issues reflect on your management of the home. You are requested, as a minimum, to ensure that the following matters as both raised in our response to the Department and as contained in this letter to you are both addressed and managed on an ongoing basis. Key matters raised in the Department's correspondence regarding Bossley Park Nursing Home are: i. environment; ii. maintenance issues; iii. incidents and accidents issues; iv. resident care issues; v. infection control, and vi. documentation A copy of our response, dated 18 February 2003, is attached.

As the facility's Director of Nursing, you are responsible and accountable for ensuring compliance regarding the above issues.

16 On 6 March, the applicant replied to Ms Hanley making a number of ultimatums. I quote this letter in full: Dear Jan

In an endeavour to maintain the integrity of the system of communication in place in any bureaucratic and hierarchical system, I am addressing my concern to YOU, as my line manager and NOT the author and originator or the signatories to the letters referred to above.

Further to our multiple discussions on the content of the letter addressed to me from Mr Doug Moran, Chairman, dated 24 February 2003, I advise that I am very concerned and distressed about the tenor of the letter.

I believe that the information and instructions contained therein cannot be substantiated.

As you appreciate, on receipt of the report from NSW Health Department, I drafted an appropriate response which I duly discussed with you and we agreed on the formulations. However, the letter sent to the NSW Health Department does not reflect in any shape or form the information we agreed upon.

I have to say that since I received this letter, Bossley Park Nursing Home has been inundated with numerous deliveries of items ordered many months ago - and I find that difficult to comprehend given the fact that I have been advised on numerous occasions that there was no money.

I feel very aggrieved about the content of the letter and am even more concerned about the one sent to NSW Health. I believe that the letters have caused significant damage to my professional career and prospects within the area of nursing management.

I would therefore request that you request from the originator of the letters, a complete and total withdrawal of the letter and advise the NSW Health Department of the same, forthwith.

I require that this be done by no later than the close of business Tuesday 11 March 2003.

I look forward to hearing from you in due course and no later than the above date.

17 Having not heard by the 11 March, the applicant wrote to Mr Doug Moran on 17 March in these terms: Further to my email of grievance to Ms Jan Hanley dated (sic), this is to advise that I wish to proceed to the second stage of the grievance process for the following reasons:

i. I understand that Ms Jan Hanley, Metropolitan Regional Manager, has forwarded my letter of grievance to Ms Dawn Parry, Operations Manager for her to respond to.

ii. My concern and grievance outlined in the email has been ignored by Ms Dawn Parry. She has failed to acknowledge my letter and has remained silent on the issues raised.

iii. Ms Dawn Parry has not made contact with me, verbally or in writing.

iv. Ms Dawn Parry has not responded to my grievance by the due date of 11 March 2003. In view of the seriousness of the issues raised in the letters to me and the NSW Health Department, I believe that they have to be addressed promptly and as a matter of urgency.

I, therefore, have no other option but to raise the matter with you - who is the signatory of the letter referred to above.

I have to advise that this situation has resulted in increased stress to me and my family, especially since the tenor of the letter will have far-reaching negative consequences for me professionally, financially and personally. I look forward to receiving your advice before Friday 21 March 2003.

18 Ms Dawn Parry, Operations Manager, subsequently replied in the following terms on 20 March: Dear Mr Aumeer We refer to our letter dated 24 February 2003 and a subsequent e-mail you sent to Mrs Jan Hanley dated 6 March 2003. Mrs Hanley has forwarded the e-mail to the attention of the undersigned. We apologise for the unintentional delay in addressing the concerns you have raised in the abovementioned e-mail. As you appreciate, the Approved Provider for Bossley Park Nursing Home, Moran Health Care (Australia) P/L has a number of legal obligations it must comply with. Part of its obligation is to investigate any complaints or referrals that may indicate areas of non-compliance. The tenor of our letter dated 24 February 2003 is a reflection of the circumstances at the time it was written. The Approved Provider had then a number of complaints and issues raised in relation to Bossley Park Nursing Home that indicate areas of non-compliance.

Following your request, we agree to review some the terms of our letter dated 24 February 2003. You will be contacted as soon as the review is finalised. 19 The applicant claimed that this response was vague and did not directly address his grievance. His resignation followed the next day.

20 The applicant provided a detailed statement in which he made a number of claims and responses to the respondent's correspondence with the Department of Health.

21 The applicant claimed that the respondent's letter to the Department was objectionable and unacceptable because it had blamed him directly and personally for the defects at the nursing home. This blame had been confirmed in the letter sent to him by the respondent.

22 The applicant acknowledged that he had been responsible for overseeing the statutory requirements under the Nursing Home Act and Regulations.

23 The letter to the Department had caused him frustration, stress and depression for which he had sought medical advice and counselling. He believed that the letter was an attack on his professionalism and character and that he had been made a scapegoat for the failures of higher management.

24 In cross examination, the applicant agreed the grievance procedure contained a number of steps in order to reach an agreed negotiated outcome. He conceded that Ms Parry's response dealt with part of his grievance (to review the issues) and that the procedure had not been completed. However, he claimed Ms Hanley had tried to talk him out of sending a letter to Mr Doug Moran, even though Ms Parry would not speak to him.

25 The applicant said he received no response to his resignation. He claimed that Ms Hanley rang him that day and asked if he would be working two weeks notice. He said he had agreed to do so despite his letter indicating he intended to resign immediately. He agreed he was paid up to 7 May. However, he believed that this was because his resignation may not have been accepted.

26 The applicant claimed that the letter to the Department of Health without input from the DON and the Regional Manager was unprecedented and unreasonable. He said the response to the Department did not reflect his own response which had been prepared and discussed with the Regional Manager. He agreed that he had not seen Ms Hanley's report to Mr Rodrigues.

27 The applicant generally stated that the issues identified by Ms West were not his responsibility - but were those for higher management, particularly the Regional Manager. He said he had raised a number of these issues before, but had met resistance from management. The applicant agreed, in a point by point analysis, during cross examination, that not all of the issues identified by the respondent's letter blamed him for the identified defects.

28 The applicant believed that he had performed his duties "above and beyond the call of duty". He claimed he was required to work overtime at ordinary time, contrary to the award. However, in cross examination, when shown his own timesheets, it was established that the award had not been breached. Due to an acute shortage of registered nurses, he said he was required on numerous occasions to undertake nursing duties. He believed that without his input the nursing home would not have been accredited for three years on 16 December 2002.

29 The applicant claimed that the respondent's handling of his grievance was objectionable and caused him psychological injury. Specifically, he said the response was inadequate and he wanted a full retraction of the "unfounded and unsubstantiated allegations." His distress had compromised his ability to function as the DON. He had changed in his attitude towards staff, becoming taciturn and abrasive. As a result of his stress, frustration and anger he had resigned. However, he now regretted his decision.

30 The applicant said that after he had disciplined a staff member in August 2002, a staff petition was sent to the Commonwealth and State Health Departments and the respondent's Head Office. An anonymous letter was sent to the son of a resident accusing the applicant of assaulting the resident. This letter was also sent to the various authorities. The applicant had not been charged with assault. Nor had he had his nurses' registration suspended or revoked.

31 Despite all of these issues, the nursing home had received its accreditation. The applicant wished to clear his name, but the respondent gave him no support or assistance. He said that in all the responses to the allegations and issues raised by the Department of Health and the Aged Care Accreditation Agency, the respondent did not claim that he was responsible for the mismanagement. He now believed it was strange that his professionalism, integrity and character were being questioned.

32 Ms Jan Hanley was summonsed to give evidence. Ms Hanley has worked for the Moran Health Care Group for twenty-five years. She was the Regional Manager at the relevant time. That position has now been phased out.

33 Ms Hanley regarded the letter sent to the applicant by Mr Moran on 24 February 2003 as "very unfair and very unjust." She said that at the time the applicant was appointed, there had been an exodus of registered nurses and that the applicant had spent many days filling in as a registered nurse. Ms Hanley believed there had been a lot of positive improvements made at the home while the applicant was in charge. Ms Hanley noted that the nursing home had received its three year accreditation on 16 December 2002.

34 Ms Hanley believed that the Department of Health's report may have been triggered by the staff petition in August 2002. She felt if the issues had been serious, a report would have been prepared much quicker.

35 Ms Hanley agreed it was usual procedure, where complaints are made, for the DON to be asked to prepare a draft response. On this occasion, the format of the response was changed by senior management. Ms Hanley said that she had never seen a response to the Department which had frequently used the expression "the DON has been instructed." It was usual for corrective action to have been implemented before the response was sent.

36 Ms Hanley received the applicant's grievance and handed it directly to Ms Parry. While the applicant had asked her about it, she had believed it was inappropriate for her to handle the matter. She agreed that a two to three week period was reasonable before hearing something about a grievance.

37 Ms Hanley said that when she received the applicant's resignation she had sent it to Ms Parry. Ms Parry had told her that management was not going to write back to him. She could not recall if Ms Parry asked her if the applicant was intending to work two weeks notice. Ms Hanley did not know if the applicant turned up for work on Monday 24 March. The applicant's evidence was that he went to the medical officer the next day and a medical certificate was provided. Ms Town agreed a medical certificate had been provided. Ms Hanley said that if a DON is off sick, the Deputy should contact the Regional Manager or Ms Parry.

38 Ms Hanley was asked about the allegation against the applicant that he had assaulted a resident. She said when she reviewed the records and incident reports there was nothing to suggest a person had been assaulted. The Commonwealth Department had reported the matter to the police. She had been interviewed. The Department had a copy of the police report, but were not at liberty to release it.

39 Ms Hanley agreed that this allegation, the staff petition and the nursing homes' accreditation resulted in a highly stressful situation. She believed the applicant was tired, angry and stressed. She had never suggested the applicant should resign. Indeed, she had tried to talk him out of resigning. However, she said that if someone in the role of DON makes a decision to resign, they know exactly what they are doing.

40 In cross examination, Ms Hanley said that the normal requirement was to make sure that the pay office was sent a copy of the resignation. It had not happened in this case. She could not recall if she had been asked to contact the applicant after his resignation.

41 Mr Jorge Rodrigues is the respondent's Aged Care Administration Manager. He is directly responsible to Ms Parry. He has been employed by the respondent since September 1991. Mr Rodrigues is the contact for any complaint made by external parties against the licensee of any of the Moran Health Group facilities. It is his responsibility to co-ordinate responses to any complaints or allegations of breaches of the Aged Care Act 1998 (Cth), the Aged Care Principles (Cth), the Nursing Homes Act 1988 (NSW) and the Nursing Homes Regulations.

42 Mr Rodrigues said that it was custom and practice for any complaints to be sent to the Regional Manager who would prepare a draft response in consultation with the relevant DON within 10 days. Mr Rodrigues then settles the response with the Operations Director, Mark Moran. Ms Parry also confirmed this custom and practice. This was the process adopted with the complaint from the Department of Health dated 29 January 2003 in respect to Bossley Park Nursing Home.

43 Mr Rodrigues added that it was his responsibility to ensure that any response to allegations complied with the appropriate Federal and State legislation. This might involve redrafting the response from the Regional Manager. Sometimes the redrafting might involve changing the language and substance of the response from the Regional Manager. Mr Rodrigues said that if a response was totally inappropriate, further feedback would be sought. However if it only concerned modifying the draft, he would do so without necessarily referring the draft back to the author.

44 Mr Rodrigues said he had not seen the applicant's original draft response. He had worked only from what Ms Hanley had provided to him. Ms Hanley's response had since been deleted from the email mail box as there are many emails sent from forty-eight sites across Australia - it was not practical to hold all emails.

45 Ms Dawn Parry is the respondent's Operations Manager. She has worked for the respondent since May 2002. Ms Parry is the line manager for all DONs in all aged care facilities operated by the Moran Health Care Group. Each area used to have a Regional Manager. Ms Hanley was the Regional Manager for the Sydney metropolitan area until July 2003.

46 Ms Parry said that the response to the Department of Health did not blame the DON for the areas of non-compliance to the required standards. The matter was however, treated very seriously. Ms Parry produced a copy of the Moran Health Care Group Staff Handbook and a copy of the grievance procedure under the relevant Award.

47 Ms Parry said she had received the applicant's letter of 6 March and treated it as a grievance. She had discussed the matter with Ms Hanley and the Human Resources Department. Due to time constraints she had not responded to the applicant until 20 March. This was because she had been conducting audits and inspections in various facilities across Australia.

48 Ms Parry received the applicant's resignation the following day. To the best of her knowledge the applicant did not return to work. Ms Parry did not take any administrative action with the resignation letter. It was the Regional Manager's responsibility to finalise the necessary paperwork and advise the payroll office.

49 On 7 May 2003, when it was discovered that the applicant had not been taken off the payroll, the applicant was provided with all outstanding entitlements up to 21 March 2003.

50 The applicant submitted that at the time of his resignation he was under a lot of stress. The nursing home had undergone an accreditation process and there had been allegations of assault, investigations by the Police, the Department of Health, Health Care Complaints Commission and the Nurse's Registration Board. To this day, he had heard nothing of the Police investigation.

51 The applicant believed that he had been unfairly accused of mismanagement of the nursing home. He said that at no time was he given an opportunity to discuss with senior management the nature of his grievance or how to resolve it. He believed that there was "buck passing" of his grievance. After fourteen days, he still hadn't received a satisfactory response.

52 The applicant said that when he continued to be paid he assumed his resignation had not been accepted.

53 The applicant sought reinstatement to his former position.

54 Ms Town submitted that the applicant initiated his own termination of employment by resigning on 21 March, the same day he received a response from Ms Parry to his grievance. It was clear, Ms Town said, that the grievance process had not been finalised before the applicant resigned of his own accord. See Allison v Bega Valley Council (1995) 63 IR 68; Ward v Mobile Innovations [2002] NSWIRComm 287 and Goren and Linkware Australia Pty Ltd [2002] NSWIRComm 336. As the respondent was seeking to resolve the grievance, it could not possibly be found to have initiated the termination of employment.

55 Ms Town submitted that reinstatement would be impractical, as the position of DON has been filled. Should the Commission find that the applicant was constructively dismissed, and the dismissal was unfair, minimal compensation should be awarded. The applicant had only eleven months employment and had been over paid seven or eight weeks pay.

Consideration Principles of Constructive Dismissal

56 There can be no doubt that the applicant resigned his employment by letter dated 21 March 2003. Equally, I think, there can be little doubt by the tone and strong language used in the letter that the applicant felt so aggrieved that he believed he had no alternative but to resign.

57 That being said, the question which logically arises for determination in this case was, did the applicant have reasonable grounds for believing that he had no option but to resign his employment? That question can be addressed in the context of the relevant authorities which have considered whether an employee's resignation constitutes a constructive dismissal.

58 The frequently cited authority is Allison v Bega Valley Council, where a Full Bench of the Commission 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 wilfull 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 ensure 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.

59 By its very nature a forced resignation will invariably be found to be a termination of employment at the initiative of the employer; thus meeting the test of what constitutes a constructive dismissal. See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum (1998) 91 IR 296, St Vincents Hospital Sydney Limited v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 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 and Police Service of New South Wales v Batton (2000) 98 IR 154.

60 To these authorities may be added the weight of a recent Full Bench decision reaffirming the principles discussed in Allison. In Ward v Mobile Innovations the Full Bench made these observations at para 4: 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 (sic) 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 .

61 I have also found the comment of Macken J in Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 to be particularly apposite in this case: Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated by a resignation equally untainted by any such threat. Where a contract is terminated otherwise, it amounts to constructive dismissal.

62 I turn now to make observations and findings on the evidence in this case to answer the question earlier posed.

63 The applicant was extremely critical and resentful of the content of the management's response sent to the Department of Health. He claimed that the response did not reflect his own draft response. He had been blamed for all the deficiencies. It is to be noted that it was Mr Rodrigues who prepared the response. He did not have the applicant's draft, nor was he expected to. He had Ms Hanley's draft. The applicant had not seen Ms Hanley's draft.

64 It seems to me however, that the salient point is whether the applicant was the subject of unfair or unwarranted criticism in the formal reply to the Department. In my opinion, on a proper reading of the document, no such inference can be drawn. The letter makes the reasonable observation that the DON had been instructed to implement any corrective measures. There was no explicit or implied suggestion that the applicant was guilty of mismanagement. There was no intention he be disciplined for any deficiencies. It is to be noted that the applicant, in his own statement, acknowledged that the respondent had not accused him of mismanagement. However, the course of events then took a serious turn.

65 The applicant's reaction (one might say understandably) was to lodge a grievance on 6 March 2003. On 21 March, Ms Parry responded to the applicant's grievance. She apologised for the delay in responding to him and agreed to review his grievance. Notwithstanding what I regard to be Ms Parry's conciliatory response, the applicant immediately resigned. In my judgment, this was a foolish and pre-emptive response.

66 There can be no suggestion that Ms Parry was deliberately intent on ignoring, or refusing to review the applicant's grievance. It must be remembered that it had only been two weeks since it had been lodged. I note the grievance procedure in the Award provides at cl.8(c): "Reasonable time limits must be allowed for discussion at each level of authority." The issues raised by the Department were numerous and required attention to detail. It was not, in my opinion, unreasonable for the applicant to wait two weeks for a reply. Indeed, Ms Hanley agreed that two weeks was reasonable. She further stated that a DON who resigned would usually know exactly what they were doing.

67 On the other hand, it must be said that the applicant made some unrealistic and unreasonable demands himself. The applicant demanded a complete answer to his grievance in six days. He demanded that the letter to the Department of Health be withdrawn in total and unconditionally. Neither of these demands were ever able to be sensibly or reasonably accommodated. Even putting these observations to one side, I am concerned that the applicant may have had another motive for submitting his resignation.

68 In his s84 application the applicant said, "I was dissatisfied with the response and compelled to take the only alternative left for me, i.e. to resign in order to have my grievance heard and addressed." (My emphasis) A number of observations may be made about this statement.

69 Firstly, the applicant continued to be paid until 7 May 2003. Secondly, resignation was not the only alternative open to the applicant. He hadn't even waited until his grievance was addressed. Thirdly, the wording of the statement, and comments made by the applicant on 7 May 2003, makes it plain that the applicant was using his resignation as a lever to get a speedy result to his grievance. On 7 May, in answer to this question, he said on transcript: HIS HONOUR: If you believe you have done a good job and nothing wrong why resign? APPLICANT: In order to have my grievance heard. In my view, this was an improper use of a resignation. If he thought his resignation would force the employer's hand, it didn't. He might now regret it, but I'm afraid its too late.

70 The Commission feels compelled to comment on three further issues arising from the evidence.

71 The applicant's evidence was that he gave two weeks notice and thought his resignation hadn't been accepted because he remained on the payroll until 7 May. This evidence does not make sense and I am troubled by it. If Ms Hanley had phoned him around the date of his resignation and asked him to work his notice, why would he think his resignation was not accepted? Ms Hanley would hardly have done so if his resignation had not been accepted.

72 Secondly, the applicant lodged this s84 claim on 4 April 2003 - a full month before May 7. In other words, the applicant must have believed he had been dismissed, albeit constructively, to have lodged such a claim.

73 Thirdly, there was no evidence that the applicant had worked out the two weeks' notice at all. He claimed to have taken time off work for acute work related stress from about 1 April. He contradicted this statement, in oral evidence when he said he took sick leave from Tuesday 25 March. There was no evidence that he contacted anybody to tell them he was going on sick leave. In these circumstances, I find that the applicant did not give two weeks notice on 21 March 2003. He left work on that day and did not return.

74 The applicant claimed he had been psychologically injured by the respondent's conduct. He had been stressed and depressed and had sought medical advice and counselling. The Commission was informed that a worker's compensation claim had been lodged, refused by the insurer and was the subject of other legal proceedings. I accept that a medical certificate was provided to the respondent some time after 21 March 2003 - although it was not produced. However, there was no medical evidence at all as to the applicant's mental or psychological condition at the time he said was relevant; namely, immediately prior to the time of his resignation. It is simply not enough to assert a medical condition and expect the Commission to accept it as fact.

75 From the forgoing observations and findings, it will be readily apparent that the applicant resigned his employment on 21 March 2003 without any hint or pressure from the employer. It is reasonably open to conclude that his resignation was designed for some other collateral purpose.

76 In reaching this conclusion it follows that the termination of employment was not at the employers' initiative. I accept Ms Hanley's evidence that she had sought to discourage the applicant from resigning. There was no constructive dismissal and consequently the Commission must dismiss this application for want of jurisdiction.

77 Notwithstanding this finding, it cannot go unnoticed that the applicant was paid in error for a period of over seven weeks after his resignation without notice. The respondent does not seek recovery of the overpayment, not do I think is it entitled to. However, had the applicant been successful in establishing his constructive unfair dismissal, such an amount would likely have been taken into account.

78 Application matter IRC03/1906 is dismissed accordingly. These proceedings are concluded.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Aged Care Act 1998(Cth)

Nursing Homes Act 1988(NSW)

(Cth), the Aged Care Principles (Cth), the Nursing Homes Act 1988(NSW)

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