Allison v Bega Valley Council

APPLICANT: Mr John Law acting as agent LEGAL REPRESENTATIVES: RESPONDENT: Mr R Tripodi, Australian Workers' Union, Greater New South Wales Branch

JUDGMENT: - 27 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 4 December 2003 Matter No IRC03/1784 Michelle Keri Giannone and the Australian Workers' Union, Greater New South Wales Branch Application by Michelle Keri Giannone re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2003] NSWIRComm 418

1 Michelle Keri Giannone (the 'applicant') worked as the receptionist for the Australian Workers' Union, Greater New South Wales Branch (the 'Union'). The applicant commenced full time employment in October 2001 and resigned on 11 March 2003. Her last day at work was 19 December 2002. The applicant claimed that she was forced to resign as a consequence of bullying and harassment by her two supervisors, Ms Wendy Chen and Ms Kim Oldfield and the Union's Assistant Secretary, Mr Ray Sparkes.

2 In early January 2003 the applicant sought advice from an industrial relations agent, Mr John Law. She also attended her doctor who provided her with a WorkCover medical certificate, citing her condition as acute anxiety disorder. Mr Law wrote to Mr Russell Collison, the Union Secretary, to seek a meeting to discuss the applicant's employment. Although no meeting was held there were phone conversations between Mr Law and Mr Collison. On 24 February 2003 the Union's insurer rejected the applicant's workers' compensation claim.

3 The applicant was on annual leave and workers' compensation from 19 December 2002 to 11 March 2003. On 11 March 2003, the Union's Payroll Supervisor, Ms Teo, rang her and asked when she would be returning to work. The applicant said she could not possibly return as she was unfit for duty until 24 March 2003 due to an acute anxiety disorder. The applicant claimed she felt hassled by this phone call, especially following the earlier harassment from Ms Chen, Ms Oldfield and Mr Sparkes. I shall return to these allegations shortly.

4 The applicant confirmed her resignation in writing on 13 March 2003. Her letter was expressed as follows: To the AWU Attention Wendy Chen This letter is to confirm my oral advice to Wendy Chen on Tuesday 11th March 2003 when Helen Teo called to find out when I would be returning to work, I told Helen that I could not possibly return to work, at the time Helen rang I was not expecting her call as I had previously told her when she rang that I was seeing a Solicitor on Friday 7/3/03 concerning my Workers Compensation claim. I had previously forwarded workcover certificates which stated that I was unfit for work to 24/3/03 due to Acute Anxiety Disorder. I really enjoyed working at the A.W.U and if it had not been for the harrassment (sic) from Wendy Chen, Kim Oldfield and Ray Sparkes I would have been able to continue to work. Please forward any entitlements to me at the above address.

5 The applicant lodged a claim on 31 March 2003 of constructive dismissal pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 (the 'Act'). The matter was listed for conciliation on 24 April 2003. As no settlement of the claim was achieved, the Commission made a finding, pursuant to s87 of the Act, and listed the matter for arbitration.

6 Five witnesses were called to give evidence. They were: 1. the applicant 2. Mr Peter Giannone (the applicant's husband) 3. Ms Wendy Chen, the Union's Office Manager 4. Ms Kim Oldfield, the Union's Membership Department Supervisor 5. Mr Raymond Sparkes, Assistant Secretary of the Union.

7 A convenient means of summarising the evidence is to identify the specific allegations of harassment made by the applicant against Ms Chen, Ms Oldfield and Mr Sparkes and then refer to their evidence in reply.

8 The applicant said that on 9 September 2002, she attended a meeting with Ms Chen and Ms Helen Teo to discuss her performance after twelve months service. The applicant's evidence was that she was told that as the Union's organisers were not receiving a pay rise, neither were the office staff. Ms Chen had informed her that she had no sick leave remaining. However, Ms Chen had also said that she was not lazy, she was punctual and she worked well with other staff members.

9 During the meeting Ms Chen offered her personal opinion of the applicant. She had said she thought the applicant was a "bit of a fruit loop" and that on some days she "got under her skin." Ms Teo had laughed at these comments.

10 Ms Chen then recalled an incident in which the applicant had answered the phone by saying "good morning" instead of "good afternoon." The Union Secretary, Mr Collison, had made the phone call. Ms Chen had said Mr Collison had doubted the applicant's competence as a result of this incident.

11 The applicant claimed that she was highly offended by Ms Chen's comments and had not found them funny. In fact, she had started to cry. She believed the comments were of a personal nature and were not called for. She agreed that Ms Chen had later apologized and that she had accepted the apology.

12 On 3 October 2002 the applicant attended a meeting with Mr Sparkes and Ms Chen to discuss her attendance record. Mr Sparkes had said the meeting was not a "witch hunt." However, she was told she had no sick leave available. The applicant claimed she had not been asked to produce medical certificates as there was no Union policy which required their production. The applicant received a verbal warning which Ms Chen noted in her own file.

13 In early October, the applicant stated that Ms Chen had refused her request for a day's leave to visit her gravely ill mother-in-law in Melbourne over the October long weekend. She took the day off anyway. About the same time her own grandmother, who lived on the south coast, was very ill. Both relatives subsequently died on the same day - 11 October. The applicant's husband travelled to Melbourne for his mother's funeral. The applicant took one day's bereavement leave to attend her grandmother's funeral on 16 October 2002.

14 The applicant agreed the Union had allowed her to take Rostered Days Off ('RDOs') before they were due. She was also permitted to work during her lunch to make up for time lost when she was late for work. The applicant agreed the Union was flexible with her and other members of staff.

15 Mr Giannone said he first became aware of his wife's problems at work after the 9 September performance meeting. When he had picked his wife up from the station, she was subdued, but she then began to cry. When his wife had told him what Ms Chen had said, he was shocked and appalled.

16 Mr Giannone gave evidence that his wife was stressed and worried about taking the day off to go to Melbourne in October 2002 to visit his ill mother.

17 Ms Chen conceded that she had called the applicant "a bit of a fruit loop." She claimed the applicant laughed at the comment. She had no idea the applicant was upset by it until Mr Sparkes had told her. Ms Chen said that, as an inexperienced Office Manager, her comment was inappropriate and she sincerely regretted the incident. However, it had not been malicious. When she had apologized to the applicant, they had both been upset and teary. She agreed she might have also said "you sometimes get under my skin."

18 Ms Chen believed her comment about answering the phone was only helpful advice, as Mr Collison was very fussy about phone etiquette. Ms Chen added that there was no connection between the organisers' pay rises and those of office staff.

19 Ms Chen believed the applicant was always accommodated when she wanted time off. The Union was flexible with all staff. RDOs were available for personal appointments and the applicant made time up when she was late for work.

20 Ms Chen gave evidence that she refused the applicant's request for a day off before the October long weekend because she was concerned the situation was getting out of control and there was already one staff member down for the day. At the time Ms Chen had been unaware of the applicant's ill relative. Ms Chen later told her not to worry about the day off and she would be paid.

21 Ms Chen said the Union's practice was not to require medical certificates until the sick leave entitlement was exhausted. The applicant had used all her entitlement of 10 days. Ms Chen agreed that the sick leave in November 2002 fell into a new year of entitlements. However, because of the verbal warning in October, it was expected the applicant would provide a medical certificate.

22 Ms Chen had asked Mr Sparkes to conduct the meeting on 3 October because she had "messed things up" earlier (at the performance review). Ms Chen made a file note about this meeting at Mr Sparkes' request. It was in these terms: FIRST VERBAL WARNING - MICHELLE GIANNONE Date: Thursday, 3rd October, 2002 Present: Michelle Giannone, Ray Sparkes, Wendy Chen Issues raised in relation to poor work attendance record: 1. Lack of sick leave 2. Flagrant use of leave without pay 3. Employer's Flexibility with taking of rostered days off before it is due in the past 4. Employer's flexibility with taking time and days off work Michelle was advised that the employer will be keeping an eye on her time-keeping as well as work attendance record. Author: Wendy Chen Date: 9th October, 2002

23 Ms Chen said this was not a written warning, but a personal note for her own file. It did not go on the applicant's file. The file could not be accessed by anyone other than the Secretary. Ms Chen was asked about her understanding of the meaning of the word "flagrant".

24 Ms Chen acknowledged that there had been an improvement in the applicant's attendance record after the verbal warning. Ms Chen agreed that the applicant had only taken 2 days leave without pay.

25 In December 2002, Ms Chen had requested a court document when the applicant had requested time off to attend the Family Court as a support person. At the time, Ms Chen had not wanted to delve into the applicant's personal business and cause her further upset. Ms Chen had simply wanted some documentation so that the applicant could be paid and not have to use an annual leave day.

26 Ms Chen had provided a statement to NRMA Insurance Ltd concerning the applicant's workers' compensation claim. Ms Chen had told the investigator of the "fruit loop" comment. She did so because she had nothing to hide. She had also told the investigator she had never known someone to take so much time off work in her ten years at the Union. Ms Chen had not regarded the applicant as an "upfront person," because she had not come to see her over the "fruit loop" comment.

27 Ms Chen said she had never pressured the applicant to resign. She had not been vindictive towards her.

28 Ms Chen noticed that the applicant's desk had been cleared on 20 December 2002; although she couldn't be sure what had been on the desk. Ms Oldfield was not sure either.

29 On two occasions, in October and December 2002, the applicant was required to attend meetings at her daughter's school. She arrived at work at 11:00am and 10:00am respectively. While the applicant had informed Ms Oldfield of these appointments, Ms Oldfield had requested she provide a letter from the school to confirm the appointments. The applicant believed that her word was not good enough and she was seen by the Union to be untrustworthy. Mr Giannone gave evidence that his wife was extremely stressed about attending her daughter's school.

30 Ms Oldfield said she asked for the letter so that the applicant could be paid for not being at work. It was not because the applicant was seen as untrustworthy.

31 At the time of her relatives' illnesses, the applicant alleged that Ms Oldfield had said "what are you going to do about the funerals of both relatives." Ms Oldfield said she found this suggestion offensive. She had in fact suggested that the applicant visit her grandmother before she gets any worse. The applicant conceded that Ms Oldfield did not, and could not have known when her relatives would pass away.

32 Ms Oldfield said that the applicant had not said her mother-in-law had taken a "turn for the worse." Ms Oldfield stated that when she told the applicant she couldn't have the Friday off, she had told her to try and work something out with her husband. The applicant had replied that she would take the day off without pay. Ms Oldfield agreed that she could not have known whether the applicant's mother-in-law had taken a turn for the worse or that there was a family emergency.

33 On the day the applicant's grandmother and mother-in-law passed away, Ms Oldfield asked her if she needed to go home. The applicant had said no and remained at work.

34 On 14 October, Ms Oldfield inquired of the applicant how she and her husband were and said that you can't be in two places at once (meaning two funerals at once). Ms Oldfield said these inquiries were because of her concern for the applicant. Ms Oldfield said she never suggested the applicant couldn't go to both funerals and she could have. In any event, she only attended her grandmother's funeral.

35 The applicant gave evidence that on 6 December 2002, when a position in the Accounts Receivable Department became available, she approached Ms Oldfield about applying for the position. Twelve months earlier Ms Oldfield had offered her a similar job. Ms Oldfield told the applicant she would not be considered for the job, as she was unsuitable. The job was to be advertised. The applicant said she was shocked, humiliated and degraded by this comment.

36 Ms Oldfield said she was taken aback when the applicant asked about the vacancy. Ms Oldfield said she hadn't expected the applicant would apply for another position because of the problems she was having with her attendance record. Ms Oldfield had said the position was to be advertised and she didn't think the applicant was right for the position. In oral evidence, Ms Oldfield said she believed the position had already been advertised.

37 Ms Oldfield said she did not offer the applicant a position in Accounts Receivable at any time; nor did she have the authority to do so. Ms Oldfield said that while she sometimes sat on interview panels, she does not hire employees. Ms Oldfield agreed that she may have mentioned a vacancy in October 2001, but at that time the applicant happily accepted the full time position as receptionist.

38 Ms Oldfield was asked about an example of the applicant taking sick leave immediately prior to her annual leave in November 2002. Ms Oldfield said it appeared strange to her because the applicant hadn't appeared sick at the time.

39 On 11 December 2002 the applicant requested a day's annual leave to attend the Family Court as a support person for her daughter. Ms Oldfield told her that if the leave was to be approved, it would require a letter from the solicitor. Ms Teo and Ms Chen also told the applicant the same thing. The applicant regarded this as harassment by the three officers. She believed it was an invasion of her privacy.

40 Ms Oldfield said that on 11 December the applicant approached her and said, "I've been subpoenaed to appear in Court." Nothing was said about being a support person. Ms Oldfield did not inquire and said if a subpoena was produced, she would be paid.

41 Ms Oldfield agreed that the annual leave form does not require a reason for the annual leave request. The procedure was that Ms Oldfield checks if other people are away and liaises with Ms Chen, who then approves the leave. Ms Oldfield believed that, in any event, the applicant did not seek an annual leave day.

42 In oral evidence, Ms Oldfield described an incident in June 2002 in which the applicant arrived at work and was very upset and distressed. She had told her that her husband was leaving her. Ms Oldfield suggested she go home for the rest of the day. The applicant said this incident never happened and she and her husband strongly denied any suggestion that they were intending to separate.

43 Ms Oldfield referred to her statement to the workers' compensation investigator. She claimed it was not vindictive. In it, Ms Oldfield described the applicant's performance, as the receptionist, as "not brilliant". However, she believed she would improve. While the applicant had not been spoken to about her performance, there had been numerous complaints about calls being put through to wrong persons.

44 Ms Oldfield also told the investigator that the applicant was continually late for work. She acknowledged however, that she didn't know exactly how often this occurred. Ms Oldfield added that the applicant was the only staff member to go outside for a smoke and this had prompted other staff to complain. When Ms Oldfield raised this matter with her, the applicant had complained to Ms Teo.

45 Ms Oldfield believed the Union had "bent over backwards" to assist the applicant with her personal problems. Ms Oldfield stated that she had never pressured the applicant at work and never sought her resignation. She always believed they had a good working relationship.

46 The applicant alleged that after her performance review on 9 September she wrote to Mr Sparkes on 13 September and complained about Ms Chen calling her "a bit of a fruit loop." She claimed to be highly offended and distressed. She had handed the letter personally to Mr Sparkes. Mr Sparkes had not responded to her letter.

47 Mr Sparkes' evidence was that the applicant had spoken to him about the performance meeting and he had then spoken to Ms Chen about her inappropriate comments. Ms Chen had told him she hadn't been aware the applicant was offended. However, she agreed to apologize. Mr Sparkes denied ever receiving the applicant's letter of 13 September. He said the first time he saw it was when he read the applicant's statement for these proceedings in July 2003.

48 Mr Sparkes referred to the 3 October meeting he held with Ms Chen and the applicant. Mr Sparkes said he had conducted this meeting because Ms Chen was not experienced. The applicant had agreed she had taken too much time off and would need to improve. At one point Ms Oldfield was invited into the meeting to clarify a matter.

49 Mr Sparkes agreed he told the applicant the meeting wasn't a "witch hunt." Mr Sparkes believed that the applicant felt comfortable with him handling the issue, particularly as she had approached him earlier over the "fruit loop" comment. Mr Sparkes had asked Ms Chen to make a note of the meeting.

50 Mr Sparkes accepted that he had not checked whether the applicant's attendance record had improved. When he did so, Mr Sparkes agreed that the applicant had not run out of sick leave as the payroll department had incorrectly interpreted the Award.

51 On 19 December 2002 Mr Sparkes told the applicant she would be receiving a written warning, as her attendance had not improved. She had told Mr Sparkes she felt bullied, but did not elaborate. Mr Sparkes told her he would investigate her complaint when he returned from annual leave and after he received more details from her. No written warning was ever issued and no investigation of the applicant's complaint was undertaken. Mr Sparkes said this was because the applicant had resigned by that time.

52 Mr Sparkes believed his meetings with the applicant could not be characterised as harassment by management. He described the meetings as "quite informal."

53 In oral evidence Mr Sparkes described the Union's procedure for approving requests for annual leave and for the taking of sick leave. Mr Sparkes believed that there was a requirement to provide a medical certificate where it was thought necessary, even when the sick leave entitlement had not been exhausted.

54 Mr Sparkes was taken through the applicant's time sheets from 4 October to 20 December 2002. He accepted there may have been an improvement, but stated that it depended on what one meant by improvement.

55 Mr Sparkes said that while he was not in the office at all times, it was his observation that neither Ms Chen nor Ms Oldfield had been vindictive or bullied the applicant in any way.

56 Mr Law submitted that the applicant was constructively dismissed in that she was forced to resign due to bullying and harassment by Ms Chen, Ms Oldfield and Mr Sparkes.

57 Mr Law put that the evidence in support of this submission could be first found in the applicant's performance interview. Ms Chen had referred to the applicant as "a bit of a fruit loop" and further stated that "you get under my skin." When challenged, Ms Chen did not deny these statements. Mr Law submitted that this interview was the beginning of the harassment.

58 The applicant was further harassed in the meeting with Mr Sparkes and Ms Chen on 3 October. In particular, Ms Chen stated that the applicant had taken too much sick leave and that she was not entitled to anymore. Upon further investigation, however, Mr Sparkes discovered that the applicant had accrued some sick leave. Ms Chen's notes of the meeting had described the applicant's actions as "flagrant." When she was challenged on this point, Ms Chen conceded that this was not the case.

59 Mr Law submitted that Ms Chen had accused the applicant of taking all her sick leave in a short period, when in fact the evidence did not support this contention. Ms Chen also made a statement to an insurance investigator in which she claimed that she did not think the applicant was "an up front type of person." Mr Law stated that, in other words, Ms Chen was labelling the applicant as untruthful.

60 Mr Law submitted that Ms Oldfield had initially granted the applicant leave on Friday 4 October 2002, and failed to advise Ms Chen of the reasons for the applicant's request.

61 Mr Law submitted that Ms Oldfield had incorrectly believed that "Michelle's mother-in-law did not take a turn for the worse." Mr Law put that Ms Oldfield was in no position to make such a statement. In these circumstances, the applicant's evidence should be preferred. In fact, one week after the requested leave, the applicant's mother-in-law and grandmother died on the same day.

62 Mr Law said that when questioning the applicant about the two funerals, Ms Oldfield had replied, "what are you going to do about both funerals? You will not be able to go to both." Mr Law submitted that the Commission should accept the applicant's version of this conversation. He said the applicant was so scared to ask for leave that, in the end, she elected to go only to her grandmother's funeral, leaving her husband to go alone to his mother's funeral.

63 Mr Law referred to Ms Oldfield's evidence that in June 2002 the applicant's husband was going to leave her. This evidence was refuted in oral evidence by the applicant and her husband.

64 On 20 December 2002 the applicant was required to accompany her daughter to the Family Court at Parramatta. The applicant requested a day of annual leave but was told she was required, contrary to the Union's policy, to provide a reason. Mr Law submitted that this was another example of bullying and harassment suffered by the applicant.

65 Mr Law referred to the incident when the applicant approached Ms Oldfield in regard to a position available in the Accounts Receivable Department. The applicant was informed that, because of her attendance record, she would not be a suitable candidate and that the Union was intending to advertise the position. During cross examination, Ms Oldfield conceded that she had no real role to play in the appointment of staff. Mr Law put that in the eyes of the applicant, this was another example of harassment.

66 Mr Law directed the Commission to a statement made by Mr Sparkes in which he had intentionally included hearsay comments. Mr Sparkes, as a senior union official, would be aware that hearsay is not admissible as evidence. He had alleged that since the applicant provided no medical certificates, she was not sick. Mr Law submitted that the Union policy did not require employees to provide medical certificates. This was yet another example of harassment directed toward the applicant. Mr Law submitted that by putting this information in the statement to the insurance investigator, this was also a form of harassment.

67 Mr Law proposed that the second warning was another example of harassment suffered by the applicant. The second warning concerned allegations that the applicant had not improved her attendance record. Mr Law put that the applicant's attendance record had demonstrated a marked improvement. Mr Law claimed that Mr Sparkes had also harassed the applicant, by failing to investigate whether the applicant's performance had actually improved.

68 Mr Law said that the Union had no reason to suspect that the applicant had cleaned out her desk on 19 December and was not intending to return to work. He observed that neither Ms Chen nor Ms Oldfield were able to say what items were on the applicant's desk. Furthermore, the Union did not challenge the evidence of the applicant on this issue.

69 Mr Law challenged Mr Sparkes' evidence concerning the applicant's 13 October letter. Contained in the document were the allegations against Ms Chen. Mr Sparkes claimed he had not seen this document at the time. However, Ms Chen had stated that she apologised to the applicant once Mr Sparkes had spoken to her about calling the applicant a "fruit loop". Mr Law suggested that this evidence demonstrated that Mr Sparkes had in fact received the document and had done nothing about it.

70 Mr Law submitted that the final harassment incident was when the applicant was off work on workers' compensation. She had lodged a medical certificate with the Union excusing her from attendance at work until 24 March 2003. On 11 March the applicant received a phone call at her home from Ms Teo, demanding to know when she would be returning to work.

71 Finally, Mr Law put that the applicant had documented each of her complaints and that the Union had failed to investigate the allegations. Accordingly, Mr Law said that the applicant would not be seeking reinstatement or re-employment. He put that in these circumstances, compensation of 26 weeks pay should be awarded.

72 Mr Tripodi submitted that the appropriate test of what constitutes a constructive dismissal can be found in Allison v Bega Valley Council (1995) 63 IR 68. Mr Tripodi put that a constructive dismissal is described as one where the employer, by its actions or inactions, forces an employee to resign. He put that this was not the situation in this case. Mr Tripodi then outlined each of the harassment allegations and described to the Commission why they could not support such a finding of constructive dismissal.

73 Mr Tripodi submitted that the Commission could not consider the incident concerning Ms Chen calling the applicant "a fruit loop," as harassment. He argued that as Ms Chen had apologised and the applicant had accepted the apology, this could hardly be the actions of an employer trying to force the resignation of an employee.

74 The second incident concerned the disciplinary meeting of 3 October. The issue there was a request by the applicant to use one of her rostered days off prior to its accrual to visit her ill mother-in-law. Mr Tripodi put that the applicant was denied the leave on the basis that Ms Chen was unaware of the circumstances surrounding the applicant's mother-in-law's illness. Ms Chen believed that the applicant was simply seeking to take an RDO at her convenience.

75 Mr Tripodi directed the Commission's attention to the applicant's pattern of poor attendance. In particular, he identified time sheets which disclosed that the applicant had taken ten days' paid leave and three days' unpaid leave, without medical certificates. Mr Tripodi submitted that the Commission should bear this evidence in mind when considering the Union's actions in trying to improve the applicant's attendance at work.

76 Mr Tripodi highlighted the sick leave provisions under the Clerical and Administrative Employees State Award (296 IG 619). An employee is required to submit medical certificates or a statutory declaration. The evidence was that the Union's sick leave policy was in excess of the Award entitlements. Mr Tripodi put that applicant was treated above and beyond what was required by the Award and that the Union had a very generous leave policy. It was because of this policy that the Union sought to ensure that it was not abused. Mr Tripodi noted that the applicant had RDOs before they were due and arrived late for work on numerous occasions.

77 Mr Tripodi contested the evidence of the applicant that she was not aware of the requirement for medical certificates. In any event, Mr Tripodi put that it was common sense for an employee whose attendance was under scrutiny to produce a medical certificate. Mr Tripodi observed that in the meeting of 3 October the applicant acknowledged her poor attendance and admitted that she needed to improve.

78 Mr Tripodi then turned to the incident concerning an allegation by the applicant that Ms Oldfield had said, "What are you going to do regarding the impending funerals of both relatives?" Mr Tripodi put that this comment was false. Ms Oldfield's evidence was that she had been supportive of the applicant and had not made such a comment. Mr Tripodi submitted that the Commission should take into account, as an indication of her support, that Ms Oldfield had said, "you should go and see your grandmother before she gets worse." The applicant had accepted that this comment had been made.

79 Mr Tripodi dealt with the incidents on 29 October and 10 December 2002 when the applicant sought time off to attend her daughter's school. Mr Tripodi submitted that it was the Union's policy to seek a letter explaining the absence. Failure to do so meant that an employee would have to use up other entitlements. Seen in this light, Mr Tripodi put that the Union was trying to assist the applicant. As this was the policy of the Union, it could not be seen as placing pressure on the applicant to resign. He added that the applicant's contention that the Union saw her as untrustworthy was simply wrong.

80 Mr Tripodi referred to the alleged harassment in relation to the vacant position with in Accounts Receivable. He submitted that Ms Oldfield had never offered the position to the applicant. More importantly, Ms Oldfield was not authorised to do so. Further, it was Ms Chen's managerial decision to advertise the position. Mr Tripodi conceded that Ms Oldfield had stressed to the applicant that the position required a high level of responsibility and that given her record, she would not be suitable. Mr Tripodi asserted that the applicant's failure to achieve this position, could have been a factor leading to her decision to resign.

81 Mr Tripodi referred to the incident on 11 December, when the applicant sought a day of annual leave to accompany her daughter in the Family Court. He put that the applicant failed to fill in the leave request form. Furthermore, the applicant did not mention that she was a support person for her daughter. Mr Tripodi put that both Ms Chen and Ms Oldfield sought a letter so that the applicant could be paid. In any event, the applicant was granted the leave and was not required to produce a letter.

82 Mr Tripodi emphasised that, given the evidence, it was impossible to come to a conclusion that the Union was trying to force the applicant's resignation. He referred to the evidence of Mr Sparkes concerning his meeting with the applicant on 19 December. The intention had been to give the applicant a written warning regarding her poor attendance. He told the applicant that he would defer doing so until the new year, when he would investigate her complaint of bullying. Mr Tripodi submitted that this was evidence of the Union's willingness to listen to the applicant.

83 In relation to the state of the applicant's desk on 19 December, Mr Tripodi submitted that the recollections of Ms Chen and Ms Oldfield were hindered by the lapse of time. He put that although both Ms Chen and Ms Oldfield could not recall exactly what was on the desk, both made mention of a small vase and picture that were no longer on the applicant's desk.

84 Mr Tripodi said that the Union became aware of the applicant's workers' compensation claim in February 2003. He highlighted the insurer's opinion that the Union had acted in a responsible manner in relation to the applicant.

85 Mr Tripodi addressed what the applicant claimed as the catalyst which forced her resignation; namely, a phone call she received from Ms Teo in relation to her return to work. Mr Tripodi submitted that this call could hardly be seen as forcing the resignation of the applicant - quite the contrary, the Union was seeking to have the applicant return to work.

86 Mr Tripodi said that the applicant was dissatisfied with not receiving the Accounts Receivable position and annoyed at having her workers' compensation claim rejected. At all times the applicant's supervisors had tried to accommodate her personal difficulties and had shown no malice towards her. Accordingly, her resignation was freely given. There was no constructive dismissal.

87 Mr Law replied that, in the applicant's mind, from October 2002 onwards, various management of the Union were seeking to procure her termination of employment. Based on that belief, the Union had done nothing about her claims of bullying and harassment. Mr Law said that the applicant was suffering from anxiety while she was on workers' compensation leave and that the Union should have dealt with her complaints in her absence.

88 Mr Law referred to the submission that the applicant was continually late for work. Mr Law submitted that on each occasion that the applicant was late, there were good reasons provided and that in each instance her lateness was not within her control. In any event, Mr Law noted that the applicant would make up the lost time during her lunch breaks.

89 Finally, Mr Law put that the applicant enjoyed working for the Union. She had been honest and forthright and her evidence should be preferred.

CONSIDERATION Principles of Constructive Dismissal

90 There can be no doubt that the applicant resigned her employment orally and by letter dated 13 March 2003. Simply put the applicant claimed she was forced to resign as a result of harassment by persons in management. Three questions seemingly arise for determination in this case.

91 Firstly, did the actions of the management amount to harassment? Secondly, did the applicant have reasonable grounds for believing that she had no option but to resign? Thirdly, did the decision to resign amount to a constructive dismissal which was unfair? A fourth consequential question arises if the answer to the third question is in the affirmative; that is, what relief should follow if the Commission finds the applicant was unfairly dismissed within the meaning of Pt 6 ch 2 of the Act? As will be seen from my later findings, it will be unnecessary to answer this last question.

92 Before turning to the facts and circumstances of this case, it is appropriate at this juncture to refer to the authorities of this Commission which have considered whether an employee's resignation constitutes a constructive dismissal.

93 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.

94 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.

95 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 [2002] NSWIRComm 287 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 .

96 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.

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

98 It would be readily apparent, from the uncontested evidence, that the applicant in this case was not quite the model employee. While I would not describe her attendance record as atrocious, it must be acknowledged I think, that it was bordering on unsatisfactory. It was a legitimate cause of concern for her supervisors.

99 I hasten to add that during October 2002 the applicant experienced very unfortunate family circumstances. However, for the most part, the other reasons for her absences (except for sick leave) were attributable to the usual and unexceptional family responsibilities which all working families experience from time to time.

100 However, a correct interpretation of the evidence revealed, in my opinion, an employer which acted sympathetically and sensitively to the applicant's personal and family responsibilities.

101 It seems to me that the Union (as one might reasonably expect from a union employer) provided flexible work arrangements for its employees and tolerated considerable latitude when its employees' personal and family responsibilities impinged on generally accepted standards of workplace conduct.

102 This was plainly demonstrated by the evidence revealed in the case. I found the Union's witnesses to be sympathetic to the personal needs and difficulties of the applicant. The applicant herself conceded as much.

103 Moreover, it was evident that the Union's policies allowed for considerable flexibility in work arrangements for the applicant. Such measures included: i. Providing 10 days sick leave in the first year of employment - double the Award entitlement. ii. Not requiring medical certificates for the first 10 days. iii. Permitting the applicant to work during lunch to make up time when she was late for work. iv. Allowing the applicant to take RDOs before the entitlement had been accrued. v. Allowing her three days of unpaid leave. vi. Permitting her to take " smoko " breaks outside the office.

104 It must be stressed that it is perfectly reasonable for an employer to question an employee's poor attendance record. If an employer dismissed an employee for poor attendance without having fairly and squarely raised the issue before doing so, good grounds for complaint would be manifest.

105 Unions, of course, are expected to have a far greater knowledge and appreciation for an employer's duties and responsibilities in such situations. It is obvious that Unions are acutely sensitive to criticism of their own employee relations practices. However, a Union still has a business to run. It must be able to run its business according to the usual standards and expectations of the employer/employee relationship. To do otherwise would be contrary to the best interests of its members.

106 That being said, it sometimes will be necessary for a Union to take corrective measures in order to improve an employee's conduct and performance. That it has such a right should not be seen as a basis for criticism simply because the employer is a Union.

107 In reviewing all of the evidence in this case, I am confidently able to find that the Union's handling of its duties and obligations to the applicant were entirely reasonable and appropriate. It could not, by any stretch of the imagination, be seen as harassment; let alone justify grounds for the applicant to believe she had no option but to resign.

108 On the other hand, I am troubled by certain aspects of the applicant's evidence which give cause for the Commission to question her bona fides.

109 This doubt arose from areas of evidentiary conflict between the witnesses. One matter was particularly personal; and I am not disposed to make a finding upon it. Nevertheless, I am inclined to make the following observations on the circumstances which were disclosed in the case.

110 It seems to me that there can be a strong inference drawn that the applicant had, in fact, made quiet arrangements to end her employment some weeks prior to her actual resignation on 13 March 2003. This may well have been motivated by Ms Oldfield's rebuff to her interest in the Accounts Receivable position on 6 December.

111 On 11 December the applicant sought a day's annual leave on the day before the Christmas shutdown. It was said that she was attending the Family Court at Parramatta as a support person for her daughter. It was curious that there was no annual leave request form filled out; nor, despite the Commission's invitation to provide it, was there evidence of her attendance at Court on that day.

112 The applicant was reluctant to provide medical certificates for many of her claimed sickness absences. In fact, none were produced during the proceedings. However, it would be common sense for an employee, whose attendance record has been the subject of review, to be assiduous in ensuring that any further sickness absences were backed by medical verification. Her defence was that she wasn't asked to. I would have thought that it would have been insurance against further criticism.

113 The applicant's cavalier approach to taking time off can be seen when she was refused permission to take the Friday off before the October long weekend. She took it anyway. Two other examples serve to make the point that the Union had reasonable cause to be concerned with the applicant's attendance record.

114 The applicant went home sick on Thursday 21 November 2002, had the following day off and proceeded on annual leave on the next Monday. Secondly, there was another example where the applicant left work early on 15 January 2002, had an RDO the next day and a sick day the following day.

115 Moreover, there were numerous occasions when the applicant was late for work. It is no answer, as Mr Law suggested, that the occasions of lateness were not her fault and she made the time up during her lunch break. The Union needed her there to answer the phone.

116 In my opinion, the applicant's behaviour was consistent with a pattern of absences which rightly gave cause for alarm. Mr Law emphasised that the applicant's attendance record improved from the time she received the verbal warning in October to December 2002. Strictly speaking, that was so. However, the flaw in Mr Law's submission can be seen by observing that if an employee took 19 days off in a three month period compared with 20 in an earlier period, would that be found to be an "improvement?" I hardly think so. I am inclined to agree with Mr Sparkes' comment "that it depends on what you mean by improved."

117 It was not the point that the applicant had taken less time off after her verbal warning. Nor was it the point that a new entitlement of ten days had commenced in October 2002. The applicant continued to have absences from work. The real question to be answered was whether these absences, in the face of an earlier warning, could be tolerated without a formal warning. I think the answer is self evident.

118 The Commission has earlier referred to an employer's right to question an employee's poor attendance record in order to achieve some improvement. This cannot be viewed as harassment.

119 Nevertheless, the applicant cited a number of other specific examples of harassment which require comment.

120 There can be no doubt that Ms Chen's "fruit loop" comment was unprofessional and unacceptable. I can understand that the applicant was offended by it. However, what is important to take into account, is how the employer reacted to the situation. The applicant complained to Mr Sparkes. He broached the subject with Ms Chen. Ms Chen apologised. In the witness box, Ms Chen expressed contrition and regret over the comment. In my judgement, it was a sincere apology and I accept her contrition unreservedly. So too, it seems, did the applicant. Her evidence was to this effect.

121 However, there then arose an issue of the applicant's letter of 13 October in which she claimed to be highly offended and distressed by the comment. Mr Sparkes gave evidence that the first time he saw this letter was in July 2003. As I accept Mr Sparkes evidence on this issue, it is reasonable to conject that the applicant created this letter some time after the event.

122 There was an inference in the applicant's case that Ms Chen's note of the verbal warning was a further example of harassment. I reject this inference. The note was not placed on the applicant's file. It was merely a record of the verbal warning for Ms Chen's personal record. In any event, its contents were hardly controversial. It was to draw a very long bow indeed to regard this matter as harassment.

123 The applicant alleged further harassment by Ms Oldfield when she asked for proof of attendance at her daughter's school and at the Family Court. I accept Ms Oldfield's evidence that all she was attempting to do was ensure the applicant was paid for legitimate time off for family responsibilities. For the same reasons as above, I fail to comprehend how this could be construed as harassment.

124 It was further alleged that Mr Sparkes ignored the applicant's complaints of bullying and harassment by Ms Chen. As I said earlier, Mr Sparkes responded promptly and appropriately. He correctly assumed the matter had ended with an apology which was accepted by the applicant.

125 When the applicant complained of bullying again on 19 December when she was spoken to again about her attendance at work, Mr Sparkes asked for more information. He did not get it. Rather than making a hasty decision on the eve of the Christmas break, he deferred issuing a written warning and promised to investigate the applicant's complaint on his return from annual leave. He invited the applicant to provide further details.

126 To my mind, this was a perfectly sensible, objective and sympathetic response from management. The fact that the complaint was not investigated is not relevant. The applicant had not returned to work and shortly thereafter, had resigned. Without her input, Mr Sparkes inquiries would not have progressed the investigation very far at all.

127 Finally, the applicant alleged that Ms Teo's call to her asking about her return to work was further evidence of harassment. Such a claim was nonsense. The employer was perfectly entitled to inquire about a return to work. There was no suggestion Ms Teo was belligerent, rude or aggressive. Alleging that this amounted to harassment is simply not sustainable.

128 For the reasons herein expressed, I would answer the questions earlier posed as follows: 1. The conduct of Ms Chen, Ms Oldfield and Mr Sparkes did not constitute harassment or bullying of the applicant. 2. There was no reasonable grounds for the applicant to believe that she had no option but to resign in the face of the legitimate questioning of her poor attendance record. 3. The actions of the Union did not constitute an intention to seek the applicant's resignation. 4. The conduct of the Union did not evince a conclusion that it was the effective initiator of the termination of employment.

129 In the result there was no constructive dismissal of the applicant. She resigned of her own free will, without any pressure or coercion. Accordingly, there is no jurisdiction for the Commission to entertain her claim for relief from alleged unfair dismissal pursuant to Pt 6 ch 2 of the Act.

130 I would dismiss the application and conclude the proceedings.

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.