Allison v Bega Valley Council

APPLICANT: Mr A Herro (Solicitor) Herro Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr J Bailey, Greater Murray Health Service

JUDGMENT: - 31 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP 2 July 2004

Matter No IRC03/4979 Robyn Kelleher and Wagga Wagga Base Hospital Application by Robyn Kelleher re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996 DECISION [2004] NSWIRComm 187

1 Ms Robyn Kelleher ('the applicant') has brought a claim pursuant to s84 of the Industrial Relations Act, 1996 ('the Act') for alleged constructive dismissal by her former employer, the Greater Murray Area Health Service ('the respondent'). The applicant had been employed as a Senior Social Worker at Wagga Wagga Base Hospital, where she had worked for a period of eighteen years - the last fourteen of which were full time.

2 The applicant resigned on 15 August 2003 in circumstances where she believed she had been forced to resign because of the respondent's failure to properly address a grievance made against her by another employee. The terms of the applicant's resignation letter were expressed as follows: It is with regret and sadness that I tender my resignation as Senior Social Worker at Wagga Wagga Base Hospital. Recent managerial decisions, including the way in which the grievance against me had been managed and the management of call out service to the hospital have, I feel, made my position untenable. Please accept my resignation effective 15th August, 2003.

3 The application for relief from alleged unfair dismissal was filed in 5 September 2003. The matter was listed for conciliation and directions on 8 October 2003. Mr A Herro (Solicitor) appeared for the applicant and Mr J Bailey from the Area Health Service appeared for the respondent. The matter was unable to be resolved and, accordingly the Commission made a finding of unsuccessful conciliation, pursuant to s87 of the Act. The matter was listed for arbitration in Wagga Wagga and directions were issued in preparation for the arbitration.

4 When opening his client's case, Mr Herro helpfully detailed the factual background to the matter. In particular, he referred to the applicant's outstanding contribution to the community of Wagga Wagga and to the local Hospital. Her resignation and relocation to Bathurst (the applicant having obtained employment at Bathurst Community Health Service) had affected her personally in that her friends and family lived in Wagga Wagga. The community had lost an outstanding contributor and the Hospital had lost a valued employee.

5 Mr Herro referred to the grievance lodged by Ms Lorraine Lyons, the Hospital's Aboriginal Liaison Officer, in which Ms Lyons alleged racial discrimination and harassment by the applicant. Mr Herro said the applicant strenuously denied the allegations. He submitted that she was placed in a completely untenable position in that the grievance should have been investigated fairly and, in a timely manner, in accordance with the respondent's own guidelines and procedures. When the respondent failed to do so, the applicant believed she had no option but to resign.

6 Mr Herro said that the applicant had been given a letter dated 19 May 2003 which invited her to a 'fact finding' meeting on 20 May to discuss the allegations made against her of unprofessional behaviour, harassment, racial discrimination and an inability to deal with Aboriginal staff and issues.

7 A meeting was organised on 27 May 2003 with the applicant and her support person, Ms Janine Learmont. The meeting involved Ms Leigh Blake (Manager) and Ms Helen Martin (Business Manager). The applicant was given Ms Lyons' letter of complaint and asked to respond. The applicant requested details of dates, times and places and sought a further 24 hours to respond. Further meetings were held on 28 May, 4 June, 10 June and 25 June. The later meetings also involved Mr Bailey (Manager Workforce Development & Strategy).

8 On 6 June the applicant met with the General Manager, Mr David Vorst and complained that the respondent's policies were not being complied with and as a result she was not being fairly treated.

9 On 8 July further details of the allegations were provided to the applicant in a one page document, which had been dictated by Ms Lyons to the Hospital's Early Injury Intervention Manager, Ms Kitty Bont. A short meeting was held on 9 July between Ms Lyons and the applicant in which it was agreed that they would both treat each other professionally when Ms Lyons returned to work from stress leave.

10 Mr Herro noted that there was a period of 87 days from when the applicant was advised of the allegations, until the applicant's resignation from the Hospital. The applicant commenced employment at Bathurst on 25 August 2003.

11 Mr Herro submitted that the applicant was constructively dismissed and that her dismissal was harsh, unjust and unreasonable. The applicant sought the maximum of six months compensation of $26,890.50 and an order for costs pursuant to s181(2)(c) of the Act. Evidence for the applicant

12 The applicant provided two comprehensive affidavits and gave oral evidence. In her affidavit, the applicant detailed her work experience and qualifications. To the extent that these matters were not at issue in the proceedings, I do not repeat this evidence; suffice to note that the respondent regarded the applicant as a valuable and skilled employee. For the purposes of this decision, the relevant evidence was that which dealt with the approach taken by the respondent to Ms Lyons' grievance against the applicant.

13 The applicant deposed that when she first read the allegations against her she was devastated, shocked and upset. The allegations were against everything she believed in and she rejected them completely. She sought advice from the Union, the Area's Industrial Relations Manager and her personal solicitor. The applicant agreed Ms Blake had offered her mediation and support, but none was ever provided. The applicant said she could not understand how the allegations could have been made against her. She felt like she was on trial and felt betrayed and undermined by management.

14 At the meeting on 27 May, the applicant was informed that Ms Lyons was to be relocated when she returned to work under a rehabilitation plan proposed by her doctor. The applicant did not agree with these arrangements. The applicant believed that the respondent's Occupational Health and Safety policy had been breached in that as Ms Lyons' superior, she had not been consulted, at any stage, on the planned Return to Work ('RTW') program for Ms Lyons. In re-examination the applicant said she had requested details of Ms Lyons' RTW program because it was necessary for her to make referrals to her and generally liaise with her about Aboriginal family issues.

15 The applicant deposed that at the meeting on 25 June, Ms Blake said words to the effect that she was sorry about the way in which the grievance had been managed and that she (the applicant) had not been kept fully informed.

16 The applicant said that around 30 June she felt the changes proposed in respect to Ms Lyons' return to work were because of the allegations against her. She felt like she was being treated as if she was the guilty party. She described earlier conversations between Ms Lyons and herself, in which she had in fact assisted Ms Lyons with work issues.

17 On 11 July the applicant sought advice from Mr Herro as she felt she was receiving no support from the Hospital. She believed that other employees had been discussing confidential matters about her. She considered that the Area's guidelines and procedures had been breached and she felt no one in management cared about finding out the truth. She felt ignored and abandoned and could not tolerate the situation any longer.

18 After resigning her employment, the applicant said no one contacted her and she continued to feel deeply betrayed. She had hoped for a resolution of the issues when a letter was sent by Mr Herro to Mr Vorst on 1 August 2003. However, the Hospital had not responded to her concerns as it had promised and she felt deeply hurt and upset. No mediation had ever been arranged with Ms Lyons and she had never discussed the grievance with Ms Lyons directly.

19 In cross examination, the applicant agreed that she had not formally sought any assistance from the respondent and that she had a support person with her in meetings with management.

20 The applicant said that she had applied for the social work position at Bathurst sometime after 8 June and attended an interview within days of the application being sent. She had accepted employment with the Mid Western Area Health Service on 16 July and commenced employment on 25 August. She agreed there was no break in her service and all her outstanding entitlements were transferred.

21 The applicant agreed that she had attended a voluntary exit interview with Ms Blake on 11 August. She had written on the exit interview document that the reasons for her leaving were "no consultation regarding on-call policy. The grievance policy, lack of communication from management and let down by entire executive." In respect to the first matter, the applicant said it concerned a change in policy which had prevented call outs, and she had not agreed with it. However, she said that this issue was not the reason for her resignation.

22 The applicant acknowledged that Ms Blake had expressed regret at her resignation and had told her she would be missed. The applicant accepted that she had received no written warnings, had not been suspended and no findings had been made on the grievance. She conceded that she had never been threatened with dismissal or asked to resign. However, the applicant claimed she was not given an opportunity to respond to the allegations because there had never been any mediation with Ms Lyons. The respondent's policy required a grievance to be actioned within 5 days - not over 80 days.

23 The applicant agreed that she had worked out her notice and had not sought to withdraw her resignation during the notice period. However, she said she was never asked to withdraw her resignation. She had not sought reinstatement. The applicant said she had applied for another position because she needed to work. It had not been easy going to Bathurst and she hated being isolated and away from her friends and family in Wagga Wagga.

24 Ms Janine Learmont is a clinical support nurse in the intensive care/coronary unit at Wagga Wagga Base Hospital. She had known and worked with the applicant for fifteen years.

25 Ms Learmont attested to the applicant's integrity and professionalism as a Senior Social Worker. She believed her to be a very resourceful employee whose skills were called on by the nursing staff and other employees. She was respected in the Aboriginal community. Ms Learmont referred to the applicant's award of a Medal of the Order of Australia (OAM) and commendation from the Premier for her assistance in the Thredbo disaster.

26 Ms Learmont had attended five meetings with the management as the applicant's support person on 27 May, 28 May, 4 June, 25 June and 9 July. Ms Learmont corroborated the applicant's version of the conversations at these meetings. In particular, Ms Learmont deposed that in the meeting on 25 June, Ms Blake had apologized for the way the grievance had been handled and on 4 June, Mr Bailey had also acknowledged that the grievance had not been well handled. Ms Learmont agreed that none of the meetings she had attended discussed the applicant's termination of employment.

27 Mr Herro tendered the following documents in support of the applicant's case: i. Greater Murray Area Health Service Code of Conduct (Ex 5). ii. Extract from Greater Murray Area Health Service Employee Services Manual (Ex 6). iii. New South Wales Department of Health Grievance Resolution Procedures (Ex 7). iv. New South Wales Department of Health Policy Framework and Best Practice Guidelines for the Development of Health Service Grievance Management Systems (Ex 8). I shall return to these documents in due course.

28 In opening the respondent's case, Mr Bailey put that his submissions would be in two parts. The first part related to jurisdiction. Mr Bailey said that the Commission had no jurisdiction to deal with this matter under Pt 6 ch 2 of the Act as: (a) the applicant resigned her employment of her own free will; (b) the respondent took no action to terminate the applicant's employment; and (c) there had been no threat or intention to terminate the applicant's employment. Secondly, Mr Bailey submitted that as a matter of merit, the Commission would not intervene in the applicant's termination of employment.

29 Mr Bailey called four witnesses, all of whom are employed at Wagga Wagga Base Hospital. Leigh Blake - Manager of Medical and Chronic Care Kitty Bont - Early Injury Intervention Manager Lorraine Lyons - Aboriginal Liaison Officer Helen Martin - Business Manager

30 Ms Leigh Blake had known both the applicant and Ms Lyons since January 2003. In her affidavit, Ms Blake set out the various meetings she had with the applicant following the receipt of Ms Lyons' grievance on 15 May 2003. Three of the meetings are detailed in minutes taken at the time - 27 May, 28 May and 4 June. The dates, times, participants and substance of these meetings are largely uncontested. I need not repeat those matters.

31 Ms Blake said that she met with Ms Lyons at her request at her home on 16 May. They discussed both parties' rights, the Code of Conduct and the grievance process. She then informed senior management of the grievance issue. It was stressed that confidentiality should be observed.

32 Ms Blake said she had sought to hand deliver the 19 May letter to the applicant, but she was not at work. Ms Blake agreed that an administration officer handed the letter to the applicant the next day.

33 Ms Blake deposed that on 21 May the applicant requested a postponement of the fact finding interview. This had been agreed too. Ms Blake said she had assured the applicant that due process would be followed in a fair and impartial manner and that both parties would be treated equally. Ms Blake deposed that she offered the applicant access to the Employee Assistance Program (EAP), but she had declined the offer.

34 At the meeting on 27 May, Ms Blake informed the applicant of Ms Lyons' RTW program as recommended by her doctor, Doctor Megan Rudder. The applicant had disagreed with the program. At the same meeting, the applicant had agreed that she was aware of, and understood the grievance process. Ms Blake had also offered outside mediation. She had made this offer as she had wanted both parties to have support.

35 At the 28 May meeting, the applicant had stated again that she had not been consulted about Ms Lyons' RTW Program and she disagreed with the decision. The applicant was not prepared to discuss the grievance issue and requested further details of dates, times and places. Ms Blake had asked if there was anything she could do to help the applicant. She had replied that she just wanted the information she had requested. Ms Blake assured the applicant she would take steps to get the information as she didn't want the matter to "go on and on."

36 Ms Blake deposed that she was concerned with obtaining further details from Ms Lyons in view of her RTW program. She had consulted with Mr Bailey who agreed to assist with a mediation at a meeting on 3 June. The applicant had agreed to this. However, the meeting did not take place until the next day. Ms Blake had apologised to the applicant for the confusion. At this meeting Mr Bailey had accepted that the applicant's request for further details was reasonable and offered two options in moving the matter further: (1) If no details were provided by Ms Lyons, the matter would be considered closed. (2) If further details were provided, the applicant would be given an opportunity to consider them before responding.

37 Ms Blake had arranged to meet the applicant on 5 June, but she did not attend due to a mix up. The meeting then occurred on 10 June. The meeting discussed a change of offices for Ms Lyons. Ms Blake said that the applicant was upset that she had not been consulted about the move. However, Ms Blake had explained that, a part of Ms Lyons' RTW program had required no direct contact between the applicant and Ms Lyons. On the same day, the Nurse Unit Manager, Rachel Russel approached Ms Blake expressing concern for the applicant. Ms Russell thought that counselling might help. However, Ms Blake had told Ms Russell the applicant had declined offers of counselling on several occasions.

38 On 15 June, Ms Blake had informed the applicant that Ms Lyons would be returning to work on 27 June and Ms Kitty Bont would be her liaison person. Later that day Ms Blake had a discussion with the applicant concerning a solicitor's letter sent to the General Manager. The applicant was dissatisfied that the General Manager had not responded himself.

39 On 8 July, Ms Blake gave the applicant the letter from Ms Lyons detailing her allegations. The next day a meeting was held with the applicant, Ms Learmont, Ms Bont, Ms Lyons and Mr Ingram (support person) in which it was agreed that both parties would act professionally towards each other.

40 Ms Blake said she had been surprised by the applicant's resignation before the grievance process had been actioned. Ms Blake had written to the applicant on 25 July expressing her regret at her resignation. An exit interview was organised and Ms Blake had consulted with the applicant, on the suitability of persons to act in her position when she left. During the exit interview, Ms Blake said she had apologised several times for the length of time the process had taken. She had stressed it was because she was obliged to abide by Dr Rudder's advice.

41 Ms Blake believed that the applicant did not appreciate that the Hospital had a duty of care to Ms Lyons. The medical advice was that the applicant should have no contact with Ms Lyons and that had to be complied with.

42 Ms Blake said she had always treated the applicant with care and compassion. She had offered her support and counselling. There was never any threat of discipline, nor was she asked to resign. Ms Blake had told her she would be missed by the staff and the community.

43 In cross examination, Ms Blake agreed that the grievance had not been reported to the Director General of the Department. Ms Blake said she was not familiar with the Department of Health Grievance Resolution Procedures or the Department of Health Best Practice Guidelines. Rather, she had relied on the Greater Murray Area Health Service policy. She agreed that the Area's Code of Conduct and Employees Services Manual require grievances to be resolved in a timely fashion. However, she had been constrained by Ms Lyons' WorkCover certificate.

44 Ms Blake agreed that Dr Rudder's medical certificate, which had advised of no direct contact with the applicant, was dated 3 July. However, she believed there had been earlier phone contact between Ms Bont and the Doctor in which this advice was conveyed. In any event, Ms Lyons wasn't at work before 3 July.

45 A mediation had been arranged involving Mr Bailey, although Ms Blake conceded that it had not involved a face to face meeting between the applicant and Ms Lyons. Ms Blake said that each time she tried to arrange a meeting with Ms Lyons, she was told she was not fit to come to work. Ms Blake said she had relied on Ms Bont's advice that Ms Lyons wasn't well enough.

46 Ms Blake agreed that Ms Lyons' original complaint was vague and general and it had taken her 41 days to obtain further details. Ms Blake had tried to get the information earlier, but could not do so. She agreed that the later details contained no dates or times. It had been hoped that at a face to face meeting Ms Lyons would be able to explain her grievance. This meeting had not occurred because of Dr Rudder's advice.

47 Ms Blake agreed that, in hindsight, it would have been reasonable to have put a time limit on Ms Lyons to give details of her allegations. Ms Blake said she had not done so because she did not want to cause more grief for Ms Lyons. Ms Blake said she had tried very hard to be fair and impartial as she felt for both employees. While she had apologised to the applicant for the delays, Ms Blake said she could understand how the applicant may have felt.

48 Ms Blake said she had not responded immediately to the applicant's resignation because she had been on sick leave when it was submitted. Ms Blake agreed that she had not encouraged the applicant to withdraw her resignation. She believed the applicant had resigned of her own free will. However, she had regretted her resignation and told her she was very sad to see her go. She wished the applicant well and told her she would be missed.

49 Ms Blake agreed that Ms Lyons' last day at work was 17 April 2003 and her grievance was received a month later. Ms Blake believed that Ms Lyons had been at university during this time.

50 Ms Blake deposed that she was not aware of any response from the Organisation Development and Learning Unit (ODLU) as indicated in the General Manager's letter of 22 August, in response to Mr Herro's letter of 1 August 2003.

51 Ms Blake said in re-examination that at no time in her meetings with the applicant after 8 July, had the applicant responded to the particulars provided by Ms Lyons.

52 Ms Kitty Bont has worked as the Hospital's Early Injury Intervention Manager since April 1999. She described her responsibilities as: i. Rehabilitation Co-ordination ii. Creation of Primary Communication Link Between Injured Workers, Doctors and Professional Organisations iii. Provision of Monthly Reports to Management and Executives iv. Acting as a communication link between general manager/stream manager and with reference to injured personnel v. Promotion of Early Injury Management to assist with achieving a reduction of Workers Compensation Costs for the organisation

53 Ms Bont deposed that she had been informed by Ms Blake of Ms Lyons' absence from work on 16 May 2003. She said Ms Blake gave her a WorkCover medical certificate (showing her to be totally unfit for work) signed and dated by Dr Rudder on 15 May 2003 and a GIO employee compensation claim form. Ms Blake had requested that she commence injury management processes for Ms Lyons.

54 On 22 May, Ms Bont spoke to Dr Rudder who had emphasised that Ms Lyons was not to have any contact with the applicant. The Doctor had also asked what the Hospital was doing to restructure the workplace to facilitate Ms Lyons' speedy return to work.

55 Ms Bont said she had met Ms Lyons at her home on 23 May. A consent form was signed to allow Ms Bont to speak to the Doctor. Ongoing injury management took place with the Doctor, GIO and referred specialists. Ms Blake had been continually kept informed of the rehabilitation progress.

56 On 27 June, Ms Bont gave a report to Ms Blake, compiled by Ms Lyons, which detailed the allegations. On 30 June, Ms Bont received an email from the applicant seeking details of Ms Lyons' RTW program. Ms Bont had replied in terms of the medical certificate "no contact with former supervisor, fit only for one visit to the workplace in this time to arrange office." Ms Bont had informed the applicant that Dr Rudder would review the situation on 3 July.

57 On 3 July, Ms Bont had received a letter from Dr Rudder which indicated that any meeting between the parties should not deal with the grievance. The meeting should only confirm that they would both relate towards one another in a professional manner.

58 Dr Rudder had issued a final WorkCover certificate on 6 November 2003 which indicated Ms Lyons could return to her pre injury hours and duties. However, she actually returned part time before this date. During this time, Ms Bont said Ms Lyons had been on medication and had her "good and bad days."

59 In cross examination, Ms Bont said she was not involved in the grievance process. Her only concern was getting Ms Lyons back to work. Ms Bont said she had numerous phone conversations with Dr Rudder as Ms Lyons' condition had actually deteriorated. Regular contact with medical practitioners was part of her role. Most of the communications she had with doctors was by phone. Ms Bont said she was not aware of any previous anxieties or stress suffered by Ms Lyons in her previous employment.

60 Ms Lorraine Lyons has been employed as the Aboriginal Liaison Officer for the Greater Murray Area Health Service since November 2002.

61 Ms Lyons said that she had known the applicant since January 2003 as her direct supervisor. However, in oral evidence she said the applicant had been her supervisor for twelve months. Ms Lyons deposed that in the first month of working with the applicant she had experienced a change in her behaviour towards her. Ms Lyons had felt she had no choice but to put her concerns to Ms Blake.

62 Ms Lyons said that the outcome of her complaint was a change of office and a change of supervisor. Her doctor had advised her to meet the applicant as part of her RTW plan. Ms Lyons had provided further details of her grievances verbally to Ms Bont who then passed them on to Ms Blake. She agreed she had not signed the letter.

63 In cross examination, Ms Lyons was asked if she had a problem remembering times and dates as she had said the applicant was her supervisor for twelve months when it was in fact only three months. She agreed that she did have trouble with "bits and pieces." Ms Lyons said she could not give dates for when the incidents had occurred. She claimed that it wasn't just one incident, but various things happened over a couple of months.

64 Ms Lyons agreed that her last day of work was 17 April and her grievance letter was one month later. She said she had been at university during this time. Ms Lyons agreed she had suffered a prior trauma when she had worked at Wagga Wagga Womens' Refuge.

65 Ms Lyons said she had felt intimidated by the applicant despite the fact that she had assisted her to gain approval for leave she had requested and had also allowed her to pick up her daughter during work time. Ms Lyons agreed she had never raised her grievances directly with the applicant, as she didn't feel comfortable to be able to do so.

66 Ms Helen Martin had known the applicant for seven years. Ms Martin attended the meetings earlier referred to and had taken the minutes.

67 On 27 June, Ms Martin returned a call from a manager at Bathurst Community Health Service. The applicant had given Ms Martin's name to an interview panel. The manager requested a reference check on the applicant. The conversation with this person lasted eleven minutes and forty-two seconds.

68 Ms Martin said that the applicant had not asked her to be a referee, but she had given her a good reference. She had told the manager that the applicant had been a good manager and had worked well at the hospital.

69 Mr Herro submitted that the real reason the applicant had initiated this litigation was because of the mismanagement of the grievance made against her while she was employed by the Wagga Wagga Base Hospital. He noted that the on-call issue, referred to at the exit interview, was not a motivating factor for her resignation.

70 Mr Herro put that it was gross mismanagement for the respondent not to have available to it, the Department of Health policies on the handling of grievances. The Area's own manuals were also not complied with. He said that these breaches were not just minor breaches of policy. The crucial factor for the applicant was that the time lines for processing the grievance had been repeatedly breached by the respondent. Ms Blake had admitted that she should have put a time limit on Ms Lyons providing further details of the allegations. In addition, discussion between the direct parties had not occurred.

71 Mr Herro submitted that while Ms Lyons claimed to be intimidated by the applicant, there were two persons whose interests needed to be considered. He speculated that Ms Lyons may have been frightened because she had taken sick leave and not submitted a WorkCover certificate. She may have felt intimidated by presenting this to the applicant as her supervisor. He highlighted Ms Lyons' evidence which "was that she mixed up" times, dates and places. She had said she had worked with the applicant for twelve months, when in fact it was only three months.

72 Mr Herro traced the events which followed the lodging of the grievance. Mr Herro put that Ms Blake's reaction to the grievance was to "fire a missile" - the vague and unspecific allegations in the "heavy" letter of 19 May. Ms Blake didn't even have the courtesy to deliver the letter herself with an explanation. A week went by before the meeting on 27 May. When the applicant asked for further details, the respondent regarded this request as reasonable. However, it put no time frames on securing this information. Basic fairness dictated that time frames should have applied, as was recognised in the Area's policies. The applicant was left "hanging" until 8 July. This was grossly unfair to the applicant.

73 Mr Herro argued that the applicant took her own steps to have the matter dealt with promptly and properly. She explained her predicament to Mr Vorst and told him the procedures had not been followed and that she had been treated unfairly. Mr Vorst did nothing, so the applicant wrote him a letter, to which Mr Vorst had Ms Blake reply.

74 Mr Herro submitted that by this time, with serious allegations and vague evidence, the applicant's mental state was "very, very poor and justifiably so." There was a five minute meeting with Ms Lyons on 9 July, but no resolution of the problem. Mr Herro agreed that Dr Rudder had advised that such a meeting should not discuss the grievance. However, he said the respondent relied on the doctor's advice when it was its responsibility to address the problem.

75 Mr Herro submitted that in view of the applicant's state of mind, and the mismanagement of the grievance, she felt she could no longer tolerate the situation and had been forced to resign. Ms Blake took no steps to encourage her not to do so. The applicant was forced to leave Wagga Wagga, her friends and family to take a position at Bathurst.

76 Mr Herro identified the various breaches of the respondent's policies as: (a) The Director General should have been notified after five days. Notice was never given. (b) Mediation was proposed, but not followed through. (c) Grievances should have been dealt with in a timely fashion. (d) The respondent did not make an assessment of the grievance. (e) There was no identification of when the incident/s had taken place. (f) The applicant was being treated as if she was the guilty party. (g) A formal meeting should have been arranged by the respondent, even if Ms Lyons was not able to be involved, in order for the applicant to respond to the allegations.

77 Mr Herro put further submissions seeking costs against the respondent. He referred to the respondent's offer of $5,000 and a counter offer of $15,000 by the applicant to settle the claim. That offer had not been responded to. Mr Herro said the matter should never have got to this point. The applicant had been forced to obtain legal advice after the Union refused to take up her case. Mr Herro had written a letter to the respondent which had not been properly attended to. The applicant had been forced to resign and relocate to Bathurst.

78 Mr Bailey sought to clarify the application of the Department of Health policies to this matter. He distinguished the policies which apply to the Department's own employees as distinct to guidance provided to Area Health Services for their own employees.

79 Mr Bailey said that the respondent was hampered in dealing with the grievance by the advice received from Dr Rudder, not to raise the issue at that time. Ms Bont had been in regular contact with the doctor and the doctor's advice was consistent. Nevertheless, Mr Bailey said that the meeting on 4 June identified that if no further details were provided, the matter would be closed and, if details were provided the applicant would be given an opportunity to consider them before responding. In these circumstances, the respondent had not acted pre-emptively.

80 Despite being provided with further details of the allegations, the applicant did not respond and continued to act as an employee, including during her notice period. She voluntarily participated in the exit interview and indicated a willingness to work for the Area in the future. However, sometime in early June she was actively seeking alternative employment and was successful.

81 Without ever responding to the details of the allegations, the applicant had accepted another position and resigned. By the time of Mr Herro's letter (1 August) the applicant had already resigned. As to whether the resignation had been freely given, Mr Bailey relied on Allison v Bega Valley Council (1995) 63 IR 68 and Shankar v Neumo Packaging Systems Pty Limited [2000] NSWIRComm227.

82 Mr Bailey said the evidence was that the applicant was a long standing and well regarded employee. It was understandable that she would be upset by the grievance. However, the respondent had put a process in place for dealing with it. The respondent had a duty of care to act in accordance with Ms Lyon's medical advice.

83 As to the conduct of the employer, Mr Bailey submitted that as soon as the grievance was raised, it was promptly brought to the applicant's attention. She was given time to respond. Various managers expressed regret for the delays, but were hampered by Dr Rudder's advice. Ms Blake offered the applicant assistance and she had a support person with her at meetings. At no stage, was the applicant disciplined, threatened with dismissal, suspended or asked to resign. An exit interview was voluntarily conducted. Three days after her effective resignation, she commenced employment with another Area Health Service with all her entitlements transferred.

84 Mr Bailey stressed that, at no time, had the respondent intended to terminate the applicant's employment. The fact that she perceived she was being treated unfairly did not amount to an intention to terminate her employment.

85 Mr Bailey dealt with the provisions of s88 of the Act. He said there was no reason given for the applicant's termination of employment. No findings on the grievance were ever made. Even if there had been, there was no evidence that such matters would have warranted dismissal. The applicant at no time sought reinstatement or re-employment. She did not respond to the allegations and was given no warnings of unsatisfactory conduct. The application was therefore without merit.

86 As to costs Mr Bailey made no application. He rejected the applicant's claim for costs by submitting that at all times the respondent believed the applicant's claim was outside the Commission's jurisdiction and without merit. It had made a reasonable offer of $5,000 to help the applicant defray her costs of moving to Bathurst.

87 Mr Herro put that it was wrong to suggest the applicant had not responded to the 8 July details of the allegations. His letter of 1 August had comprehensively responded on the applicant's behalf.

88 Mr Herro accepted the relevant law was that discussed in the authorities cited by Mr Bailey. He added reference to Antonakopoulos v State Bank of New South Wales (1999) 91 IR 385.

89 Understandably, a primary focus of the applicant's evidence was intended to demonstrate her dedicated and exemplary service, her integrity and professionalism and outstanding contribution to the community. In this regard, she was ably supported by the evidence of Ms Learmont. This evidence was not disputed by the respondent and indeed, it must be said, was corroborated by Ms Blake's comments that she regretted the applicant's resignation and that she would be missed. I believe Ms Blake's views to be genuinely held. The Commission has no reason to doubt the applicant's evidence and I accept, unreservedly, that she is a person of the highest integrity and professional dedication.

90 Mr Herro emphasised that the applicant denied absolutely and unequivocally the allegations made against her by Ms Lyons. There can be no doubt that the applicant was genuinely devastated by the allegations and completely shocked by them. However, the issue to be determined in this case is not whether the applicant was guilty of any wrongdoing. To the extent that the evidence traversed both the applicant's denials and her past employment history, I do not believe it necessary to make findings on whether the allegations were substantiated, even on a prima facie basis.

91 Even after her notice of resignation the applicant had sought to resolve the issues she believed had left a cloud over her reputation and professionalism. One might reasonably assume that the concentration of the above matters were intended to have the Commission vindicate her position and clear her name. I am not in a position to do so, because the outcome of this case does not hinge on a finding as to whether the applicant's dismissal was harsh, unreasonable or unjust but rather, whether as matters of fact and law, a dismissal had been actually effected by the respondent.

92 Having made these observations, the Commission now proposes to discuss the principles of constructive dismissal. 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 willful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

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

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer.

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

93 As a matter of plain definition, a forced resignation will invariably be found to be a termination of employment at the initiative of the employer; thus meeting the test, in my opinion, 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.

94 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 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 .

95 The comments of Macken J in Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 at 393 are 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. I would also make reference to Essential Personnel Pty Ltd v Wray (1996) 70 IR 109, where the Full Bench stated at 114: That principle is that for a resignation from employment to be conceived to be a termination of employment at the initiative of the employer, it is necessary that the act or conduct of the employer results directly or consequentially in the termination of the employment, and that the employment relationship is not voluntarily left by the employee. Notwithstanding the voluntary character of a resignation, the termination may be taken to be at the initiative of the employer if, had the employer not taken the action it did, the employee would have remained in the employment relationship, and if, because of the action or conduct of the employer, the employee had no effective or real choice but to resign.

96 It needs to be stressed that notwithstanding the fact that an employee may hold a genuine belief that he/she had been forced to resign, such a contention is not the test of a constructive dismissal. The correct test is whether by the actions or inactions of the employer, it was the effective initiator of the termination of employment. I return then to the facts and circumstances of this case.

97 As I said on a number of occasions during the proceedings, we can all be wise in hindsight. It was frankly conceded by the respondent that perhaps the matter could have been handled differently - Ms Blake and Mr Bailey acknowledged as much. Indeed, it seems to me that the applicant might also have acted differently in hindsight. However, strictly speaking the Commission is not required to consider "what might have been." The Commission must determine whether the actions or inactions of the employer were such as to force the applicant to resign.

98 While I accept the applicant felt genuinely aggrieved that Ms Lyons' allegations were not actioned with sufficient expedition, the respondent, in my view, took no steps to force the applicant to resign. On the contrary, the evidence was that the respondent had: 1. been involved in a number of meetings with the applicant and her support person about the matter, 2. agreed to postpone, at the applicant's request, the initial fact finding interview, 3. offered the applicant access to the EAP which she declined, 4. not threatened the applicant with dismissal or asked her to resign, 5. invoked no disciplinary action, 6. through Ms Blake sincerely regretted the applicant's resignation and said she would be missed, 7. sought to manage a difficult grievance complicated by a workers' compensation claim, and 8. not prejudiced the applicant's future employment in any way. Indeed, Ms Martin gave a very good reference in an inquiry from her prospective employer at Bathurst.

99 In light of these circumstances, I cannot possibly rationalise an argument that the respondent was intent on securing the applicant's resignation or by its actions it had forced her to resign. In short, I am bound to conclude that the applicant's termination of employment could, in no sense, be regarded as being at the employer's initiative.

100 The Commission is disposed to observe that Mr Herro mounted a thorough, vigorous and at times, impassioned defence of the applicant's case. However, when viewed objectively it seems to me that the applicant was the master of her own destiny. Irrespective of her genuine feelings of unhappiness and betrayal she actively and successfully initiated her own answer to the grievance. She applied for, and secured alternative employment before the respondent had concluded its investigation of the grievance; let alone before any finding was made on the grievance.

101 It was also apparent from the evidence of Ms Martin, that the applicant had attended an interview at Bathurst sometime before 27 June when Ms Martin acted as a referee for her job application at Bathurst. That is, the applicant was actively seeking alternative employment without having received the details of the allegations which she was so insistent on receiving. Indeed, the applicant must have contemplated resignation only a few weeks after 20 May and well before it might even be remotely suggested that the investigation was not proceeding with sufficient haste.

102 Mr Herro complained that the respondent did not reply in any meaningful way to his letter of 1 August. It must be said that the respondent was under no obligation to continue its investigation into the grievance once the applicant had resigned. The applicant's resignation effectively terminated the investigation.

103 Further investigation for no practical purpose would have been a waste of the respondent's time and resources. Moreover, the applicant's move to Bathurst would have created logistical difficulties for her and ongoing trauma and distress for both parties.

104 In my view, it was also of some significance, that at least five persons in management, including the General Manager Mr Vorst, were directly involved, to varying degrees, in meetings with the applicant. In addition to Mr Vorst, they were Ms Blake, Ms Bont, Ms Martin and Mr Bailey. It could hardly be said that the respondent had displayed a disinterest in the matter.

105 I also note that the delay in expediting the investigation was not all the fault of the respondent. The applicant had requested a postponement of the initial fact finding meeting from 22 May to 27 May. At a meeting the next day the applicant declined to discuss the issues until she had details of dates, times and places (a not unreasonable request, I hasten to add). In addition, I would observe that the applicant did not respond, in any detailed way, to the allegations until her solicitor's letter of 1 August - two weeks after her resignation. At that time, she had received no additional information to that which she had received on 8 July.

106 In my opinion, if there was any genuine view that the investigation was being unduly delayed, it could not possibly be due to the action or inaction of the respondent. In reaching this conclusion, I have in mind that this was a classic case of an employer being in a position of being "damned if you do and damned if you don't." The respondent could not, as a matter of practicality or fairness, address the grievance of Ms Lyons until she returned to work under her doctor's advisement. To have acted otherwise would have been improper and wrong and would have invited legitimate criticism of the respondent.

107 As earlier mentioned, Ms Blake and Mr Bailey had expressed a view that the grievance could have been better handled. Ms Blake agreed she had apologised to the applicant for the delays. In my view, rather than criticising the respondent for these admissions, they demonstrated its genuine concern and appreciation for the applicant's situation - hardly the attitude of an employer wishing to see the end of an employee's employment.

108 The Commission agrees with Mr Bailey that in a strict sense, the relevant policies and procedures applicable to this matter are not those of the Department of Health, but rather are those contained in the Greater Murray Area Health Service Code of Conduct and the Employee Services Manual. In my opinion, the relevant section dealing with the responsibility of management is at 9.2.6, which provides as follows: Grievance Procedures Summary MANAGER 1. Choose a private and quiet place to speak to the employee. 2. Receive the grievance sympathetically and seriously. 3. Listen carefully and clarify statements which seem unclear. 4. Take accurate notes using the staff members own words 5. Ask the person what outcome they want. 6. If the person wants an investigation, assure then that it will be done promptly and confidentially. 7. If required, seek advice from the Industrial Relations Manager, Divisional Manager or Human Resources Manager. 8. If the grievance involves (an)other person(s) then they should be interviewed separately and impartially. 9. State to the other(s) exactly what the grievance involves. 10. Once again, take accurate notes. 11. Keep the employee informed of the process of the investigation and whether or not the desired outcome has been achieved.

109 It is plain enough that the Department of Health documents (Exhibits 7 and 8) are guidelines and advice to Area Health Services in developing their own grievance management policies and procedures. So much so is clear from 2.3.2 of Exhibit 8.

110 Notwithstanding that it might be technically argued that Mr Herro was able to successfully demonstrate that the respondent's policies had not been complied with, his reliance on these breaches, in my assessment, overlooked two fundamental difficulties beyond the respondent's control. Firstly, the time frames could not be complied with because Ms Lyons was not at work and there was some understandable risk that her medical condition might worsen if the issue was not handled sensitively. Secondly, the respondent was faced with Dr Rudder's RTW conditions which made it impossible to comply with the steps in the policies in a prompt or timely fashion. On a close and objective analysis of the respondent's Employee Services Manual, particularly clause 9.2.6, I can find no basis for concluding that it was in fundamental breach of its policies such as to justify any criticism.

111 I turn now to raise two questions which have caused me some uneasiness. Firstly, there was no evidence that the applicant had suffered any financial loss from her termination of employment. Indeed, in reviewing the applicant's pay records it would appear she actually went to a higher paid job in Bathurst. The records reveal her salary at Wagga Wagga was $1149.18 per week, whereas her rate at Bathurst was disclosed at $1233.60 per week.

112 The applicant commenced employment at Bathurst nine days after her resignation. Her accrued entitlements were all transferred. Her central complaint was that she was forced to leave Wagga Wagga and felt isolated and lonely away from her family, friends and community. As a result, Mr Herro sought the maximum relief in terms of monetary compensation.

113 The applicant seemingly perceived no difficulty in restoring the working relationship with Ms Lyons or returning to Wagga Wagga Base Hospital at some future time. The applicant had sought to be involved in Ms Lyons RTW program and complained that she had not been consulted. She attended a meeting with Ms Lyons (albeit brief) where it was agreed that both parties would treat each other professionally. (I note here that the meeting was brief because Ms Lyon's treating doctor had recommended it not discuss the grievance). In other words, had the applicant's case succeeded there would appear to be no impracticality in her mind, as to reinstatement - yet she never asked for it.

114 Viewed in this context and bearing in mind the respondent's favourable view of her, I have some difficulty comprehending why the applicant did not seek reinstatement in these proceedings. Moreover, even if the applicant had been able to establish that she had been constructively and unfairly dismissed, I do not believe, having regard for s89(6) of the Act, that any discretionary assessment of compensation would be anything remotely close to six months salary. In any event, I need not travel past my determination of the preliminary jurisdictional question.

115 Secondly, having regard for all the circumstances, it is a mystery to me why the applicant chose to resign. Perhaps she was of the belief that by taking the drastic step of giving notice of resignation, that this would act as a catalyst to speedily resolving the grievance issue. If it was designed for such a purpose, then it failed. In my opinion, the respondent was under no obligation to plead for the applicant's reconsideration of her resignation, nor was it in a position to hastily wind up the investigation of the grievance when Ms Lyons was not at work on doctor's advice. I note that, at no time during her notice of resignation, did the applicant consider withdrawing her resignation.

116 Notwithstanding these observations, I would conclude this matter by finding that the applicant's resignation was not as a result of any action or inaction of the respondent such as to ground a finding that the termination of employment was at the initiative of the employer. Her claim of being constructively dismissed, therefore cannot succeed. The application must be dismissed for want of jurisdiction.

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