Allison v Bega Valley Council 63 IR 68

When asked, if she would have resigned if she had known about the one month, she said " Nothing would have changed. I had already spoken to Terry on that day and I couldn't win anything. I just felt it was futile ". 14 Mr Hamilton gave evidence that the disciplinary meeting was conducted in a friendly manner; everyone liked the applicant as a person. However, he added, the needs of the Council had to take precedence over personal feelings.

He said that he told the applicant that the Council would give her one month to improve her performance. The applicant agreed to " think about things " and come back to the President the following week.

Mr Hamilton acknowledged that the Committee Meeting, which directed him to talk to the applicant, did not minute this direction. He did not believe it was necessary for Ms Cinis to attend.

He acknowledged that he had told the applicant not to worry about Jean (the Vice President). If she had any problems, to come back to him.

Written confirmation of the meeting was sent the following day.

Ms Stroud gave evidence that she typed this letter on Friday 5 May, after the President dictated it to her.

Ms Cinis said the letter would have been handed to the applicant on the Friday, but she called in sick, so it was posted that afternoon. She said the dispatch book records it was sent on 5 May (T.p147). 15 Ms Cinis gave evidence that the applicant had lunch with the President and herself after the meeting, chatting with them, appearing to be alright and then leaving for her TAFE course 16 Mr Boghossian sought to impugn the respondent's case for failing to bring any evidence from Mr Bird. Mr Hamilton explained that Mr Bird had resigned and was travelling around the state. Unsuccessful attempts had been made to contact him and have him make a statement (T.p106).

17 On Monday May 8, the applicant attended for work to tender her resignation letter. However, she had panicked and left the letter on a table in the kitchen. Her letter, Ex'4' was in these terms: Terry and Jean, This is to let you know I am leaving the job, as of today, Monday 8th May. I'm leaving because I am unable to cope with the pressure and expectations placed on me since I first started work here. I have been keeping this to myself for sometime. I will write to management later, when I can think properly, of what I want to say. I don't expect you to pay me for this week. If anything is due to me eg travel for last month, etc. please forward this on to me. Robyn

She left the keys in the letterbox. 18 The applicant said she received the 5 May letter a few days later, with a second letter acknowledging her resignation in the following terms: Dear Robyn We were very disappointed to arrive at the office this morning to find your letter of resignation and the keys to the office left in the letterbox without security. The appropriate method of resignation would have been to approach me as President to discuss your termination and arrive at a suitable settlement. Under the circumstances it has been decided to continue salary payments into your bank up to and including 25th May 2000 to cover your holiday entitlement. A cheque for your travel entitlement is enclosed. We acknowledge return of the Mobile Phone issued to you. The battery charger was not returned. Could you please arrange to have the charger returned to this office. Regards (sgd) Terry Hamilton President - WSRPTC

19 Soon after, the applicant wrote to all the tenant groups she had contact with, apologising for her departure and inviting them to contact her (Ex'B'). None did; most called the Council saying they didn't know why the applicant went to the trouble of hand delivering letters when the matter had nothing to do with them. None had complained about her resignation. 20 Ms Stroud gave evidence that, upon attending for work on 8 May, she found the applicant's resignation in a bundle of letters, under the door. She gave it to the President. A blue handwritten note was left on a desk, indicating that the keys were in the unsecured letterbox. 21 Mr Hamilton gave evidence that he was disappointed and shocked with the resignation and the fact she did not contact the Committee after stating she would do so. The applicant was paid up to 25 July.

22 In cross examination, the applicant said that she expected to take direction from the Management Committee as a whole - not just the President and Vice President. She would not accept that the President and Vice President were delegated by the Committee to manage the day to day operation of the Council. She believed she had a right to have a say, and not be excluded from the Management Committee meetings. 23 The applicant was closely questioned as to her grievances with the employer. She defined "undermining her authority" as another worker doing her work. She conceded that no one had ever suggested, or accused her in respect to the break ins at the office. She acknowledged that the employer was "very generous" in paying her for time off when her mother died. (T.p41) 24 The applicant acknowledged she did not contact the employer after receiving the 5 May letter, or follow up her own indication in her resignation letter, that she would contact management again. 25 She was not aware that, one of the persons she thought was taking her job, Donna, now worked for the Department of Housing. The person, Marie, who had told her to "watch her back" only came in once a month. 26 The applicant was asked about an inconsistency in her evidence that the employer had wanted to get rid of her, unyet, paid her three weeks' pay, to which she was not entitled. 27 The applicant was questioned as to what she overheard the Vice President saying to another employee in March, that "Robyn will have to go". She assumed that it was a plot to get rid of her, but accepted she did not hear the whole conversation. She did not hear the whole conversation when the President was discussing insurance policies. 28 Mr Hamilton said that the applicant often deputised for him at top level meetings, but he received little, or no, feedback and sometimes received an entirely different version of events. 29 The respondent was concerned with the applicant's performance following the death of her mother and in December 1999, reduced her workload by more than half. This required her to concentrate on forming new tenant groups.

Ms Cinis gave evidence that the applicant's workload was discussed at the February Management meeting (T.p149), having been raised by Mr Hamilton. 30 In cross examination, Mr Hamilton said he didn't think it was necessary to issue a new job description, because it was a reduced workload and he had discussed it with her before the Christmas break. 31 Mr Hamilton said the applicant constantly made notes in her diaries (Ms Cinis said she had three) but did not enter important dates in the office master diary. She also had forgotten to pick up clients for important meetings, lost her mobile phone and had not prepared "flyers" in time. 32 Ms Cinis gave emotional evidence, describing the applicant as a friend, a "nice, very caring person". Ms Cinis said that she obviously was unaware of what the applicant was thinking. She, and the applicant, would go out socially, shop together and the applicant would frequently visit her for a chat and a cup of tea.

Her attitude and performance changed, Ms Cinis said, after the death of her mother. Ms Cinis described her as " increasingly vague ". This change was expected and Management was prepared to give her time to get over it. However, she was very forgetful - leaving keys around, losing her mobile, failing to pick people up, failing to make diary entries. Ms Cinis said the applicant became unapproachable, staying in the office and not going into the field. 33 Mr Hamilton described the amount of time off the applicant had, which included three weeks after her mother died, time off for a friend's funeral and a wedding, when her brother visited, 2½ weeks at Christmas and four weeks' annual leave and odd days off for family reasons. All this time was paid (T.p75-76). Mr Hamilton estimated the applicant had seven weeks off, with pay, during fifteen months employment. 34 Ms Cinis in cross examination, said she could never re-employ the applicant in view of the allegations she had made in her statements.

35 Mr Boghossian, for the applicant, submitted that the applicant was forced to resign for the following reasons:

1. The President and Vice President gave her confusing and inconsistent instructions.

2. Her initiative was frustrated, despite her regular contact with the tenant groups.

3. Her work performance was adequate and her work load was not halved in December 1999 as claimed by the respondent.

4. The Management barred her from the monthly Committee meetings and other meetings, further undermining her position.

5. The applicant suffered immense personal and mental anguish and had no one to turn to.

Mr Boghossian referred me to Allison v Bega Valley Council 63 IR 68.

36 Mr Godfrey, for the respondent, submitted that the application should be dismissed, for want of jurisdiction, because:

1. There was no evidence that the termination of employment was at the initiative of the employer, or that the alleged actions of the employer caused the termination.

2. Resigning because one is unhappy in their work is to take the notion of constructive dismissal too far.

3. Whether the applicant felt she had no alternative to resign does not mean she was forced to resign.

4. The applicant's statements are full of wild and unsubstantiated allegations, refuted by the witnesses called by the respondent. She brought no evidence to support her allegations.

5. Three witnesses were called by the respondent; all of whom gave corroborative and supporting evidence.

6. The disciplinary meeting was informal; giving the applicant a chance to improve her performance before more formal processes might be put into place.

7. The respondent treated the applicant with absolute fairness and considerable concern for her welfare.

8. Even if there was a dismissal, the applicant was never treated in a way which was harsh, unreasonable or unjust. 37 In reply, Mr Boghossian said:

1. The respondent's three witnesses gave inconsistent evidence particularly about meetings and dates and the applicant's work performance.

2. The applicant seeks twelve weeks' pay as compensation for the pain she has experienced.

Principles of Constructive Dismissal 38 It is trite law that there is no jurisdiction for the Commission to hear and determine an application under Pt 6 ch 2 of the Act, if there was no dismissal of the employee. The fact a dismissal occurred will usually be uncontroversial. Whether such dismissal was unfair, is, of course, an entirely different matter, which will be determined on the merits of the case. Such a finding may well lay the foundation for an order for reinstatement, re-employment, or in the more common case, compensation. 39 In the instant matter before the Commission the onus rests upon the applicant to firstly, overcome the jurisdictional hurdle; and secondly, convince me of the merits of the case. Only then might relief be ordered.

In other words, the first issue is to establish whether a dismissal, in fact and law, actually occurred. An affirmative finding on this point will lead to the second stage of determining whether such dismissal was unfair. Also relevant is whether the dismissal had procedural faults and deficiencies which might render it unfair. 40 There is no doubt that the applicant resigned from her employment. So much is plainly evident from her resignation letter of 8 May and the evidence adduced during the case. What the Commission must do, is examine and decide whether this resignation was forced upon her, such as to permit a finding of constructive dismissal in accordance with the now well settled principles in this area of industrial jurisprudence. 41 Appropriately, both parties referred me to Allison v Bega Valley Council, a 1995 Full Bench decision in which the principles of what constitues a constructive dismissal were extensively canvassed. At p72-73 the Full Bench said: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning. In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment. Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

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. 42 Since Allison a number of other Full Bench decisions have reaffirmed the general principal that a constructive dismissal is a termination of employment at the initiative of the employer or, in the present circumstances, put more precisely, a resignation which was forced upon the employee by the employer's actions or behavour. See Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, St Vincents Hospital Sydney Pty Ltd 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 and Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000. 43 In the particular context of this case I also refer to Bayley Trading Co and New South Wales Sales Representatives and Commercial Travellers Guild [1979] AR 392 where Macken J said 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.

44 I turn then to consider the actions and behaviour of both the employer and employee leading to the resignation of the applicant.

45 The following evidence is apposite to my conclusions on the employer's behaviour:

i) the applicant's workload was halved in December 1999 in response to the employer's concern with her performance and the reasons for it;

ii) the employer provided paid time off in excess of entitlements to allow the applicant time to attend to the personal crises she was experiencing. It was not contested that some seven weeks' paid time off was provided during fifteen months of employment.

iv) the meeting of 4 May was an attempt to highlight some of the employer's concerns and provide a month to improve before any further action was taken.

v) the evidence of both Mr Hamilton and Ms Cinis was that they both liked the applicant and were shocked and disappointed by her resignation.

vi) the emotional evidence of Ms Cinis who was most distressed to see someone who she regarded as a friend, merely refer to her coldly as " the VP ". 46 Viewed collectively, this evidence was hardly the actions or behaviour of a cruel, uncaring employer who was wilfully and secretly plotting the employee's demise. 47 To seriously claim that there was a plot to dismiss the applicant flies in the face of all the evidence - most of it incontrovertible - and was, in my opinion, nothing short of an illogical fantasy. 48 The Commission can find no evidence of any action, initiative or behaviour of the employer which would give rise to any grievance by the applicant; let alone serve as a trigger for her resignation. On the contrary, this wealth of evidence demonstrates that the employer displayed considerable tolerance and compassion for the applicant in the distressing period following the passing of her mother and her friend. 49 In short, the employer was more than generous in its dealings with her and its conduct was functus officio.

50 The Commission empathises with the personal tragedies experienced by the applicant in mid 1999. It is perfectly understandable that her performance would have been adversely affected. However, viewed in the light of the employer's compassionate response, and her curious and unsubstantiated allegations, it was only a matter of time before the employer could no longer accommodate her poor performance and failure to accept lawful instructions. 51 Even if the Commission accepts that the applicant had legitimate grounds for her behaviour, it cannot possibly follow that the employer should be held accountable when she took matters into her own hands, by submitting her resignation.

52 In my view, her resignation was openly and freely given. While maintaining an unsubstantiated theory of a plot against her, the evidence adduced during this case, completely rules out such a theory. Her view was misplaced and misconceived. 53 Additionally, the Commission finds aspects of the applicant's behaviour to be particularly troubling. For example:

1. It seems plain to me that the applicant had difficulty comprehending and accepting her obligations as an employee. She interpreted her role as she saw it and wanted a free rein to perform her duties how, and when, she chose. Clearly, she was unwilling to accept direction from her employer.

2. The applicant contended that, as she was responsible to the whole Committee; it was the whole Committee who was to direct her duties -not the President or Vice President alone, or in concert.

All Committees of Management delegate the day to day management and supervisory functions to particular individuals - in this case, there is no room to doubt the President and the Vice President were so delegated. The applicant's view is completely illogical, impractical and unworkable. I believe this was a "red herring" designed to bolster her argument that there were confusing and contradictory instructions. I note, however, in oral evidence the applicant eventually accepted the line of authority from the Committee to the President and the Vice President.

3. The applicant overheard two conversations which she said convinced her that a plot was unfolding to get rid of her. The applicant did not hear the complete conversations which, as it turned out, were perfectly innocent. It seems odd that she never queried these conversations if she feared they proved a plot against her. In my opinion, the applicant heard what she wanted to hear and blocked out the reality of what was said. She jumped to ridiculous conclusions with only half the story, or preferred to ignore what was told to her in her own interests. For example, the President confirmed that he told her, in the 4 May meeting, to ignore the Vice President and talk to him about her problems. The President's concern is inconsistent with a claim of a plot to get rid of her. Similarly, it is inconsistent with her later resignation. I am also satisfied that the applicant chose to ignore the offer of one month to improve her performance. I accept such an offer was given, confirmed in writing, and probably received by her on the following Monday. It was not, and could not, be construed as notice that her employment was to be terminated.

4. I doubt the applicant's claim that the reason she didn't hand her resignation to the President was because he was unapproachable and she panicked. I believe she slipped it under the door to avoid discussing it with the President as was her duty and obligation. She failed to give any notice which she was obliged to do.

It seems to me Mr Hamilton was anything but unapproachable. His demeanour in the witness box, his sympathetic response for compassionate leave, his friendliness and genuine regard for the applicant, makes a nonsense of a claim that he was unapproachable. I believe the applicant had embarked on a course which she was irrevocably committed to, and from which she would not be deflected - namely, resignation.

5. The uncontested evidence was that after the 4 May meeting, the applicant chatted to Mr Hamilton and Ms Cinis over lunch in the usual way and then went off to her TAFE course. It seems peculiar that she would do so if she was so distressed by the earlier meeting; so distressed, in fact, that she was ill the next day. 6) The applicant's behaviour, post the resignation was most strange. She said in the letter of resignation and, in a subsequent letter to all the tenant groups, that she would explain her resignation later. She never did so, or make any other contact with the employer.

It is bizarre that she would write to the tenant groups, asking them to contact her. None did - rather some found it odd that they were being asked to get involved in the employment relationship. If the purpose of writing to the groups was to garner support in her dispute with Management, it was a miserable failure.

7. One of the applicant's grievances was that, on a number of occasions, Ms Cinis screamed at her in the presence of others (paras 40, 42 and 52 of Ex'1'). On one occasion, she said the screaming was in front of local Government and Departmental Officers and the Police. To the contrary, Ms Cinis denied screaming at her. Ms Stroud, who was present on the two occasions cited by the applicant, gave evidence that there was no such screaming. I do not accept the applicant's evidence in this regard. Pointedly, not one person was produced to corroborate the applicant's allegations. 54 Finally, I believe the applicant had resolved to resign because she felt aggrieved and unhappy in her job. However, these feelings may merely indicate she was unsuitable for this type of work, at this stage of her life, and career. Non constat, that the employer should be confronted with an allegation of unfair dismissal where an employee is unhappy in their work. 55 Many employees, for a variety of reasons, and at various times in their careers, become unhappy or disillusioned with their jobs. This does not give any warrant for a claim of unfair dismissal; particularly when they exercise a right to resign. 56 Mr Boghossian's case was focused on a claim that the applicant was using her initiative by performing her duties in accordance with the terms of the job description. I cannot agree. I ask rhetorically, why shouldn't the employer expect an employee to work according to a job description? How could this be described as using initiative? There is no doubt that an employee performing one's duties, as directed, can display initiative. However, simply performing to the requirements of a job description is doing no more than what is ordinarily and reasonably expected in any employment relationship. 57 It was a matter of some contest that the applicant's workload was halved in December 1999. In my opinion, it was a compassionate measure designed to assist the applicant improve her performance. Mr Boghossian criticised this decision on the grounds the applicant didn't get a new job description. It is a perverse sense of logic that one would criticise an employer for easing the workload of an employee as a sign of it's compassion and understanding of the personal trauma she was experiencing. I reject this criticism. I would also observe that the applicant was under no illusion of what her duties were after December 1999. She chose, however, to ignore instruction and perform duties as, and when, she decided it was appropriate.

58 In my opinion, the respondent's witnesses gave truthful and credible evidence. Mr Hamilton was confident ; his evidence was given honestly and forthrightly. I could not detect a skerrick of malice towards the applicant. He made no attempt to colour his evidence in order to give an unfavourable impression of the applicant. This is consistent with his view that he liked the applicant as a person, and was shocked and disappointed by her resignation. 59 Mr Hamilton scoffed at suggestions that there were problems between himself and Ms Cinis. He accepted she would make one off remarks - perhaps even slightly critical - but he brushed them off as matters that did not trouble him in the slightest. 60 Mr Hamilton had perfectly sensible and innocent explanations for the two conversations which the applicant completely misconstrued, as she only partly heard the conversations. Ms Cinis corroborated what was meant by "Robyn will have to go", meaning to her TAFE course, rather than dropping Mr Hamilton home. 61 Thus, the Commission finds Mr Boghossian's attempts to impugn Mr Hamilton's evidence were singularly unsuccessful. 62 The Commission found Ms Cinis to be a caring and decent employer. Sure, she could be blunt and straightforward. However, in dealing with numerous local and Government authorities, agencies and stroppy voluntary committees, involving difficult and stressful situations, who wouldn't be? I accept her evidence that she harboured no ill will towards the applicant. She regarded her as a friend who had now sadly, betrayed her. 63 She was deeply distressed in the witness box at recalling the applicant's statements, referring to her coldly as the "VP", without a name. This demeanour reveals to me that the theory of a plot to remove the applicant is utterly implausible. 64 I am convinced of Ms Cinis' credit by her corroboration of detailed evidence attested to by Mr Hamilton. She is an elderly volunteer, with very poor eyesight, verging on blindness. It is incomprehensible that she would have conspired to corroborate Mr Hamilton's evidence with such accuracy. To me, her evidence rings true. Similarly, I very much doubt that she had been coached to answer precisely as Mr Hamilton saw it.

65 It would be remiss of the Commission not to express some concern with the manner in which Mr Boghossian conducted the applicant's case. I do not, for one moment, doubt his sincerity or enthusiasm; nor do I intend my comments to be anything but constructive criticism of an inexperienced advocate. 66 The Commission felt bound to intervene many times during the proceedings, where plainly Mr Boghossian's approach to proper procedure left much to be desired.

This was particularly so during cross examination of the respondent's witnesses, which was littered with irrelevant and repetitive questioning. He made silly "off the cuff" comments and statements during cross examination which were inappropriate and unnecessary.

The leading of his own witness was staggering. He blissfully and repeatedly asked the applicant to give her opinion on a range of unrelated and irrelevant matters. 67 The proceedings could have been significantly shortened had proper form and procedure been followed with a focus on the relevant issues. 68 Overall, Mr Boghossian's conduct severely tried the Commission's patience. I would add that gratuitous comments to the Commission do not impress me one iota. 69 However, I hasten to add, that this criticism should not be construed as having any bearing on the outcome of this case. My findings and conclusions have been determined on the relevant facts and circumstances weeded out from the irrelevancies.

CONCLUSION 70 His Honour, Hungerford J, in Day v Lumley Life, 90 IR 71, appropriately crystallised the essential features of the employment relationship. He said: The employment relationship, I have to say, is a serious relationship with important incidents for both parties to it. It is a consensual relationship based on contract and with respective rights and obligations. It should not, I think, operate, or to be so seen, in practice in a way which permits one party, here the employer, to act in a one-sided manner contrary to the legitimate expectations and understandings of the other party, here the employee, and particularly where such action damages or detrimentally affects the career interests of the employee. Employees have a corresponding duty to act with fidelity and good faith.

While his Honour, in Day , was there considering the unfairness of a contract, pursuant to s106 of the Act, his comments, in my view, are no less apposite to this case, brought pursuant to s84 of the Act. 71 To my mind, the employer here, more than met its obligations. It was the employee who had a misconceived, one sided view of the relationship. Moreover, she did not reciprocate, let alone display, good faith and fidelity which the employer had demonstrated to her. 72 In my view, it was inevitable that the employment relationship would end. However, the evidence is plain - it was not ended by any action or desire of the employer. Consequently, there was no constructive dismissal of the applicant and the application must fail.

There was no evidence of any action, initiative or behaviour by the employer such as to make it the effective initiator of the termination of employment.

The respondent had reasonable cause to question the applicant's performance.

The respondent displayed tolerance and compassion for the applicant's distressing personal circumstances.

There was no evidence of any plot to dismiss the applicant.

The applicant had no reasonable basis for assuming she was being forced to resign.

The applicant resigned freely and without any pressure from the employer.

The respondent was genuinely disappointed and shocked by the resignation.

The behaviour of the applicant was unreasonable and not in accordance with her obligations to the employment relationship.

There was no constructive dismissal of the applicant.

There is no jurisdiction for the Commission to hear and determine this application pursuant to Pt 6 ch 2 of the Act.

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.