Allison v Bega Valley Council 63 IR 68 - [2000] NSWIRComm 238 - NSWIRComm 1998 case summary — Zoe

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Allison v Bega Valley Council 63 IR 68

[2000] NSWIRComm 238

Industrial Relations Commission (NSW)|1998-05-28|Before: Sams DP, Peterson Schmidt JJ, Schmidt J, Walton VP, Mr J

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

1998-05-28

Before

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

Catchwords

08/16/2000
08/17/2000 DATE OF JUDGMENT: 11/24/2000

Source

Original judgment source is linked above.

Catchwords

08/16/200008/17/2000 DATE OF JUDGMENT: 11/24/2000

Judgment (71 paragraphs)

[1]

The applicant said that she was being asked to do too much. She felt frustrated and was given inconsistent directions. She would need a few days to think over her position. The President had said to ignore what the Vice President says and " talk to me about the problems ". The next day she was too upset to attend for work. 12 The meeting was followed up by a letter dated 5 May, which I reproduce in full (Ex'3'): Dear Robyn Further to our conversation of Thursday 4 May, 2000 also attended by Dennis Bird as a Member of our Management Committee. As discussed with you, the Management of this organization for sometime now have not been happy with your performance as Tenant Group Organizer. The areas of concern are as follows:- a) Vagueness b) Lack of initiative c) Failure to follow-up d) Reluctance to approach new groups These shortcomings have been also passed on to us by D.O.H. staff and members of some of our groups and you will understand that is(sic) situation cannot continue. We are therefore providing one month to improve your performance otherwise Management will be required to take further action. We hope that you will be able to pick up your game as we like you as a person but the needs of this organization take precedence over our personal feelings. Signed on behalf of W.S.R.P.T.C. Management Committee.

[2]

[13]

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.

[35]

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?

[36]

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.

[54]

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.

[55]

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.

Allison v Bega Valley Council 63 IR 68

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Judgment (71 paragraphs)

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