Allison v Bega Valley Council 63 IR 68

Allison v Bega Valley Council 63 IR 68 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union New South Wales Branch v Sydney Water Corporation [2005] NSW IR Comm 1120 Bankstown City Council v Paris (unreported) IRC 262 of 1999. Bates v Gundegai District Services Club IRC 4710 of 1999 Britten v Riverstone Public School IRC 5504 of 1999. Brown v Dunn (1894) 6R (HL) 67 Clark v Pittwater RSL Club Ltd (1998) 84 IR 369. Department of Water Resources v Australia Workers Union New South Wales Branch [1992] 43 IR 76. CASES CITED: Federated Engine Drivers & Fireman's Assoc. of Australasia (Coast District) v Broken Hill Pty Company Ltd 1950 AR 371. Hanslow v Nationwide News Pty Ltd t/as News Advantage Sydney IRC 4390 of 2002 (20 December 2002). Outboard World v Muir (1993) 51 IR 167. Police Service of New South Wales v Batton (2000) 98 IR 154. Sams v Contact Point International Pty Ltd (2001) NSW IR Comm 18. Seipal v John Fairfax Holdings Ltd (25 July 2002) IRC 3635 of 2001 Sparrow v Little t/as Milk Plus (1998) 78 IR 365 St Vincent's Hospital v Harris (1998) NSW IR Comm 235

Ms L Tucker, Solicitor Kingsford Legal Centre LEGAL REPRESENTATIVES: Mr J Kartsounis, Solicitor J Kartsounis & Company

DECISION: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Application by Sabita Ramnani re Unfair Dismissal pursuant to section 84 of the Industrial Relation Act 1996

1 This is an application by Sabita Ramnani against Specix Pty Ltd, for a remedy pursuant to S.84 of the Industrial Relations Act, 1996. Ms Ramnani alleged that she was constructively dismissed from her position of specification representative with the company on the 1 September 2004. She sought monetary compensation in lieu of reinstatement or re-employment.

2 The matter was listed for Conciliation and Directions before me on the 14 October 2004 at which time conciliation took place. The parties were directed to confer and the matter set down for further conciliation on the 1 November 2004. However this date was vacated at the request of the applicant who was seeking legal assistance. Further conciliation took place on the 19 November 2004. However as no settlement could be reached the matter was set down for hearing on the 24 June 2005. Directions were issued as to the filing and exchange of witness statements.

3 At the hearing Ms Tucker, Solicitor, appeared on behalf of Ms Ramnani, who also gave evidence and filed affidavits (Exhibits 1 & 2).

4 Mr Kartsounis, Solicitor, appeared on behalf of the respondent and called the following witnesses who had all filed affidavits.

Helen Awali - Director, Specix (Exhibit 5) Janelle Sultan - Relationship Manager, Specix (Exhibit 8) Sharif Hamawi - Office Administrator, Specix (Exhibit 9) Belinda Wu - Marketing Coordinator, Specix (Exhibit 10)

5 The evidence concluded on 24 June 2005 and Directions were issued as to the filing and exchange of written submissions as per an agreed timetable between the parties.

6 Those Directions were not able to be complied with by the respondent and ultimately written submissions were received from the parties as follows:

Applicant - 27 July 2005 Respondent - 7 October 2005 Applicant - 18 October 2005

7 The following is a brief background and chronology based on the evidence filed and the transcript.

8 Specix Pty Ltd is a small architectural public relations firm which promotes manufactured building products to designers, builders and architects.

9 The source of work for the company is from manufacturers who wish to market their products. This was achieved by presentations to groups of architects and builders, of projects responsible for the preparation of construction certificates for local council approval. Those certificates contain the exact specifications of the products and materials to be used in the building of the project. Through the presentations they would be made aware of the products on offer when preparing their construction certificate specifications.

10 Clients of Specix paid a monthly fee for the company to promote their products. The success of the business was dependent on the number and quality of presentations made on behalf of clients. The effectiveness of the efforts of Specix were subject of regular monthly reports to clients.

11 Helen Awali is the Director and founder of Specix. She holds architectural qualifications.

12 The company commenced operations in early 2004 with Ms Awali doing presentations on her own. Ms Ramnani was engaged to assist in the conduct of presentations and preparation of reports and commenced on 19 April 2004.

13 On commencement Ms Ramnani was paid $38,000 per annum and was responsible for the Gunnersen Inspirations Account.

14 In July 2004 Ms Ramnani was also given responsibility for the Trade Kitchens account. Her salary was increased by $5,000 to $43,000 per annum.

15 As a result of issues concerning presentations made by Ms Ramnani that were raised with Ms Awali by a senior representative of Gunnersen, Ms Awali had a meeting with Ms Ramnani on 1 September.

16 Ms Awali had determined to remove Ms Ramnani from the Gunnersen Account but leave her on the Trade Kitchens Account.

18 Ms Awali maintained that Ms Ramnani essentially refused to accept the position and resigned and walked out of her office and also announced her intention of resigning to the staff present.

19 Ms Ramnani maintained that it had not been her intention to resign, that she was upset and that it was Ms Awali who asked for her resignation in writing.

20 A subsequent phone call between the parties on 8 September 2004 did not resolve the issue.

21 Ms Ramnani sought monetary compensation in lieu of reinstatement or re-employment.

22 There were various issues and incidents raised by both the applicant and the respondent in their written and oral evidence which I do not consider to be particularly relevant or of sufficient weight to warrant any specific reference.

23 Nevertheless all evidence has been carefully considered and only those issues and events I consider of any relevance to the central issue of whether Ms Ramnani was terminated, resigned or was constructively dismissed and if any such termination/constructive dismissal was so harsh or unfair or unreasonable (or any combination thereof) so as to warrant the intervention of the Commission.

24 The main disputed issues between the parties were as follows:

s Whether Ms Ramnani misled Ms Awali in her Curriculum Vitae in not making clear that she had not in fact completed her qualifications. s Whether Ms Ramnani initiated the request to be given the Trade Kitchens Account and also asked for a $5,000 wage increase. s Whether Ms Ramnani's workload was excessive. s Whether during the meeting between Ms Ramnani and Ms Awali on 1 September negative performance issues were raised by Ms Awali. s Whether Ms Awali told Ms Ramnani that she was being taken off the Gunnersen Account with another employee being taken on, but she would retain the Trade Kitchens Account with a consequential $5,000 reduction in salary. That if she didn't accept that position she could resign, and give her resignation in writing. s Whether Ms Ramnani refused to accept removal of the Gunnersen account, became emotional and essentially walked out, told staff she was resigning, deleted emails, packed her personal belongings and left the premises.

25 Ms Ramnani maintained that at the initial interview she had told Ms Awali that she had not completed her interior design studies and would be attending TAFE on Wednesday nights.

26 She was also aware of the requirement of having a motor vehicle (mentioned in the position advertisement). She initially borrowed cars belonging to family members and later purchased a car in mid June.

27 Ms Awali in contrast maintained that she was never told about the ongoing studies and that Ms Ramnani's CV was expressed in such a way that it put forward that the Diploma had been completed.

28 In addition the lack of a personal motor vehicle, (which was not communicated to her), created logistical problems as there were occasions when Ms Ramnani had to be provided with a taxi to get to presentations.

29 Ms Ramnani during the course of her employment experienced difficulties with what she regarded as an excessive workload. In addition to what was involved in arranging and giving presentations she had materials, equipment and catering supplies that had to be conveyed by her to the presentations.

30 Ms Ramnani also had to organise to go out and get the clients. Whilst Ms Sultan assisted with logistical and administrative support she did not assist in the actual presentations.

31 However it was Ms Sultan's evidence that she did initially accompany Ms Ramnani on presentations and gave assistance.

32 Ms Ramnani was doing 5 presentations a month which she considered was in accordance with her job requirements. She did not agree with Ms Awali's contention that what was required was 5 presentations "per client" per month.

33 Ms Awali in contrast indicated that she herself did 10 - 12 presentations per month which included 8 presentations interstate.

34 This was supported by Ms Sultan who also indicated the requirement and expectation was for 5 presentations per client per month. She assisted Ms Ramnani with the preparation for the presentations.

35 Presentations would be scheduled at an Architects/Developers' office and would be held in some instances consecutively and be of 15 - 20 minutes duration and 10 minutes apart. Ms Sultan would schedule the presentations as per the requests of Ms Ramnani.

36 On 14 July 2004 there was a discussion between Ms Ramnani and Ms Awali about a new account - the Trade Kitchens' account.

37 According to Ms Ramnani it was Ms Awali who approached her following their visit to Trade Kitchens and asked her if she wanted to take on the additional account. It was explained that because there was a "cross-over" in the nature of the Trade Kitchen products with the Gunnersen's range this would essentially mitigate the extra workload. Ms Awali also offered her an extra $5,000 to take on the extra account.

38 However Ms Awali deposed that this was not what happened saying that it was Ms Ramnani who asked her if she could take on the Trade Kitchens account. Whilst Ms Awali said she was "impressed by her enthusiasm" essentially she was concerned as to whether she could handle the extra workload and said as much.

39 Ms Sultan also maintained that Ms Ramnani had told her that she had asked for the Trade Kitchens account.

40 Ms Awali also maintained that it was Ms Ramnani who asked for an extra $5,000 if she took on the Trade Kitchens account. She was not happy with her current salary given the Gunnersen's workload. This was considered by Ms Awali and agreed to.

41 Ms Awali also said she told Ms Ramnani that because the two companies were competitors, she couldn't present their products to the same designers.

42 Ms Ramnani denied that she was told anything of the kind by Ms Awali during the discussion, and that in fact it was she who alerted Ms Awali to the fact that Gunnersen and Trade Kitchens were competitors, and that Gunnersen should be told she was being given both accounts. Ms Awali responded by telling her it was "none of Gunnersen's business, it was Specix's"

43 Ms Awali sent an email to Ms Ramnani (dated 2 July) which confirmed she now had the two accounts, the $5000 salary increase as from 15 July but which also stated that she was not to mention to Gunnersen or any other client that she now had two accounts.

44 She was also told by Ms Awali that she was not to disclose her salary to Janelle Sultan and that this was private and confidential.

45 Once Ms Ramnani had the two accounts there were occasions when she booked presentations for both Gunnersen and Trade Kitchens in consecutive time slots, albeit 10 minutes apart.

46 This was apparent during cross-examination where she was taken to the monthly reports for August for both Trade Kitchens (Exhibit 3) and Gunnersen Inspirations (Exhibit 4) and comparison of specific dates which showed the two presentations following each other. Examples detailed were 11 August - BKA Associates and 12 August - John Associates.

47 Ms Ramnani conceded that whilst representatives from both accounts would not have been present during each others presentation, Gunnersen's representatives on the two dates referred to could either have still been present just prior to the Trade Kitchens account presentation on 12 August (Gunnersen - 1.10pm, Trade Kitchens 1.40pm) or just after on 11 August (Trade Kitchens - 10.20am, Gunnersen -10.55am)

48 Ms Awali said she was not aware that this was happening and would have stopped the practice had she known of it.

49 The first time she became aware of the situation was at a Multiplex presentation on 12 August. It was a mini Trade Show and when she became aware that Ms Ramnani had both accounts materials displayed she told her to put away the Trade Kitchens material.

50 Ms Ramnani maintained that the mini Trade Show was organised by Ms Awali and that 5 Specix accounts were on display.

51 Ms Ramnani also maintained that Specix would have been well aware of how she was scheduling her presentations, as Ms Sultan was the one who made all the arrangements after she confirmed her dates with her.

52 Ms Sultan agreed that she was the one who did the bookings for the presentations after Ms Ramnani told her she needed to see these people. To assist her, Ms Sultan would book twice in one day to save her going back on another occasion.

53 No-one raised with Ms Sultan that booking both accounts on the same day to the same group of people and within a short period of time was a problem. Ms Sultan considered that the two accounts were not directly the same as she had dealt with them.

54 Ms Sultan also said that architects were busy people and more than happy to see as many products as they would on one occasion.

55 Whilst there was a diary in the office in which each person wrote appointments, Ms Sultan could not recall how much detail was shown in such entries.

56 Ms Ramnani conceded that there were a couple of occasions when she was late to work but maintained she always worked back beyond 5.30pm most days.

57 She was also late in finalizing the required monthly reports in August due to her workload and went into work on a Saturday, at Ms Awali's suggestion, to complete the reports. Ms Awali was also present.

58 Ms Awali said she was concerned about Ms Ramnani's lateness and working outside normal office hours. She considered this counter productive and it also affected staff morale. She sent her an email warning her about lateness in early August.

59 Ms Awali was also concerned that Ms Ramnani was having difficulty with the workload and prioritising tasks. Ms Awali said she had to assist her with the August reports which were two days late.

60 Ms Ramnani generally considered that she worked very hard but that the workload was becoming difficult. This was exacerbated in late August (26) when Ms Awali requested that she do 5 presentations over the following week (compared to the 5 per month she normally did) for the new Nevamar range for Gunnersen.

61 Ms Awali said this was not her requirement but that it was requested by Gunnersen at a meeting at which Ms Ramnani was present. The presentations were to take place within a two week time frame including the preparation time.

62 There were monthly meetings with senior sales representatives from Gunnersen. At these meetings, Ms Awali said they raised issues with Ms Ramnani about being more aggressive in promoting their products. This was conceded by Ms Ramnani.

63 Ms Ramnani considered that apart from the issue of being more aggressive she was working hard on the Gunnersen's range and there were no other issues raised with her performance.

64 However she was finding it difficult to cope with the workload of the two accounts together with the additional workload required for the Nevamar presentations.

65 Ms Awali deposed that on 29 July she asked Ms Ramnani to come and have coffee with her away from the work place so that she could discuss issues of lateness and personal phone calls. Ms Ramnani raised issues in her personal life causing her stress and anxiety. Ms Awali maintained she gave a verbal warning to Ms Ramnani to "change her attitude and refocus her priorities"

66 That this informal meeting took place was not denied by Ms Ramnani - it was not referred to at all in her evidence or cross-examination.

67 On 31 August, after she had had to carry out 3 presentations in the one day, she asked Ms Awali if they could discuss her workload. A meeting was scheduled between them on Friday 3 September for this purpose.

68 Ms Awali deposed in relation to Ms Ramnani's request, that it was now clear to her that she was having difficulties with her workload and Ms Awali decided to take one of the accounts away from Ms Ramnani.

69 On 31 August Ms Ramnani was conducting a Gunnersen presentation for a number of Architects. Mr David Fletcher, the Gunnersen National Specification Manager, was present.

70 It was Ms Ramnani's evidence that after the presentation one of the architects approached saying he was mainly involved with polyurethane kitchens and was after a more suitable product than the Gunnersen product and Ms Ramnani suggested a Trade Kitchens product.

71 On 1 September Ms Awali was telephoned by Mr D'Souza, the Gunnersen State Sales Manager, in relation to the presentation the previous day.

72 Ms Awali was advised that Ms Ramnani had suggested to the buyer in the presence of the Gunnersen's Specification Manager that a competitor's product be purchased in preference to the Gunnensen product.

73 Mr D'Souza went on to say that the company had lost confidence in Ms Ramnani's ability to promote their product and would be reviewing their association with Specix. Ms Awali apologised and said she would take steps to ensure it would not happen again.

74 Specix was a major client and responsible for 45% of the business's income. The project concerned in the presentation was not a small one. It involved 101 home units..

75 Whilst Mr D'Souza did not put to Ms Awali in implied terms that he wanted Ms Ramnani off their account, he was clearly upset and conveyed that message to her.

76 Ms Awali considered that Ms Ramnani should not have suggested the Trade Kitchens product in front of the Gunnersen's representative but could have arranged to talk to the particular architect later. Her prime responsibility was to Gunnersen, not the architect.

77 Ms Ramnani said she was just trying to assist the architect and agreed that in hindsight she could have handled the matter more appropriately.

78 Ms Awali subsequently was sent an email by Mr D 'Souza confirming the incident, its unacceptability and requesting Ms Awali take action accordingly.

79 However as conceded in cross-communication the email was sent on 29 October following Ms Ramnani filing her application and the first listing of this matter. Ms Awali said she sought written confirmation of Mr D'Souza of his telephone communication with her on 1 September.

80 As the telephone call she received from Mr D'Souza on 1 September occurred whilst she was in the middle of a presentation with Ms Ramnani and Ms Wu she told her that they were going to have to have a talk when they got back to the office.

81 Ms Awali had decided to advise her that she was re-allocating the Gunnersen account to both alleviate her workload and address the loss of confidence by the client.

82 Ms Ramnani said she was called to a meeting with Ms Awali on 1 September and only given two hours notice of the meeting and had to do a presentation in the meantime.

83 Ms Ramnani said that the meeting took place in the boardroom but because of incomplete construction work there were no glass panels in place only the framework. Other staff in the outer office were about 5 metres away and would have overheard the conversation.

84 She was told that Mr Fletcher from Gunnersen had overheard her recommending a Trade Kitchen product and complained about it.

85 Ms Ramnani deposed that she was shown 2 sheets of paper to read. Ms Awali refused to give her copies of the papers.

86 Various comments about her were included such as:

s She was continually late, even after being issued with a written warning. s She had a haircut on a day she was sick. s She lacked confidence and this hindered her ability to do the job. s She couldn't multi-task. s She bought coffee in the morning. s She was dishonest (no explanation was given of this).

87 Whilst Ms Ramnani said she agreed with some points she also believed some of the issues were unfair and untrue.

88 Ms Awali denied she showed Ms Ramnani any such paper or raised any of these issues.

89 Ms Ramnani was told about the complaint by Gunnersen but said she wasn't given any opportunity to explain the circumstances.

90 Ms Ramnani asked if she could redeem the situation with Gunnersen but was told someone else had been employed to take on the Gunnersen account and that she would keep the Trade Kitchen account and go back to her original salary. This was put on a "take it or leave it" basis. Ms Ramnani told Ms Awali that both those options were unacceptable.

91 There was some to-ing and fro-ing between them and Ms Awali re-iterated the Trade Kitchens offer and asked what she was going to do.

92 Ms Ramnani deposed that at this point she was "furious" and said words to the effect of "I could not remain for another minute". She said that "in the heat of the moment" she went back to her desk, packed her belongings and decided to delete her personal emails.

93 She asked Sharif Hamawi to help her carry Specix property out of her car to her office. On her return Ms Awali asked for her mobile phone and a written resignation.

94 Ms Awali maintained that Ms Ramnani didn't seem to appreciate that she had placed the Gunnersen's account in jeopardy or that she had done anything wrong.

95 She told her she was giving the Gunnersen account to another staff member so she could concentrate on the Trade Kitchens account. This was to ensure Specix did not lose the Gunnersen account.

96 However this was rejected by Ms Ramnani who said she had worked too hard and if she couldn't have both accounts she didn't feel she could work there and keep her head high in front of other employees. In order to keep her dignity she had to leave the firm.

97 Ms Awali also maintained that nothing was said or proposed about a reduction in Ms Ramnani's salary.

98 Ms Ramnani then walked out and announced her resignation to the staff and turned and told her she would email her resignation later.

99 Ms Awali did not receive any written resignation and did not hear from her until the 8 October when she rang to apologize and wanted to discuss her conditions.

100 Ms Awali told her she had already resigned, someone else had been brought in two weeks early but that she could still have the Trade Kitchens account if she wanted it.

101 A meeting was attempted to be arranged but Ms Awali was going to be interstate and Ms Ramnani then said she was considering unfair dismissal action.

102 Ms Ramnani said that after she left Specix on 1 September she contacted her employment officer who advised her to take a couple of day's sick leave and contact Ms Awali when she felt fit.

103 When she did contact Ms Awali on the 8 October she said she couldn't meet her due to the increased workload she had left them. The Trade Kitchens offer (with pay reduction) was reiterated.

104 It was Ms Awali's contention that she never wanted Ms Ramnani to leave. It would have been at a difficult time with the Nevamar presentations due to be given the following week. She had had to do that work herself.

105 Ms Awali said that a position for another new account - the Svenska account (a textile fabric company) had recently been advertised, interviews undertaken and the position filled. One of the persons interviewed but unsuccessful was still looking for work and was contacted by Ms Awali to take on the Gunnersen account after Ms Ramnani's departure.

106 The staff present in the outer office on the 1 September all gave evidence - Janelle Sultan, Sharif Hamawi and Belinda Wu.

107 None of the witnesses could hear what was being said between Ms Ramnani and Ms Awali in Ms Awali's office. All essentially confirmed in evidence that voices were heard but details of the conversation could not be heard.

108 Whilst there was some slight divergence in exactly what was said and the order of events, all confirmed that Ms Ramnani went to her desk, could be clearly seen deleting emails and packed her personal belongings.

109 Ms Ramnani then appears to have turned and said she would send her resignation by email, directing what was said to Ms Awali. Comments were also made by her about how it was nice working with them and wishing them luck and she then left. Mr Hamawi went with her to the car.

110 Ms Sultan said she had her back to Ms Ramnani when she came out of the Boardroom and couldn't remember how she looked (i.e. upset etc)

111 There was a divergence between what was contained in the witness statements of these three witnesses (Exhibits 8, 9 and 10) and statutory declarations (undated) sworn in 2004 and tendered during conciliation proceedings on 1 November 2004. (Exhibits 11, 13 and 12)

112 Cross examination about those statutory declarations and a comparison with the witness statements essentially focused on the fact that the earlier documents were more detailed. They all had Ms Ramnani announcing in some form that she resigned voluntarily.

113 Ms Sultan said she packed her belonging and then deleted emails. Ms Wu only referred to packing her belongings. Mr Hamawi said she deleted emails then packed her belongings.

114 The three witnesses generally maintained that these declarations were done when events were fresher in their memory. It was apparent that they had not been looked at again prior to preparation of the witness statements in April this year.

115 What was clear from all these witnesses was that they did not hear the exchange between Ms Ramnani and Ms Awali in the boardroom and who said what and to whom.

116 Ms Ramnani maintained Ms Awali asked her to put her resignation in writing.

117 Ms Awali said she could not recall doing that only that she asked for the phone to be returned as it was a company phone.

118 Only Ms Sultan made any mention of Ms Awali asking her to hand in her resignation letter with Ms Ramnani responding that she would do that by email. (Exhibit 11). Ms Sultan's witness statement (Exhibit 11) only referred to Ms Ramnani saying she would email her resignation.

119 Since her employment with Specix ceased on 1 September 2004, Ms Ramnani had completed her TAFE course between September 2004 and December 2004, at night.

120 She undertook additional skills training in January. She applied for various small jobs but was unsuccessful.

121 On 15 April she took up employment in a Sales Support role with a company where she is earning $35,000 per annum during her trial period with an increase to $40,000 on successful completion of that period on 14 July 2005.

122 Ms Tucker for the applicant submitted that the central issue for determination was whether the decision by Ms Awali to downgrade Ms Ramnani's duties and salary was variation of her contract such that it constituted a repudiation of the contract of employment per Clark v Pittwater RSL Club Ltd (1998) 84 IR 3D9 and British Aircraft Corp Ltd v Austin (1978) IRLR 332.

123 Repudiation of the contract of employment is noted in the NSW Industrial Law Service (Butterworths, at [83.50.40]) as follows: "To constitute a breach of this implied term [that an employer will not, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee] it is not necessary to show that an employer intended any repudiation of the contract. Instead, the commission will look at the employer's conduct as a whole and determine whether it is such that its effect, judged reasonable and sensibly, is such that the employee cannot be expected to 'put up with it'."

124 In addressing this issue it was submitted there were five relevant considerations. 125 1) The role for which Ms Ramnani was engaged. When Ms Ramnani was employed her role was to promote the Gunnersen range of products and this was her focus of work as confirmed in evidence of both applicant and respondent.

126 Ms Ramnani dedicated four and half months to developing sales contacts for this major client and income earner for Specix. This indicated the significance of her removal from the account.

127 Apart from a request that she be more aggressive in her sales no other problems were raised in her handling of this account prior to the 31 August.

128 Her removal from the account constituted a significant diminution of her duties and was a fundamental variation in her terms of employment.

129 2) The significance of the variation of the contract. The variation proposed was a significant one for Ms Ramnani. She was confronted with Gunnersen concerns followed by a list of other performance issues. She was told she would no longer be working on the Gunnersen account, only the Trade Kitchens account with a reduction in salary or she could resign. It was a "take it or leave it" option.

130 Such a variation in her contract of employment presented in that manner constituted either a dismissal or, alternatively Ms Ramnani's departure from Specix could be "construed" as a constructive dismissal as she was given no option but to leave.

131 3) The justification for the variation of the contract. The alleged justification for the decision of Ms Awali to vary the terms of Ms Ramnani's employment was purported to be due to the complaint from Gunnersen about the presentation on 31 August and the promotion of a Trade Kitchens product to an architect. However whilst Ms Awali alleged Gunnersen made it clear they expected Ms Ramnani to be removed from the account there was no evidence to support this or to indicate what "action accordingly" meant in the email from Mr D'Souza sent more than a month after the relevant dates and after conciliation had commenced.

132 The conflicting evidence about who initiated the handling of both accounts was not relevant, as Ms Awali was responsible for allocating the Trade Kitchens account and for addressing any potential conflict. This is evidenced by the email of 2 July from Ms Awali. That email only referred to a concern that clients didn't find out Ms Ramnani was handling both accounts. It would have taken little effort for Ms Awali to make clear what was expected.

133 Further it was submitted that the suggestion that the two account ranges were complimentary suggested Ms Ramnani's actions of 31 August in proposing a Trade Kitchens product when it had been established that there was no suitable Gunnersen product for the client.

134 Whilst Ms Ramnani had acknowledged that in hindsight there were better ways she could have handled the situation, the respondent had not shown that its actions in removing her from the Gunnersen account were either required by them or justifiable.

135 In relation to being on notice of the need to keep the two accounts entirely separate as asserted by Ms Awali, this arose from concerns she asserted had been raised at a mini Trade Show. The reasons were advanced of not confusing architects with both ranges shown on the same day and the likelihood of Gunnersen becoming aware she was handling both accounts.

136 The first reason was in conflict with the evidence of Janelle Sultan who said architects would prefer the convenience of seeing various ranges on one day. In addition Ms Sultan was fully aware of the nature of the two accounts and did not consider there was conflict and regularly booked presentations for both on the same day.

137 As to the second reason, it was for Ms Awali to ensure clients were aware of how Specix was dealing with the two accounts and deal with any conflict, not to place Ms Ramnani in an untenable situation.

138 It was submitted that the requirement that Ms Ramnani be secretive about her work, yet be able to go behind Gunnersen to the architects later and recommend a Trade Kitchens product, suggested a level of duplicity was required of her. Whether or not this had been satisfactorily communicated to her, her failure to comply meant she was made to suffer the consequences in relation to her contract of employment.

139 4) The events of 1 September at the Specix offices. Ms Ramnani was emphatic in her evidence that she did not resign or announce her resignation or say she would email her resignation. It was Ms Awali who asked for her written resignation after she came out of the boardroom.

140 Whilst her evidence was that she deleted personal emails and left the building that day this was in the context of being in a state of distress, having been pushed to accept demotion or resign.

141 The conflict in evidence between Ms Ramnani and Ms Awali and the importance of their exchange in determining whether Ms Ramnani was dismissed, forced to resign or voluntarily resigned required the evidence of the parties to be scrutinized.

142 Ms Ramnani's evidence had remained consistent whereas the evidence of the respondent contained many contradictions. It was also pointed out that Janelle Sultan was Ms Awali's sister and Sharif Hamawi her brother.

143 Whilst Ms Awali denied she asked Ms Ramnani to hand in her resignation, this was contradicted in evidence by Ms Sultan. The Statutory Declarations (Exhibits 11, 12, 13) and Ms Awali's evidence had Ms Ramnani coming out of the meeting announcing her resignation and then packing to leave. However the affidavits of the respondent's staff members had Ms Ramnani leaving the meeting, packing her things and then announcing her resignation.

144 It was submitted that the parallels in the respondents' evidence not only diminished its weight but also raised the suspicion of collusion to shore up the respondent's evidence. The coincidence of the evidence in the three statutory declarations and three subsequent affidavits was unlikely.

145 Given these concerns it was submitted that the evidence of the applicant was to be preferred.

146 Further, Ms Ramnani's account of what occurred on 1 September was confirmed by the letter of Ms Bunt as annexed to Exhibit 1.

147 5) Action of the parties post 1 September. It was not contested that neither side made any attempt to contact the other. At no stage did Ms Awali seek to contact Ms Ramnani and whilst Ms Ramnani did seek a meeting a week later this did not occur.

148 It was Ms Awali's evidence that she wanted to create a role for a new employee, Kate Bonselaar, who was subsequently given the Gunnersen Account. This further suggested that Ms Awali had intended that Ms Ramnani leave Specix.

149 It was further submitted efforts to discredit Ms Ramnani that only served to indicate the respondent had sought to justify its actions after the event. The alligations concerning the applicant's assertions at her job interview were unsustainable and suggested a willingness on the part of the respondent to manufacture evidence in support of its case.

150 The contradictions in the evidence of the respondents' witnesses indicated that the respondents' account should be viewed with caution.

151 The applicant suffered considerable financial loss and a blow to her confidence due to the respondents' actions. Despite her efforts new employment was not secured for seven months.

152 Ms Ramnani was dedicated to her job. The actions of the respondent caused the situation Ms Ramnani found herself in on 31 August and she was not given any opportunity to explain what happened.

153 The action of the respondent led to the forced departure of the applicant and therefore her application for relief ought to be allowed.

154 Mr Kartsounis for the respondent submitted that notwithstanding that the applicant in submissions claimed dismissal or alternatively constructive dismissal, it was clear from the Form 7A application and the balance of the applicant's submissions that she sought that the Commission make a finding that there had been a constructive dismissal.

155 However a finding of constructive dismissal was not open to the Commission on the evidence. The correct test to apply in that regard was set out in Allison v Bega Valley Council (1995) 63IR68 at pps 72 - 73. This test was adopted by the Full Bench in Police Service of New South Wales v Batton [2000] NSWIR79 (23 May 2000) and in St Vincent's Hospital Sydney Limited v Barbara Isabella Harris [1998] NSWIRComm 235 (28 May 1998).

156 Mr Kartsounis responded to the reliance placed by the applicant on the extract from Butterworths NSW Industrial Law Service and in particular the reference to it not being necessary to show an intention to repudiate the contract. It was submitted that the proper statement of the law was to be found in Allison in the last paragraph on page 73, that is, that the ostensible resignation is consistent with the desire of the employer that such resignation be forthcoming.

157 If the Commission found that a dismissal rather than a resignation had taken place it would be necessary to find such dismissal was harsh, unjust or unreasonable per s.84. No submissions were made by the applicant on this issue. Neither reinstatement nor re-employment was sought by the applicant.

158 The five issues addressed by the applicant were responded to as follows:

159 Purpose for which Ms Ramnani was employed: The assertion that the applicant was employed to promote the Gunnersen account and that this client was hers as she had introduced it to the firm was conceded by her to be incorrect on further questioning from the Commission.

160 It was clear from the evidence that the applicant having worked on the account for 4 months had formed the view that there was a degree of prestige flowing from conducting the account. It was submitted that this was an attempt by the applicant to hold up the importance of conducting this account as the basis for the submission that removal from the account constituted a "fundamental variation in her employment contract" and also a "significant diminution of her duties".

161 The employment agreement covering the applicant was relied on (as attached to Ms Awali's affidavit). Although initially given that account, the position description was of "Specification Sales/Marketing Co-ordinator". The "job requirements" stated, " the role is not limited to the number of specification clients that the co-ordinator is managing". No reference was made to handling one specific account only.

162 It was conceded by the respondent that the evidence showed the applicant demonstrated a great deal of pride in conducting the account but this gave her a degree of self-importance beyond her experience. She was expected to perform the role set out in the employment agreement.

163 The dispute in evidence as to who initiated the taking on of the Trade Kitchens account and the increase in salary was referred to. However notwithstanding the applicant's contention as to the version of events it was not contended that the taking on of another account amounted to a fundamental variation of the contract of employment.

164 It was also submitted that if Gunnersen dispensed with the services of Specix it would not make the applicant's position redundant.

165 Significance of variation for Ms Ramnani. The respondent denied the applicant's assertion that removal from the Gunnersen account would involve a reduction in salary. This was tested in cross-examination and remained undisturbed.

166 It was submitted that removal of the Gunnersen account from the applicant did not constitute a demotion in that she was not being asked to perform lower level duties, but merely asked to do the same job on a different account. These circumstances were distinguishable from that involved in Sparrow v Little t/as Milk Plus (1998) 78IR365 (at 366) where the Full Bench of the South Australian Commission found that the change in duties was of such magnitude as to alter the employment contract. It was a substantial repudiation of the contract that entitled the appellant to end the relationship.

167 In this matter there had been no change in duties merely a change in accounts. The same work would be performed.

168 If the Commission found for the applicant in relation to the salary reduction and reversion to the original salary then again that could be distinguished from the facts and finding in Sparrow v Little on such issue.

169 In this matter the reduction in salary was 13% being the $5000 increase given over and above the starting salary of $38000 to reflect the extra work and responsibility in conducting two accounts.

170 Aside from the disputed issue of the salary reduction it was agreed on the facts that the applicant was struggling with the workload, and was not coping. This would have been exacerbated by the additional account. This occurred in the context of the applicant's lack of experience and qualifications in the industry. She had only been at the firm 3 months before being given/accepting extra responsibility and money.

171 It was submitted that any alleged reduction in salary and commensurate relief of workload could be deemed to be the responsible response of the employer to the "too much too soon approach" which may have been premature for the employee.

172 The applicant had contended she had been pushed to take the Trade Kitchens account and had not wanted more work, and was happy with the money yet claimed to have been given an ultimatum to go back to a lesser workload and money or resign.

173 It was submitted that the applicant's pride was wounded at having lost the Gunnersen account and this was the "real and effective" initiator of the termination rather that the conduct of the respondent. The applicant in a "fit of pique" voluntarily decided to terminate the employment relationship by resigning. There was no fundamental variation in the applicant's terms of employment.

174 As to the justification for the decision of Ms Awali, it was made clear that the headings used by the applicant in her submission were used for ease of reference but the content was not adopted.

175 There was no clear and persistent attempt to vary the employee's condition of service, as was the case in Police Service v Batton. Whilst the applicant made reference to the significance of the variation to her employment, it was simply a matter of the respondent dealing with a situation that whilst the respondents' business was being adversely affected the applicant could not be permitted to do anything to damage the respondents' business further. The relationships with clients were valuable ones and the respondent was entitled to take such reasonable steps as required to regulate the relationship with the applicant to preserve the respondents' business.

176 Actions of the applicant had damaged the respondents' relationship with a client. It was not simply a whim by the respondent but a response to actual complaints.

177 Reliance was placed on the common law obligation of uberrimae fidei that is that in the employment an employee is obliged to act in good faith and as part of that obligation not do things that will deprive an employer of business or clients.

178 The applicant had sought to downplay the Gunnersen complaint and suggested the respondents' concerns were manufactured. The Commission could observe the demeanour of the respondent, and it was submitted she was consistent in her evidence. No alternative explanation had been advanced as to why the issue caused such concern to the respondent. The applicant also conceded that in hindsight the situation could have been handled better.

179 The applicant's submissions sought to discredit the respondent through its interpretation of what made commercial sense in an industry that is fundamentally involved in advertising. Further it was "unhelpful and mischievous" to suggest the respondent involved the applicant in a level of duplicity.

180 In relation to the events of 1 September, notwithstanding the applicant's contentions, there was no adequate explanation for her clearing her desk and deleting emails.

181 Whilst the applicant contends she was pressured into leaving it was the respondents' contention that she refused legitimate directions to relinquish the Gunnersen account and abandoned her employment.

182 There was no obligation on the respondent to consider the applicant's request a week later to discuss the matter and reinstate, as the respondent had justifiably turned its mind to its business and replacing the applicant.

183 The respondents conduct as a whole did not give rise to any act or omission that would constitute unfairness, harshness or unreasonableness in relation to the applicant. The application should therefore be dismissed.

184 Ms Tucker in reply rejected the respondents' submission that the applicant had sought to misrepresent her position in relation to the Gunnersen account. This was clear from the transcript. Further, the respondents own evidence made clear the importance of the Gunnersen account.

185 On the issues raised concerning the meeting of the 1 September the respondent had misconstrued the applicant's evidence. She had no objection to continuing the work for which she was employed, being the Gunnersen account. To be relegated to the minor Trade Kitchens account would have been a significantly different workload, from that previously undertaken for Gunnersen.

186 The respondents' submission referred to "actual complaints by customers" yet no evidence apart from the Gunnersen email was adduced to support this.

187 Finally the respondents' submission about the circumstances of Ms Ramnani's leaving were contradicted by the evidence of Ms Sultan who stated Ms Awali asked the applicant for her resignation.

188 I have carefully considered the evidence and submissions of the parties in this matter.

189 There are a number of issues of disputed facts/events that need to be addressed. However some of those issues have no substantial bearing on or relevance to the central issue I must determine. That issue is whether Ms Ramnani was dismissed, voluntarily resigned or was constructively dismissed and if a dismissal occurred whether it was so harsh or unjust or unreasonable (or any combination thereof) so as to warrant the intervention of the Commission.

190 Some of those facts/events may go to the credibility of either the applicant or the respondent (or both), but again even issues of credibility may not be of sufficient relevance or weight to be factors to be taken into account in determining what effectively happened and resulted on 1 September and how the ending of the employment relationship between the parties may be characterized.

191 I have to say that I found that both Ms Ramnani and Ms Awali to an extent "gilded the lily" in relation to their respective cases and essentially each sought to cast negative aspersions on the other. I doubt that the picture each painted of the other was as bad as they made out.

192 It is perhaps understandable that both parties in an unfair dismissal matter seek to cast the best light possible on their case and evidence and the worst light on the other side. However parties run the risk that this becomes over-embellishment and exaggeration (and indeed manufactured evidence) that is not entirely helpful in trying to establish in a reasonably objective and clinical way exactly what took place in a given situation and who was responsible for what might have happened.

193 On the issue of Ms Ramnani's CV and qualifications, I note that she was only asked fairly cursory questions about this in cross-examination. Her application letter and CV were not tendered during this cross-examination. It was only tendered during Ms Awali's examination in chief. Understandably this presented some difficulties for Ms Tucker in re-examination of Ms Awali.

194 I note the hand written comments on the CV and "WEDSNDAY" (sic) alongside the Advanced Diploma Course. I also note Ms Awali's responses in cross-examination. I don't find them very credible.

195 The whole way this matter was introduced was most unsatisfactory and almost raises a Brown v Dunn consideration. Which I hasten to add was not pressed by Ms Tucker.

196 However in spite of the doubts Ms Awali sought to cast over Ms Ramnani, at the end of the day it is not particularly relevant to my consideration of issues arising from the events of 1 September.

197 Needless to say I accept that Ms Ramnani had not completed her qualifications and was still attending TAFE. At the time this was not particularly relevant and still remains particularly irrelevant.

198 Again the dispute as to whether it was Ms Ramnani or Ms Awali who first suggested the Trade Kitchens account and the $5000 wage increase is not particularly relevant in my view to the events of 1 September.

199 Frankly I don't believe either the version of what happened put forward by Ms Ramnani, or that of Ms Awali. I consider that it was more likely a merging or combination of the two versions.

200 No doubt Ms Ramnani expressed enthusiasm at the prospect of the new client coming on board with similarities of range as to that of Gunnersen. No doubt Ms Awali responded positively to this. I am simply not prepared to accept it was as black and white as they both make out and wasn't more a mutual coming together, as it were, of minds that resulted in Ms Ramnani taking on the account.

201 As to the issue of the wage increase I am also in two minds on this and unable to conclude who is telling the more accurate version. On the one hand it seems to me that Ms Awali would possibly have been saving the expense of having another employee to take on the account by offering a $5000 increase for the extra work rather than paying for the wage of an extra person. There was also the incentive of it being a "sweetener" to take on the extra work. I can't imagine she had planned increasing the salary of a new employee by $5,000 within such a short period of time.

202 On the other hand I don't imagine an employee in Ms Ramnani's position with the workload she had, not saying, "well yes I'm happy to take on the account but I want more money as I'm going to be doing extra work and having two clients to look after."

203 As Ms Tucker rightly points out regardless of who suggests the proposition Ms Awali approves it and authorizes it.

204 I find nothing particularly sinister in the request not to let Ms Sultan know about the extra money - fairly understandable in my view. That sort of wage differential in a small workplace could generate jealousy and claims for wage adjustment to match.

205 I have some concerns with the email that was purported to be sent by Ms Awali to Ms Ramnani on 2 July (Exhibit 7) confirming the allocation of the Trade Kitchens' account and the salary increase.

206 Again this document was introduced during examination-in-chief of Ms Awali - it was not put to Ms Ramnani in cross-examination, just that there was subsequent confirmation (but unspecified) from Ms Awali about the situation on 15 June (an incorrect date in any event).

207 The evidence of Ms Awali and Ms Ramnani was that the visit to Trade Kitchens was on 13 July with the subsequent discussion about the handling of the account on the 14 July. The increase in salary was to operate from 14 July.

208 It seems passing strange that an email could be generated supposedly on Friday 2 July (and 2 July was actually a Saturday), some 2 weeks before the events are supposed to have taken place. The email appears to have been printed off a computer on 29 October (the date on the bottom of the email page).

209 Unfortunately no one (including the Commission) picked up on this puzzling discrepancy during proceedings. It only came to my attention during the course of my usual consideration of the transcript and exhibits.

210 It would be pure speculation on my part to draw any conclusions as to the generation of the email and the purpose of such generation. In any event I emphasise that it assists neither party in actually establishing who initiated what in relation to the Trade Kitchens' account.

211 I am not prepared to accept it as reliable evidence as to anything that might have been said to Ms Ramnani about the necessity for confidentiality of her having the two accounts. Again in any event I don't consider that a terribly relevant issue to the events of either 31 August or 1 September.

212 There is no doubt, on the evidence, that on 31 August Ms Ramnani promoted a Trade Kitchens' product in the presence of a senior Gunnersen manager at the end of a Gunnersen specific presentation.

213 Given the concerns raised by Gunnersen at the monthly meetings that Ms Ramnani was not being aggressive enough in her promotion of their products it was frankly a very unfortunate thing to do. No wonder Gunnersen were upset, they had a right to be. It should also be kept in mind that the project concerned was also a reasonably large one. Ms Awali is correct; Ms Ramnani's primary obligation was to the client, Gunnersen, not the architect. 214 I have to say I would have thought it absolutely fundamental basic common sense that you don't promote what is essentially a competitor's product in the presence of the client you are representing.

215 Whilst there may have been some cross-over in range and products of the two accounts, with Gunnersen the higher end of the market and Trade Kitchens the lower, it seems to me to have been somewhat of a conflict to run presentations consecutively for both accounts.

216 However that this shouldn't occur was not specifically communicated to Ms Ramnani. It probably should have been in clear and certain terms. Ms Sultan clearly thought it was all right but was not really in a position to make such a judgement.

217 Ms Awali said she wasn't aware of the practice. It would only have become apparent on a careful comparison of the August monthly reports for the two accounts. From the evidence they were not completed until late August and obviously not long before 31 August so may not have been carefully considered by Ms Awali. The August report was also the first report for the Trade Kitchens account.

218 I still consider however, that even if one accepts that Ms Ramnani wasn't sufficiently on notice that the two clients should be kept apart and presented quite separately, her action on the 31 August would have created serious concerns for Gunnersen and Specix. A person in her position should have been aware of the inappropriateness of her action.

219 There can be no doubt that there was a complaint from Gunnersen and I accept Ms Awali's evidence that whilst nothing specific was said, the expectation was that something had to be done about Ms Ramnani. In the light of their previous concerns I don't wonder that they wanted something done and that they were considering removing their account from Specix.

220 I accept that the subsequent email from Mr D'Souza was only sent in October and was clearly sent in response to Ms Awali's request for confirmation of the phone call from Gunnersen. I see nothing untoward in that.

221 Ms Ramnani was the one who originally sought a meeting with Ms Awali to discuss her workload and her difficulties in coping with that. I have no doubt that two such clients and the additional presentations required by Gunnersen would have challenged any employee.

222 There is no evidence at all as to what Ms Ramnani was seeking. Whether it was just some additional assistance or perhaps removal of the Trade Kitchens account.

223 Similarly there is no evidence as to what Ms Awali intended in having already made the decision (prior to 1 September as she deposed) to take one of the accounts off Ms Ramnani. It may have been the Trade Kitchens' account, which would have made sense given the size and value of the Gunnersen account, the work already done and the projected presentations for the Nevamar range. Alternatively it may have been the Gunnersen account although really this does not seem likely given the disruption that would cause.

224 At this point I should say that Ms Ramnani was clearly incorrect in saying she only had to do 5 presentations per month. That may have been the case back when Gunnersen was her only account. Clearly the requirement was for 5 presentations per client. Therefore when she acquired the Trade Kitchens account the requirement was then obviously for 10 presentations. That is confirmed by the evidence of Ms Awali and Ms Sultan, which I accept.

225 As to the events of 1 September and what transpired between Ms Ramnani and Ms Awali once again I find myself in the position that I just don't accept or believe the account of either woman is accurate. The truth of what took place I consider to be more likely a combination of elements of what both have raised, but I have a greater difficulty with Ms Awali's account.

226 I have no doubt whatsoever that the various issues referred to by Ms Ramnani as being raised by Ms Awali and listed in the papers presented to her, were in fact raised. No doubt Ms Awali had considered these issues for raising at the scheduled meeting of 3 September to discuss her workload.

227 I have no doubt that Ms Awali made it clear that she was taking the Gunnersen account off Ms Ramnani because of the complaint from them.

228 Whilst it may have been Ms Ramnani's intention in the proposed meeting of 3 September to seek either some additional assistance or reduction of the workload, Ms Awali had already determined to remove one of the accounts. That meeting would have been an appropriate opportunity to have raised any on-going concerns with lateness, or other issues. It may have resulted in a warning being issued. Again I accept that that would be speculation but clearly it is not unreasonable to project that sort of scenario taking place at such a meeting. However I stress that none of the issues raised were of such a serious nature that anything more than a warning, at best, could have resulted. There is certainly no way that the issues canvassed could have constituted grounds for either termination or seeking of a resignation. I do not consider that either option was being considered by Ms Awali before 31 August.

229 I have no doubt that Ms Awali did not want Ms Ramnani to resign, was not seeking her resignation and did not terminate her on 1 September.

230 To have Ms Ramnani leave in the circumstances in which she did clearly caused considerable disruption and inconvenience to the business, something I am sure Ms Awali would much preferred to have avoided.

231 However I also have no doubt whatsoever that Ms Awali did put to Ms Ramnani in probably blunt and curt terms that she was losing the Gunnersen account, would retain the Trade Kitchens' account and that in the face of opposition to that proposal from Ms Ramnani, it was put to her on a "take it or leave it" basis.

232 Having observed the parties in the witness box I have no doubt that it was not a very pleasant confrontation between the two women, particularly from Ms Awali. Her handling of the situation undoubtedly left a lot to be desired. It could have been dealt with in a more sympathetic and supportive way.

233 Ms Ramnani was understandable upset. She had put a lot of hard work and effort into the Gunnersen account, which was a prestigious and important Specix client. She regarded it as her account. However the client has the right to call the shots. Ms Awali had to take action when requested by such a client, as I have no doubt occurred, in order to retain the client if the potential was that such a client could take their business elsewhere. I accept Ms Awali's evidence on this issue.

234 It is not dissimilar to the situations that arise with contractors on sites where the client company might request that a particular worker (be it clerk, or cleaner or maintenance worker) be placed elsewhere because of some issue that has been raised.

235 It is always difficult when such a request comes from a third party and no opportunity to respond is provided. That can create unfair situations, which from time to time have come before this Commission.

236 Given the situation presented to her it is no wonder Ms Ramnani became upset and emotional but it seems to me that she is the one who has precipitously rejected the option put forward by the employer and therefore initiates the ending of the employment relationship.

237 The option proposed by Ms Awali in my view, was not unreasonable. There was a problem with her handling of the Gunnersen account which had to be addressed. She had already indicated she had a problem with her workload and was seeking to have that also addressed.

238 Certainly Ms Ramnani also had other issues raised with her that had nothing to do with the Gunnersen complaint and on the whole were relatively trivial but may have been relevant to have been raised in the pre-arranged meeting on the 3 September.

239 One of her two accounts was being taken from her. I agree with Mr Kartsounis that this was not requiring her to carry out a job with lesser duties, skills or responsibilities, it was the same job but on just one account and with a lesser workload. On that basis it was not a demotion.

240 Ms Ramnani may have perceived it as such from a "prestige" point of view and no doubt it would have been a blow to her pride and confidence. That is entirely understandable, but she was not being dismissed and the employer was not seeking her resignation.

241 On the issue of the reduction of salary Ms Awali was adamant in evidence that it was not mentioned nor was it a consideration. Ms Ramnani was equally adamant it was explicitly referred to.

242 Again I find myself in the difficult position of not being entirely satisfied with either account. I think it more likely that it was mentioned in someway, and probably by Ms Awali.

243 Having said that I also have to say that I would not consider it totally unreasonable for Ms Awali to have put that condition on the removal of the Gunnesen account and the retention of the Trade Kitchen account.

244 After all, the original $5,000 (regardless of who initiated the increase) was specifically related to the additional workload associated with taking on the second account. It was not given for any reason associated with the Gunnersen account or for any other reason than simply two accounts were to be handled.

245 On that basis it would be hard to justify continuing to receive that additional amount (which had only been paid since 14 July - some six weeks) when only one account not two were now to be handled.

246 If in fact the meeting as proposed for the 3 September had proceeded (absent the complaint from Gunnersen), then it is quite possible a likely scenario would have been removal of the Trade Kitchens' account, given how recent had been its acquisition. In that case how could Ms Ramnani have reasonably expected to continue to receive $5,000 for handling that account?

247 Ms Ramnani clearly indicated in her evidence that she was not prepared to accept what was proposed by Ms Awali, could not stay there and hold her head up in the office. She then walked out, went to her desk, deleted emails, packed her things and left.

248 That in my view constituted an intention to leave her employment and effectively resign. It was not termination of employment initiated by the employer.

249 None of the other employees in the office who gave evidence heard what was said in the boardroom and can therefore provide no assistance at all as to what happened.

250 Whilst there is, I agree, some discrepancy between their original statutory declarations tendered in October 2004 and their later filed witness statements and evidence, and indeed slight indifferences between the witnesses as to the order of events, I don't consider this points to manufactured evidence, merely the unreliability of memories of events that have happened very quickly and unexpectedly.

251 I consider that Ms Ramnani did indicate in some way an intention to the staff that she was resigning.

252 Ms Awali, in spite of her evidence, I consider did ask for her resignation in writing, essentially that was written confirmation of what Ms Ramnani clearly indicated she intended to do by her rejection of what was put to her and what she said as well as her actions. A fairly normal request from an employer in such circumstances. I really don't know why Ms Awali wasn't prepared to admit to that.

253 Ms Ramnani responded by stating she would email her resignation later. I consider that this was in fact said by her.

254 Ms Ramnani, with Mr Hamawi's assistance brought back Specix material from her car and handed over her mobile phone when requested to by Ms Awali without protest. Certainly those actions would be consistent with an employee leaving her employment.

255 The letter Ms Ramnani attached to her witness statement from Joann Bunt does not in my view assist her case as it does not confirm that Ms Awali told her to resign but rather that the removal of the account/salary reduction or leaving was for Ms Ramnani to decide.

256 It is unfortunate that the advice to take a couple of days to think about the situation was not followed rather than leaving it for a whole week as Ms Ramnani did.

257 Certainly Ms Awali when she did not receive the resignation by email should have contacted Ms Ramnani and followed up on that.

258 The Commission directed questions to Ms Ramnani as to why she took so long to get into contact with Ms Awali. Her response was that she didn't want to do the Nevamar presentations and she was also angry about what had been said to her, an attitude that would have reinforced the fact that removing the Gunnersen account was appropriate.

259 However when she does contact Ms Awali on 8 September it is made clear to her that the job is still there if she accepts handling the Trade Kitchens' account only this is again rejected by Ms Ramnani.

260 The onus is on the applicant to satisfy the Commission that firstly she was constructively dismissed and secondly that if such a dismissal took place that it was sufficiently harsh, unreasonable or unjust to warrant the intervention of the Commission. Mr Kartsounis has appropriately cited the leading authority on constructive dismissal being Allison and Bega Valley Council 63 IR 68.

261 Extracts from the passages to be found at p. 72 and 73 were relied on. That discussion by the Full Bench is set out in full as follows: "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 b ring 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 test books and decided cases as a "construction 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 obviously 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."

262 There are a number of more recent Full Bench Decisions which have reaffirmed those principles, such as McCabe v New South Wales Police Service, 99 IR 361, Clark v Pittwater RSL Club Limited (1998) 84 IR 309, St Vincent's Hospital Sydney Pty Ltd v Harris [1998] NSW IR Comm 235,Britten v Riverstone Public School (unreported) Full Bench, IRC 5504 of 1999, (6 May 1999) Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, in IRC4710 of 1999; and Police Service of New South Wales v Batton (2000) 98 IR 154; and Sams v Contact Point International (2001) NSW IR Comm 18.

263 See also my unreported decisions in Seipel v John Fairfax Holdings Ltd, IRC 3635/2001 (25 July 2002) and Hanslow v Nationwide News Pty Ltd t/as News Advantage Sydney, IRC 4390/2002 (20 December 2002).

264 Despite some contradictory evidence from the respondent and issues I have with Ms Awali's credibility, (and possibly that of her witnesses), her handling of the meeting on 1 September and sympathize as I do with Ms Ramnani in the situation that confronted her, it does not alter the fact that she rejected a work change proposal by the employer that was not unreasonable in all the circumstances.

265 It did not represent a demotion in my view and whilst there was a reduction of salary involved it would not have been unreasonable for Ms Awali to reduce that salary given the reason Ms Ramnani received it in the first place, as discussed above.

266 Ms Awali had the right to make decisions about the best way to manage her business and allocate the work available to employees.

267 In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, New South Wales Branch v Sydney Water Corporation [2005] NSW IR Comm 1120 the Commission as currently constituted considered issues of managerial prerogatives in the context of a dispute about workplace changes. A number of cases were cited. It is not irrelevant to this matter to consider the principles canvassed in that decision.

268 The appropriate principles to be applied by the Commission are succinctly summarised by Cantor J in re Federated Engine Drivers v Firemen's Association of Australasia (Coast District) Broken Hill Proprietary Company Limited 1950 AR 371, as follows: "First, an employer has the right to manage his own business in his own way; secondly, the Commission will not interfere with this right unless it is satisfied that intervention is justified because in the exercise of this right unjust or unreasonable demands or conditions are imposed, because the action of the employer is taken in bad faith or amounts to victimisation or oppression or the like.

However, where the Company has introduced a new system of working the Commission will readily intervene in relation to ancillary matters such as where it is shown that the manning laid down by the Company is insufficient to carry out the work required or if the working conditions are such that they warrant the awarding of specific spell time or special rates of remuneration"

269 The issue of the right of the employer to determine what work is to be performed was also dealt with in Department of Water Resources v Australian Workers Union New South Wales Branch [1992] 43IR 76 where Cahill VP observed at p.80. ".........The evidence shows, for example that financial considerations might result in having some work deferred, or done at less frequent intervals. In my opinion it is for the employer to determine what work is to be performed. That having been determined, it is then a case for the tribunal to decide, upon application being made on behalf of the employees performing the work, and having regard to the work required to be performed and the conditions applicable, whether any manning award at variance with the employer's desires is warranted." 270 Whilst that matter also concerned an industrial dispute about manning levels nevertheless principles in relation to the employers' right to manage their business and determine the work to be performed are equally relevant in the context of an unfair dismissal application.

271 Ms Awali was not seeking Ms Ramnani's resignation. She clearly wanted to retain her as an employee but saw it necessary to make changes in the workload allocation, that also had a consequential impact on her salary.

272 Whilst Ms Ramnani equally clearly considered that change not fair and unreasonable it was her decision not to accept the change proposed and to leave her employment.

273 Ms Ramnani did have a choice - accepting the change proposed. She declined that and resigned. What she said and her actions unequivocally conveyed her intention to resign.

274 Applying the relevant cases cited I am unable to find that the resignation of Ms Ramnani constituted a constructive dismissal.

275 True it is that applying Britten v Riverstone Public School it could possibly be said that the employer's conduct in initiating the meeting on 1 September and putting the work changes proposed precipitated Ms Ramnani's resignation and could conceivably, on that basis, be the "real and effective initiator" of the termination. However having said that I again stress that I have concluded that Ms Awali was not seeking Ms Ramnani's resignation and wanted her employment to continue albeit under changed conditions. The changes proposed were neither harsh or unjust or unreasonable, taking all the circumstances outlined above into account.

276 In reaching that view I have considered the principles to be applied in considering whether if a dismissal occurs it is harsh, unjust or unreasonable as discussed in Outboard World v Muir (1993) 51 IR 167, Bankstown City Council v Paris (Wright P, Peterson J and Bishop C) IRC262 of 1999, 23 August 1999, and Sams v Contact Point International Pty Ltd (2001) NSW IRC Comm 18.

277 However having carefully considered the evidence and submissions in this matter, I am still of the view that there was no dismissal at the initiative of the employer. The applicant resigned her employment. That resignation was acted upon by the employer. There was no constructive dismissal.

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