Bizuneh v Department of Communities and Justice

Jurisdictional objections

1. The Department has raised a number of jurisdictional objections to the applicant's unfair dismissal application. Firstly, it was submitted that the termination of the applicant's employment was not by "dismissal" under Part 6 of Chapter 2 of the Industrial Relations Act 1996 ("Act"). The contract of employment was terminated by reason of the effluxion of time upon the expiry of the contract on 25 July 2019. Further, it was submitted that there was no conduct on the part of the Department to repudiate the contract that might give rise to a right of the applicant to bring the contract to an end by resignation or which could be characterised as a constructive dismissal. I will return to this issue later in these reasons for decision.
2. Secondly, it was submitted that the applicant is excluded from the unfair dismissal provisions of the Act by virtue of the operation of subsection 83(2)(a) of the Act and subclause 6(1)(a) of the Industrial Relations (General) Regulation 2015 ("Regulation") on the basis that he was engaged under a contract of employment for a specified period of time of less than six months. Thirdly, it was submitted that the application, having been filed on 28 August 2019, was outside the 21 day time limit specified in subsection 85(1) of the Act.
3. Section 83 of the Act relevantly provides as follows: 83 Application of Part (1) This Part applies to the dismissal of: (a) any public sector employee, or …………………… (2) This Part does not apply to an employee who is exempted from this Part by the regulations. Any such regulation may only exempt specified classes of employees included in any of the following classes: (a) employees engaged under a contract of employment for a specified period of time or a specific task, Clause 6 of the Regulation relevantly provides as follows: 6 Other exemptions from unfair dismissal provisions (1) For the purposes of section 83(2) of the Act, the following classes of employees are exempted from Part 6 of Chapter 2 of the Act: (a) employees engaged under a contract of employment for a specified period of time, if the specified period is less than 6 months, ……………………..
4. The contract of employment which governed the applicant's initial engagement with the Department was for a specified period from 25 February to 25 July 2019. However, this contract contained a term which provided that the applicant's temporary employment could also be terminated at an earlier date at the discretion of the agency head, including, for example, where work is no longer available, funds are no longer available or performance of duties is unsatisfactory.
5. In Custovic v State of New South Wales (Department of Family and Community Services - Housing NSW) ([2014] NSWIRComm 48) a Full Bench of the Commission (Walton J, President, Boland AJ and Tabbaa C) stated: 66 It seems to us that a contract that contains a term allowing one or both parties the unqualified right to terminate the contract is inconsistent with the concept of a contract for "a specified period of time". A contract for a specified period of time will attract the exemption under reg 6(1)(a) of the Regulation. If such a contract is held to attract the exemption notwithstanding that it may be terminated by one or other party at any time, it undermines completely an employee's right to access relief for unfair dismissal. An employer could simply make a contract for a "specified period of time"; with a clause inserted to give an unqualified right to give notice of termination at any time, and an employee who is a party to the contract would be precluded from making an application under s 84 of the IR Act. 67 We do not regard the exemption in reg 6(1)(a) of the Regulation as absolute in the sense that an exemption may be accomplished simply by placing a commencement date and cessation date in the contract of employment thereby preventing any scrutiny of the contract under the legislation's unfair dismissal provisions, which is what the respondent appeared to be contending. And later: 93 Turning back to the circumstances under consideration in the present appeal, the contract reserved a right to the respondent to terminate the contract prior to the end date of the specified period where the appellant's conduct and work performance was not satisfactory and where work for the appellant was no longer available. The contract further provided that "If your temporary employment will be terminated earlier, you will be given one (1) weeks' notice." The appellant's employment was terminated, pursuant to the contract, "due to your continued poor performance and conduct" on a date prior to the cessation date of the contract. 94 Given these facts, the employment of the appellant was terminable by the unilateral act of the respondent. The employment was not terminable by agreement of the employer and employee. It was not terminable by effluxion of the period of time specified in the contract of employment. On the approach discussed by Northrop J in Cooper, the appellant's contract was not a contract for a specified period of time and the termination of the employment contract by the employer without the consent of the employee would fall within the meaning of "dismissal" in Pt 6 of Ch 2 of the IR Act. 95 The appellant's contract was terminated because she failed to adhere to a term of the contract that her conduct and work performance was to be satisfactory. It was not contended, either before Newall C or on appeal, that the appellant's contract was terminated for breach. However, in this case it does not matter whether there was a termination for breach or not. That is not the question. The question is whether the contract was for a specified period of time. 96 The appellant's contract was not one for a specified period of time because it contained a term that allowed the employer to unilaterally terminate the contract where work for the appellant was no longer available. The contract specifically contemplated termination prior to the end of the specified period. As we earlier observed, a contract that purports to be a contract for a specified period, which provides for it to be terminated by the employer without the employee's consent prior to the end date of the specified period on the basis of some future event or circumstance occurring, the timing of the happening of which is uncertain or unknown when the contract is made, is not a contract "for" a specified period of time. 97 In our opinion, the appellant's contract of employment was not one for a specified period of time such that the exemption in reg 6(1)(a) of the Regulation applied.
6. I have serious reservations about the correctness of the above cited passages from Custovic. It seems to me that a contract of employment for a specified period of time does not become otherwise simply because one or both parties to it have a contractual right to bring the contract to an end before the specified end date. In any event, the issue does not arise in this case because the applicant's employment continued beyond the specified period. Contrary to the Department's submission, the applicant's contract of employment was not terminated by reason of the effluxion of time upon the expiry of the contract on 25 July 2019.
7. As stated above, it was also submitted by the Department that the applicant's unfair dismissal application was made outside the 21 day period specified in subsection 85(1) of the Act. Given the history of this matter set out at [12]-[14] above, if this were the only objection by the Department, I would exercise the discretion which the Commission has under subsection 85(3) of the Act to accept the application out of time. But that is not the end of the matter.

Constructive dismissal

1. In his unfair dismissal application, the applicant claimed that he was constructively dismissed as follows: 5) From the outset the Team Leader was not keen to accept me as a member of the Team T110. To that effect, I only received my log-in details on 28 February not from my Team Leader but through Ms Briana Magno, Senior Business Support Officer, Strawberry Hill Office. 6) The Department's constructive dismissal formally started in an aggressive and threatening email I received from Ms Leanne Davies, Record Administrator of the Department for a trivial matter or very minor mistake I made at the beginning of my fifth week of employment. In the five months I have come across hundreds and hundreds of shockingly and embarrassingly trimmed documents and I do not why Ms Davies failed to act on them. As I found the email of Ms Davies email unprofessional, threatening and did not follow the normal course of communication together with the lack of welcoming environment at Maroubra office, especially from Team T110 members and the Team Leader I approached Mr Paul Vevers, Deputy Secretary, Southern and Western Cluster of the Department. I was astonished by Mr Vevers suggestion that I discuss the complaint I made against the Team and its Team Leader with the Team Leader herself. I discussed the matter with the Team Leader as no alterative was given to me by the Team Leader I decided to continue to work with the team in the hope things they will accept me as a team member and situations can get better. 7) As part of the constructive dismissal process and in the hope, I would give up/ quit my job there were continuous and unreasonable demands by the Department - demands that cannot be met even by a highly efficient employee. One of the unreasonable demands I am asked by one of Team Leader employed by the Department is: Hi Tafese On Monday can you please book more CSV's for Thursday 30 and Friday 31 May, for both teams and we will assign more CSO's to go out so that the numbers increase. Please add 10 each to the CSO's on Thursday and 60 for each team for three CSO's to go out on Friday On that specific Monday I was asked to schedule 150 Client Service Visits from scratch; this is in addition to compulsory and specific tasks I must do on daily basis. 8) As a result of the continuous and unreasonable demand, I must spend hours every week nights and weekends at home to meet the unreasonable demand. 9) The unreasonable demands I was asked to meet can be summed up by 2,575 CSVs Business Action I created, and CSV Letters I generated in five months. The 2,575 figures do not include a couple of thousands of CSVs I rescheduled. 10) The unreasonable demand was aggressive and continuous. At the start of work on 17 June 2019 the Team Leader asked the Administrative Support Officer to go home and not to come the following day 18 June 2019. This was at the time half of the workforce attending Housing Forum at Sydney University - half workforce attended on 18 June and the other half on 19 June- the Administrative Support Officer who was partly sharing the work load with me sent home with pay deliberately done to overwhelm me with so many different tasks. 11) I copied the above email to the Manager of my Ms McGuiness and Manager Operation Services ('MOS') Mr Lee Harold. Even though the email is copied to Mr Harold, because of the serious matter raised in my email I was hoping he will investigate why the Administrative Support Officer sent home with pay but he did not bother to talk to me or even to acknowledge the receipt of the email. 12). On 10 July 2019, as part of the constructive dismissal process intensified a staff member used my computer log-in/ Userld to use the scanner attached to my computer/ workstation while I was on lunch break. When I go for lunch break or go to post office to collect mails and parcels, I usually lock my computer/ workstation. However, the scanner attached to my computer cannot be locked and whoever uses the scanner attached to my computer to scan documents my Username will be displayed in the Department computer system. As fundamental rule, we must TRIM or electronically file scanned documents to the appropriate client's folder immediately and once the document is electronical filed the Username will disappear from the computer system. The staff member deliberately used the scanner attached to my computer/ workstation in my absence while I am on lunch break to claim that I am not doing my job efficiently and to orchestrate the event that followed. At the time I drew the attentions of the MOS and the Acting Team Leader why my Username is used by a person who has no right to use it - to no avail. 13) For the purpose of creating clash between staff members and a hostile workplace, On 30 July 2019 the Acting Team Leader sent me an email that states: Hi mate Think this was sent to me by someone in error. Can you please forward to relevant CSO if required. (sic) Many Thanks Regards Jacob Connor 14) After careful investigation of the email I found out that the 'someone' the Acting Team Leader referred in his email was he himself. Yes, he sent an email to himself. One might ask why the Acting Team Leader sent an email to himself? 15) In June - July 2019 I observed the possibility of extension to my employment in the Department computer system where I am lawfully allowed to access. Since I have heard nothing from the Team Leader, Acting Team Leader and the MOS, I regard to my employment cessation or extension, on 22 July 2019 I contacted Ms Briana Magno, Senior Business Support Officer by phone regarding extension of my employment period and she has also indicated on unofficial basis that my employment looks to be extended to Saturday 31 July 2019. 16) On the morning of 25 July 2019, I arrived at work and tried log-in to the Department computer system, but I was denied access. Even though I knew that my 5 months contract ends on 25 July 2019, I did not expect the denial of access to the Department computer system as per unofficial advice of Ms Magno in the above paragraph and assurance of Mr Toleafoa the ongoing nature of my employment. 17) I contacted the Department IT section and they extended my log-in credential for one week till 31 July 2019. I have also contacted the Acting Team Leader and the MOS in regard to the extension of my employment - again- to no avail. 18) On Saturday 03 August I opened a letter sent to me by snail mail. The letter was from Ms Sharlene Kelly, Director, Payroll Services of the Department dated 24 July 2019 and it was regarding an offer of 5 (five) weeks extension to my current employment in the role of Housing Assistant till Saturday 31 August 2019. 19) The above letter is dated 24 July 2019 but the letter was franked by Australia Post on 01 August 2019 and delivered in my mail box on Friday 02 August 2019 and that is why I was able to read it on Saturday 03 August 2019. I do not understand why Ms Kelly did not email me the offer of five weeks extension. We ask our clients to communicate with us by email and text message. The act of Ms Kelly is also against departmental rule and has hidden agenda of the constructive dismissal process. I believe 24 July 2019 is backdated or sitting on Mr Kelly's desk for weeks waiting for catastrophe to happen and to terminate my employment. The annual salary $51,200 is also did not consider the pay rise granted to employees of the Department from the first pay period in July 2019. 20) I rejected the offer as I strongly believed the five weeks extension was not genuine and aimed to set me up in the coming five weeks and to dismiss me on the condition/ ground that is not included in the original offer I signed electronically/ online. The five weeks extension which is markedly different from the original offer and very short for an employer like NSW government Department to offer its employee. Government departments are not like a comer Milk Shop and do not plan and execute their program on weekly basis rather on a yearly basis at minimum. 21) In general, the five weeks extension offer that contains additional clauses that were not included in the original offer can be summarised in the following tables: Conditions of offer of employment Original Offer Five weeks extension (' Attachment 5') (Attachment 13) I Work is no longer available Work is no longer available 2 Fund is no longer available Fund is no longer available 3 Performance of duties is unsatisfactory Performance of duties is unsatisfactory 4 ================= Satisfactory conduct 5 ================= One week notice of termination.

22. As it is demonstrated in the above table the the five weeks extension offer includes conditional clauses that are not included in the original offer I signed on 19 February 2019. All the conditions stated in the original offer have been met. Team 110 which I am a member is ranked 1st in the District in terms of Client Service Visits ('CSVs'). I was responsible for managing and scheduling all T110 and some T107 CSVs. When I started the success rate of CSVs for T110 was around 33% and within five months the success rate more than double or reached above 65% which above targeted Key Performance Indicator. 23) As all condition stated in the original offer have been met and the ongoing nature of my employment as stated by Mr Toleafoa there was no reason for me to think my employment would be terminated on 24 July 2019. To that effect I did not receive a reminding letter or the Team Leader as well as the Acting Team Leader never informed me that on 24 July 2019 my employment would be terminated or offer renewed. Here there is the issue of perpetuity of a contact the Respondent must answer. 24) It is for the reasons mention in several paragraphs above I that I rejected the five weeks extension offer on 05 August 2019 and resigned involuntarily. I stress again the offer is not a genuine offer rather the continued constrictive dismissal process and to set me up in the coming five weeks. 25) On 05 August 2019 I further sent an email addressed to Ms Sharlene Kelly, Mr Paul Vevers, Mr Lee Herold, Mr Jacob Connor and Ms Joanne Hawley stressing the reason why I am resigning and my intention of filing an application against the department -my employer- at Fair Work Commission for numerous breaches of the Fair Work Act 2009. it is discontinued on jurisdictional basis. 26) The Industrial Commission of New South Wales, the Full Commission constituted by CORAM: Peterson J, Marks J and Connor CC in Allison, Anthony vs. Bega Valley Council [1995] stress the following: There are cases where 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 27) As part of the constructive dismissal process, I have received nasty and discourteous emails from staff. I am not able and do not have access to list all of them but few of them: Reply to my emails seeking information: Client Service Officer #1 There will be a name change, however that's not for you to action. Client Service Officer #2 Just do whatever you are told to do. The body of another Client Service Officer says just only: Could you please close your action. (sic) 28) Further, as part of the constructive dismissal process, I was also denied resources and information and blocked access and support to computer Apps that were vital to perform my job. 29) I am being discriminated as other employees with same employment recruitment process were given 12 months contract. 30) I am seeking remedy that involved reinstatement my employment with reasonable conditions and duration (not five weeks). The location should be other than Maroubra office and where I will not have direct contact with the participants of the constructive dismissal, still within the Department in the Justice section of the Department.

1. In reply to the Department's jurisdictional objections to his application, the applicant filed written submissions which contained the following: My contract of employment ended by my resignation only not by effluxion of time. Whether as per (Annexure 1) the email from Mr Toleafoa (at [2]) or (Annexure 2) the email from Ms Magno (at [10]) my employment contract was up until July30/31 August 2019 respectively. I only resigned on 05 August 2019 after I received the 24 July 2019 letter in my mail box on 03 August 2019. As demonstrated above in paragraph 4 above the 24 July 2019 letter together with the intensified constructive dismissal and setup in the lead up to my resignation that threaten my safety immediate resignation was the only option I left with (Annexure 4) (at [12]). The only five weeks extension to my employment and the additional conditions included -as shown on the table below- to that of the original offer letter were also alarming to my resignation
2. The applicant then reproduced the table which was set out at paragraph 21 of his unfair dismissal application (at [23]). In other parts of his written submissions, the applicant repeated that he had resigned and referred to the letter set out at [12] above as "my resignation letter".
3. At the hearing of the application on 15 October 2019, the applicant elaborated on the matters set out at [23]-[25] above. For example, in relation to the email to him from Ms Magno, which is set out at [10] above, the applicant made the following submission: APPLICANT: Yeah, last day (Friday 2 August 2019) I was there. And so then I went home. Because I live in Housing Commission, I cannot go night time to the mailbox. Friday, next day, I went to the mail box 3rd of August. I open. I found that letter. When I found that letter I was confused actually why they send me. They should've sent me by email, quickly. This is out of, you know, it is not characteristics of a big department. Why it is they use this technique, I don't know. So it is because of that, Ms Mungo's (Magno's) email attachment annexure 2, that's why I was keep working and that's why the respondent keep paying me. So the 5 of August, on Monday, it become, you know, I thought this is part of the constructive dismissal. I was scared even to go back to work because in the lead-up up to those, there was a lot of problem. There was - it is very bad. So I decided not to go. So--
4. Later in the hearing the following exchange took place: COMMISSIONER: …I'm not concerned at the moment about the out-of-time matter. I'm concerned about the constructive dismissal aspect. APPLICANT: Yeah. COMMISSIONER: You've mentioned some things in your application and in your written submission that go to that issue. APPLICANT: Yeah. COMMISSIONER: Is there anything else you wish to place before the Commission to support your contention that you were constructively dismissed? APPLICANT: Yeah, I have a lot of document to provide because, you know, when we make application before this Commission it where we says "brief". It says "brief". COMMISSIONER: Yes. APPLICANT: So I have made a brief. I haven't attached a lot of document. COMMISSIONER: Part of this hearing today, and I think it's reasonably clear from the objections that have been taken by the department and your response to it, is that they say that you were not constructively dismissed. APPLICANT: I have a strong evidence. I have a strong evidence, your Honour. I'm not - because I have read a case. I'm not sure if we today, if we are, you know, if I have to prove the constructive dismissal right now. COMMISSIONER: That's an issue that's before me at the moment. APPLICANT: Because there was a High Court in Australia in the High Court in something where, you know, because I have submitted this submission, reason - I have this reason for application, 7 pages. It explains the constructive dismissal. COMMISSIONER: I've read all of that. APPLICANT: Yeah. COMMISSIONER: What I'm asking you is there anything else, apart from what you've set out here in your application and in your written submission, is there anything else you want to put before me going to this issue of constructive dismissal? Because you raised the case of Alison and Bega Valley Council in your submission. APPLICANT: Yeah. COMMISSIONER: So you're aware that that's an issue. APPLICANT: Yeah. COMMISSIONER: Because if you're not constructively dismissed, if you resigned and the resignation wasn't caused by the conduct of the employer, then there's no dismissal and there's no jurisdiction. APPLICANT: There is, there is, there is. Because for example, for one reason for example, there was unreasonable demand to do to - there was an unreasonable demand from my manager to do some tasks which is not possible. ………………………….. COMMISSIONER: What I'm asking you is there anything else that you wish to place before the Commission that goes to that issue as to why you were forced out, if you like? APPLICANT: Because there is also I mentioned on the last day on the letter, it was unsafe, you know. There was people coming from another location and sit next to my work bench and, you know, making some threatening gesture. Sometimes they bring a big bottle and put it next to me, big glass bottle. You know? People, they don't bring glass bottle in or like a big, you know, 750 millilitre bottle and they are doing a lot of noise to annoy me, you know, just provocate(as said) me and to create some, you know, fight or something like that. That's why it was dangerous for me. I decided not to go. It was unsafe. All those situation when there's accumulate, you know, cause accumulation of those forced me. And the other thing, the 5 week extension by itself, it is an evidence. How a government department, you know, billion dollar budget, how is it reasonable for a person with my performance, I doubled as a KPI(?) within 5 months and they give me 5 weeks extension. So all those things is just there. Some time I remember back when I was - one guy, he was walking in the compound. The manager said, "What are you doing here?" "I'm just looking for my friend." "You are not working here?" "Yes." The guy, the manager said, "Employ him and sack him." You know? The thing is the 5 month extension is for me they would keep me and to fire me with some misconduct or some other things. So that was the plan. That is what this Commission, your Honour, to consider. So that work, it is a very, very - other words, it was unsafe because there was high demand. There was, you know, email, so many bad email. Sometimes because I was asking to be reinstated, I don't want to just, you know, let it all get out because I might be able to work again with the same people, so I was very careful even to tell all what happened to me. So that is it. COMMISSIONER: Is that all you wanted to say about that? APPLICANT: Yeah.

Determination

1. In Allison v Bega Valley Council ([1995] 63 IR 68) a Full Bench of the Commission (Peterson and Marks JJ, Connor CC) stated (at 72-73): It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and 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.
2. A Full Bench of the Commission (Wright J, President, Staff J, Stanton C) in Maher v Department of Corrective Services (NSW) ([2006] 151 IR 102) heard an appeal from a decision of Commissioner Connor in Maher v Department of Corrective Services (NSW) ([2005] NSWIRComm 1127) in which the Commissioner rejected the applicant's claim that he had been constructively dismissed. The Full Bench at [17] quoted the following passage from the decision of Commissioner Connor at [12]: "As the Full Bench confirmed in Allison v Bega Valley Council , to establish a constructive dismissal from Mr Maher's resignation, Mr Maher carries the onus of establishing to my satisfaction that his resignation was something which the Department had, in fact, engineered, ie that it gave him no choice but to resign. The last word from the Department was its offer of mediation which Mr Maher declined - hardly evidence that it was creating such difficulties for Mr Maher that he was forced to resign, no matter what Mr Maher may think. I share with Ms Anderson the view that Mr Maher's decision to resign or retire was, in the end, taken on his own volition."
3. The Full Bench could not discern any error in the decision of Commissioner Connor.
4. The relevant facts of the present case are as follows: (1) On 19 February 2019, the Department made the applicant an offer of employment for five months from 25 February to 25 July 2019 which he accepted. It is entirely irrelevant that Mr Toleafoa had previously discussed with the applicant a six month opportunity with the possibility of extension as this was never offered. (2) Prior to 25 July 2019 the applicant was advised that his employment was to be extended for a further five weeks to 31 August 2019. (3) The applicant continued working for the Department after 25 July, his last day of work being Friday, 2 August 2019. (4) On Saturday, 3 August 2019, the applicant received a written offer, dated 24 July 2019, from the Department of a further five weeks' employment from 25 July to 31 August 2019. (5) On Monday, 5 August 2019, the applicant wrote to the Department declining the offer of further employment. He wrote that "I am not resigning or quitting my job voluntarily" and foreshadowed an application to the Fair Work Commission for "numerous breaches of The Fair Act 2009".
5. The applicant's letter of 5 August 2019 was not couched in the usual terms of a letter of resignation. However, throughout the proceedings he repeatedly referred to his "resignation". I am prepared to accept that the applicant did, in effect, resign and claimed that he was constructively dismissed by the Department.
6. The decision of the Full Bench in Allison set the test for constructive dismissal at a much lower level than the classic "resign or you will be sacked" scenario. Nevertheless, on the test in that case, the Commission will still need to consider whether the applicant's resignation was given freely and without any undue pressure.
7. I have taken all of the matters that the applicant has placed before the Commission as factors that caused him to resign at their highest in favour of the applicant's claim, including those factors which are not supported by any evidence. Taken individually or collectively, they do not constitute behaviour by the Department such as to render the employer's conduct the real and effective initiator of the termination of the contract of employment.
8. None of the emails placed before the Commission by the applicant constitute such behaviour. For example, an email to the applicant from Leanne Davies, Records Administrator, of 5 April 2019, is referred to by the applicant at paragraph 6 of his unfair dismissal application (at [23]) in the following terms: "The Department's constructive dismissal formally started in an aggressive and threatening email I received from Ms Leanne Davies, Record Administrator of the Department for a trivial matter or very minor mistake I made at the beginning of my fifth week of employment". This email is set out below (with the record number, name of the person concerned and the hyperlink not reproduced in full): Good morning Tafese, As part of the ongoing monitoring of OneTRIM, the Records Management team will be conducting regular reviews on records that have been created in One TRIM. There are a number of areas that will be reviewed, in particular, but not limited to key words, security, names, date and titling. Please note that only the metadata has been reviewed - not the contents of the record. You have received this email as the records you have created fit the criteria of what we are reviewing. SUB19/6……. NSW Civil & Administrative Tribunal - M…… A…… SH 19/1…… * All information entered in the free text field should be typed in title case the first letter of every word a capital letter. Please type the name in title case. Please see attached information that will assist you when amending the record and for future use. Further information can be obtained in the One TRIM Business Rules see link below. http://intranet................................................................... This access review will be conducted on an ongoing basis. Please amend the record as advised. Many thanks for your support in this process. Kind regards
9. To describe this email, which appears to be a pro forma communication used to advise staff generally of records that require amending, as "aggressive and threatening" speaks volumes to the lack of substance in the applicant's claim that he was constructively dismissed.
10. I have already dealt with the email from Mr Toleafoa to the applicant of 11 February 2019 (at [2]). How the email from Ms Magno to the applicant of 25 July 2019 (at [10]) could possibly constitute behaviour by the Department such as to render the employer's conduct the real and effective initiator of the termination of the contract of employment is beyond comprehension. The same may be said of each of the other emails relied upon by the applicant.
11. I make the same observation about the applicant's allegation concerning the unauthorised use of his "personal UserId", his complaint that the Acting Team Leader was not willing to approve the wireless headset the he had requested and all of the other matters raised by the applicant, many of which verge on the trivial.
12. I refer to the passage from the decision of Commissioner Connor in Maher cited at [31] above. In similar fashion, I observe that the last word from Department was its offer of a five week extension of employment which the applicant declined - hardly evidence that it was creating such difficulties for the applicant that he was forced to resign, no matter what the applicant may think. The applicant's decision to resign was, in the end, taken on his own volition.
13. In this matter, there has been no dismissal, constructive or otherwise. The applicant's unfair dismissal must be dismissed.
14. I so order. John Murphy Commissioner

Amendments 03 December 2019 - Amended Paragraph 29 subparagraph 17 to read as "main" not "mam" 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. Decision last updated: 03 December 2019