He confirmed that Ms Deckers' prior work record was not in issue and that he was dealing with the complaints against her in terms of the normal policies and procedures of FWMH.
19 Mr Feerick submitted that Mr Williams was well aware that Ms Deckers' depression was work related. I do not accept this is so. Mr Williams denied that Ms Deckers gave him any impression that her depression was work related during their initial discussion in September 2003. The WorkCover medical certificate provided by the applicant's general practitioner, Dr Ayoub, was issued after the work performance issues had been discussed with Ms Deckers and after the letter was sent to her requiring her to work on Mondays and Tuesdays for a limited period.
20 Under cross-examination Ms Deckers confirmed that she had received no suggestion or advice from anyone associated with the respondent that she should resign; she had not kept her appointment with Ms Wake to express her concerns about Mr Williams; and Mr Williams had not contacted her by telephone or letter in the weeks prior to her submitting her resignation.
21 Whilst Ms Deckers stated that she was afraid of Mr Williams, there was nothing in the evidence or in his style or demeanour to suggest that the fear was caused by Mr Williams. Rather, on the medical report provided in evidence by the applicant, it appears that she had suffered from adjustment disorder and has always experienced high levels of anxiety.
22 Mr Feerick for the applicant submitted that the respondent was unreasonable in moving Ms Deckers from weekend work to weekday work after a large number of years working weekends. I find the circumstances of this case are distinguishable from those in Clark v Pittwater RSL Club Limited [1998] NSWIRComm 637, to the extent that Ms Deckers was required to work week days for a limited period of four weeks, without change to her role or duties. In addition, between the notice of 2 August and the termination of the employment relationship on 1 November, she had a period of two months to consider her options, to seek advice (which she did) and to discuss alternatives with her employer (which she did not). Mr Williams gave evidence that he has been flexible when asked to do so by other staff in similar circumstances, and I have no reason to believe that Ms Deckers would not be granted the same consideration if she had only requested it.
23 The instruction to work on Mondays and Tuesdays for a period of four weeks was not extraordinary in the circumstances. It was normal procedure by the respondent following issues of work performance remaining unresolved over a period of time. Child care arrangements for Ms Deckers' sons, aged 13 and 15, were not even raised by Ms Deckers with the respondent. She did not explain to her employer her reason for non-attendance at the meeting arranged with Ms Wake. She did not attempt to discuss any alternatives with Mr Williams or Ms Wake, or even to discuss her concerns with Ms Godbee, with whom she evidently had a satisfactory relationship.
24 The circumstances in this case are also distinguishable from those in James and Global Gossip Pty Ltd [2000] NSWIRComm 43 where the actions and conduct of the respondent in that case were such as to have been found to have forced the applicant to resign. The events in Staal and Tupene and Health and Research Employees' Association of New South Wales (on behalf of Nagy and Others) and Western Sydney Area Health Service [2004] NSWIRComm 27 are similarly distinguishable.
25 It was revealed in evidence that the policy of the respondent was to ensure that the temporary arrangements for a change of shift would not result in any loss of pay during that period. It may have reduced Ms Deckers' distress a small amount if this information had been provided in writing in the first instance, that is, in the letter of 2 August. However, I am not satisfied that it would have made a significant difference to Ms Deckers' decision not to return to work.
26 The verbal evidence of Mr Williams was entirely consistent with what was written in his affidavit and with the evidence of other witnesses for the respondent, and was entirely credible. That Ms Deckers was feeling "terrified" by Mr Williams cannot be found, on the evidence, to be caused by Mr Williams deliberately or otherwise. Mr Feerick referred to Ward v Mobile Innovations Limited [2002] NSWIRComm 28 in regard to the conduct of the respondent being different to their intention. In this case I am satisfied that neither the conduct nor the intention of the respondent was at fault.
27 Mr Feerick submitted that Ms Deckers was not able to cope with her work without assistance, but that the assistance offered, that of supervision of Mr Williams on Mondays and Tuesdays, was not appropriate. In fact the evidence showed that the solution offered was completely in accordance with the respondent's normal policies and procedures. Mr Williams was at all relevant times Ms Deckers' supervisor. The supervision offered on Mondays and Tuesdays would be indirect. Mr Feerick also submitted that there was no chain of command in the catering area, unlike that which existed in the nursing stream. This submission was contrary to the evidence which showed there was a Team Leader in the kitchen who provided direct supervision of the catering staff and who would continue to do so regardless of the days of the week.
28 Mr Feerick made a number of further submissions contrary to the evidence. For example, he said that Mr Williams did not address Ms Deckers' concerns about the workload. The evidence of both Mr Williams and Ms Wake showed that he had in fact implemented a range of strategies to assist her on both a short term and long term basis. In addition, Mr Feerick suggested that Mr Williams was investigating Ms Deckers' work performance at the same time as her complaints against him were being investigated. This was not so. No investigation into Mr Williams had commenced since Ms Deckers had not met with Ms Wake and so had not made any complaint about Mr Williams. These examples are not exhaustive.
29 In all the circumstances I can only conclude, on the evidence, that Ms Deckers' anxiety and depression which led to her resignation followed the normal and appropriate response by the respondent when complaints were received from staff and residents about Ms Deckers' work performance.
30 As Mr Wurf submitted, there cannot be a claim for unfair dismissal without there first being a dismissal. It was not the case here, as it was in Allison v Bega Valley Council [1995] NSWIRComm 175, that there was conduct by the employer that was the effective cause of the termination of the applicant's employment. The employer had expressed no desire to bring about the termination of the contract of employment, either by word or deed. The response to receiving a complaint against the applicant was in accordance with the normal practice of the respondent, and could not be considered to be unfair. Mr Williams' explanation for contacting Ms Deckers by telephone was reasonable; her reaction - fear of answering her telephone - was not.
31 Mr Wurf submitted that the respondent had fulfilled the requirements of procedural fairness as established by the Commission, citing Rapp v Wauchope RSL Club Ltd [1995] NSWIRComm 233. I am satisfied that this is so. Mr Feerick submitted that Mr Williams erred by not inquiring as to the effect on Ms Deckers of a move to week day work. It would, in my view, be improper for him to inquire into details of the impact of work on any employees' private life or home life, unless such issues were raised first by the employee.
32 Indeed, Ms Deckers was aware of her rights to raise a concern with her employer. During a conversation following her written complaint about her workload and some safety issues she threatened to go to the Board and was made fully aware of her right to discuss any issues with Ms Wake. She exercised this right by telephoning the Human Resources office of the respondent and subsequently setting up an appointment to meet Ms Wake. That she did not keep the appointment is a matter for herself. It was available to her to speak to Ms Wake rather than to meet with Mr Williams to return her uniforms and provide her written resignation.
33 Sadly, Ms Deckers has been out of work since 1 November 2004 due to her ill-health. This was not the fault of her employer. Having written her letter of resignation one day and delivering it on another, returning her uniforms at the same time, it cannot be said to have been a spur of the moment decision.
34 Notwithstanding Ms Deckers' ill-health, I respectfully agree with the comments of Grayson DP in Ward, where he said:
In that regard, I bear in mind and with respect agree with Mr de Meyrick's submission that contracting parties should conduct themselves in their contractual relationships on the basis of mutual good faith ( Lewis v Motorworld Garages Ltd [1936] ICR 157; Imperial Group Pension Trust Ltd v Imperial Tobacco Ltd [1991] 1 WLR 589) and further, that there is an implied term in every contract of employment that neither an employee nor an employer will, without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or damage the relationship of confidence and trust between that employer and employee ( Malik v Bank of Credit and Commerce International S.A. [1997] 3 WLR 95, I do not think those principles have been offended here because among other things, the respondent on my view of the evidence was within its rights to raise with the applicant and to pursue its ongoing concerns as to her work performance and being "good and considerate" ( Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666) does not, it seems to me, require an employer who perceives the need to manage unsatisfactory work performance, necessarily to desist for fear of giving offence to or otherwise upsetting the employee/s concerned.
35 Ms Deckers was fully aware of the context in which her actions were situated. Mr Williams had discussed complaints from residents with her in February and April 2004. I cannot accept that her depression was caused by the respondent or that she was not aware of alternatives to resignation. It was necessary for him to manage work performance issues for the sake of the applicant, as well as in the interests of residents and other staff.
36 Mr Wurf submitted that the application was fundamentally misconceived in that reinstatement was not sought and that compensation could not have been ordered where the applicant has had medical certificates for the entire period between the time of the termination of her employment until now and indeed continuing through to August 2005. However the respondent did not apply for costs in these proceedings so as not to penalise the applicant any further.
37 Having regard to all the evidence and the submissions made in these proceedings, I am not persuaded that the applicant was constructively dismissed. I am satisfied that she made a considered decision to resign from her position. It follows that the Commission does not have jurisdiction to intervene in this matter.
38 The application is dismissed.