Elisjones v Dorena Pty Limited t/as Kyle Management Resources

APPLICANT Ms B Elisjones in person LEGAL REPRESENTATIVES: RESPONDENT Mr R de Meyrick of counsel

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES Grayson DP

BARBARA ELISJONES v DORENA PTY LIMITED t/as KYLE MANAGEMENT RESOURCES

Application by Barbara Elisjones pursuant to section 84 of the Industrial Relations Act 1996 re alleged unfair dismissal

1 I am asked in this matter to decide whether the applicant was "constructively" dismissed and if so, whether the dismissal was unfair such that compensation should be awarded. Reinstatement is not sought and nor is re-employment.

2 By way of background, this applicant commenced employment with the respondent, a recruitment/employment agency, in or about April 1995. It is fair to say, I think, that the working or employment relationship broke down irretrievably after a lengthy history of strain, tension and ongoing differences between the applicant and the respondent's managing director, Mr Foley.

3 The applicant and Mr Foley had a number of heated discussions and disagreements and after one such discussion on 28 June 2001, the applicant went on sick leave and did not return.

4 She thereafter submitted her resignation from the respondent's employ by letter of 16 July 2001 giving preservation of her health as the motive and attaching a medical certificate to that effect.

5 Evidence in documentary and oral form was taken on 27 November 2001, 28 November 2001 and 1 March 2002 and the Commission's decision was reserved following receipt of the respondent's written submissions on 8 April 2002.

6 The applicant represented herself throughout the proceedings and Mr R de Meyrick of counsel appeared for the respondent.

7 This has been a difficult case in many ways because of the very obvious and deep seated disregard for each other displayed by the applicant and Mr Foley, and in my judgement it is that mutual disregard which played a predominant role in the breakdown of the employment relationship to which earlier reference has been made.

8 I say that after careful consideration of the evidence and the countervieling arguments including the authorities relied upon by either side of the record. I say that further bearing in mind as always in cases of this kind where litigants appear unrepresented, that one needs to be conscious of a lesser form of forensic sophistication than would otherwise be the case and that the Commission, as always, is enjoined by s163 of the Industrial Relations Act 1996 to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

9 In that regard, the applicant was assisted with appropriate guidance and advice (see for example, Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227; R v Gidley [1984] 3 NSWLR 168; R v Zorad [1990] 19 NSWLR 91) and was granted considerable indulgence in respect of the manner in which evidence was adduced, cross-examination was approached, documents were filed and served and so on. Further in that regard, the assistance of Mr de Meyrick of counsel is acknowledged.

10 For all that, however, it is for the applicant to discharge the burden she bears of establishing on the balance of probabilities that she was dismissed from employment (see Western Suburbs District Ambulance Committee v Tipping [1957] AR (NSW) 273; Bigg and Anor v NSW Police Service (1998) 80 IR 434; Re Barrett v Crown Street Women's Hospital [1947] AR (NSW) 565; Re Homebush Abattoir [1966] AR (NSW) 386)). In my opinion, the evidence in this case does not permit such a finding.

11 The applicant's resignation, as Mr de Meyrick points out with some persuasive force was tendered well after her last heated discussion with Mr Foley on 28 June 2001, after she had set in train her own business enterprise in opposition to the respondent or, to perhaps express it more neutrally, in the same line of business as the respondent and after she had formed the view which she expressed to others including a former director of the respondent, Mr Blake, that she could no longer work with Mr Foley.

12 Mr Blake, who was called in the applicant's case, gave evidence to the effect that he had been approached by the applicant early in July 2001 to intervene on her behalf in order to finalise payout details. The applicant was at the time negotiating with the respondent to be retrenched.

13 Having said that and to be fair to the applicant, there can be no doubt that her resignation was accepted without resistance or question by Mr Foley who had also formed a view about the viability of the working relationship between the applicant and himself, although he steadfastly resisted the notion that by his words on 28 June 2001 or otherwise, he had forced the applicant to resign. I accept that.

14 Mr Foley, as his evidence makes clear, was also gravely concerned for the ongoing viability of his business and was increasingly frustrated by what he perceived to be the applicant's failure in her senior position, to appreciate his wishes or management philosophies.

15 As Mr de Meyrick submits, it is equally clear from the applicant's evidence, or the tenor of it, that she had little or no respect for Mr Foley's management approach and was inherently resistant to the measures he sought to take in order to improve the business fortunes of the respondent.

16 The evidence of other witnesses called in the applicant's case, with no disrespect to them, does little to assist the Commission in its quest for the facts given that, broadly stated, it serves only to establish that which is not materially disputed or necessarily relevant namely, that Mr Foley may not have been a pleasant person to work for or that the work environment at the respondent's place of work was less than ideal or that Mr Foley raised his voice at the meeting of 28 June 2001.

17 The necessary focus in this case must be as to whether the applicant was constructively dismissed as she alleges.

18 In that regard, a useful starting point in the approach to such a question are the observations of a Full Commission, as it then was, of the Industrial Relations Commission of NSW in Allison v Bega Valley Council (1995) 63 IR 68 an extract of which is set out below: 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 enquiry. That inquiry should involve 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 the issue.

19 In Easton v Bourke Air Charter Pty Ltd & Ors [2000] NSWIRComm 155, Kavanagh J described it this way at [79]: As to the claim there is a constructive dismissal, such occurs when an employer sets out on an improper course designed to obtain the termination of the employee's contract of employment without formally dismissing the employee. It will typically arise where, as in Bayley's Case , the employee is presented with a "resign or be sacked" ultimatum.

20 In this case, on the preferred evidence, the respondent cannot be said to have compelled or unduly influenced the applicant to resign and although there was a heated discussion with Mr Foley on 28 June 2001, it was as Mr de Meyrick submits, by no means the first time they had clashed in such a manner. They clearly did not have a good working relationship and each seems to have held a poor view of the others' skills and ability. For all of that, there is an absence as I view the evidence, of the ingredients in the respondent's conduct necessary to ground a conclusion that there was a constructive dismissal let alone one that was harsh, unreasonable or unjust such as would make it relevantly unfair.

21 In those circumstances, there is no warrant for the intervention of the Commission. The application is dismissed accordingly.

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.