Hanna v Northern Sydney Local Health District

Industrial Relations Commission (NSW)|2016-06-22

Judgment

This matter concerns an application by Ms Inas Hanna pursuant to s 84 of the Industrial Relations Act 1996 (the Act). The applicant commenced work with The Crown in Right of the State of New South Wales (Secretary, NSW Ministry of Health), in respect of Northern Sydney Local Health District (the respondent) on 19 November 2009. At the time of her alleged dismissal, the applicant was employed as a Data Manager.
In or around March 2014, the applicant filed a s 84 application in IRC 52 of 2014 also alleging constructive dismissal. That matter was resolved in conciliation before Commissioner Newall shortly thereafter and a notice of discontinuance was subsequently filed.
The applicant also claims in this matter that she was constructively dismissed as a result of a written request by the respondent that she "show cause" as to why her employment should not be terminated following a lengthy period of absence from the workplace. On 5 February 2015, the respondent wrote the applicant in the following terms: "STRICTLY PRIVATE AND CONFIDENTIAL Dear Ms Hanna Re Proposed Termination of Employment I write in regard to proposed action by Northern Sydney Local Health District (NSLHD) in relation to your employment. After careful consideration and taking into account the needs of the Department, your request for leave without pay until September 2015 is declined. You have submitted a medical certificate stating you are unable to work in your substantive role but can work in another location. There are no suitable alternative roles at other locations at Health Manager Level Two grade within NSLHD. NSLHD has twice, lawfully and reasonably, directed you to attend an independent medical assessment to enable a return to work plan to be put in place. On both occasions you failed to attend the independent medical assessment and have been unwilling to participate in return to work discussions. As you are unable to work in your substantive role and have not engaged in return to work plans, the proposed action is that a recommendation for the termination of your employment contract is to be made to the Chief Executive NSLHD. You will be provided with one month's salary in lieu of notice. Prior to this recommendation being actioned, you are entitled to respond to the proposed action and provide reasons as to why your employment with NSLHD should not be terminated. You are instructed to attend a meeting with Human Resources on:- Date: 11 February 2015 Time: 1pm Location: Royal North Shore Hospital, Building 51, Human Resources Meeting Room level 1. This meeting also provides you with the opportunity to raise mitigating factors or other information you would like considered in relation to the proposed action. You may ask a support person to attend the meeting with you or to assist you in the preparation of your written response. If you are a member of a Union or Association you may wish to contact them for support. As we need your first hand point of view, the support person cannot act as your advocate. The person should not be a person who has or may become involved in the matter. Alternatively, you may wish to respond in writing, if so, please respond by 11 February 2015 so that your written response can be taken into consideration in relation to the proposed action. As a reminder, please be assured that you are protected by and bound by confidentiality and therefore must not discuss this matter with anyone other than your support person, myself or my managers. In addition, you may wish to access the NSLHD free and confidential Employee Assistance Program on Tel: 9462 9299 for assistance. If you have any questions please contact Ms Anastasia Pavlidis, Human Resources Consultant on Tel: 9462 9818 or via email ."

Resignation letter

The applicant set out a four page response to the show cause letter in correspondence dated 10 February 2015 and attached it to an email sent to the respondent the following day, 11 February 2015. The applicant alleged that the show cause letter had caused her to be constructively dismissed. In that regard, the applicant based her claim in part on the respondent's alleged conduct from at least February 2014, when she considered the proceedings in IRC 52 of 2014 effectively reversed a threat of dismissal and 5 February 2015, when she received the show cause letter. The applicant also contended that she had considered the show cause letter and the respondent's conduct "together and separately":

had created a hostile working environment which amounted to an unlawful repudiation of her employment contract;
reflected a deliberate denial of procedural fairness and natural justice and a breach of the organisation's duty of care;
amounted to a breach of the implied duty of mutual trust and confidence; and
constituted a further deliberate and orchestrated attempt to terminate her employment contract following her successful application in IRC 52 of 2014.

The applicant subsequently proceeded in her letter to set out a multitude of criticisms, questions, complaints and allegations concerning the respondent's conduct towards her. She also contended that the respondent's action in seeking to refer her for an independent medical assessment was a breach of the NSW Premier and Cabinet policy.
The applicant considered the respondent's condition that her support person at the proposed show cause meeting should not be a person who has or may become involved in the matter was unacceptable and undermined her ability to obtain genuine support for the show cause meeting scheduled the following day.
The applicant wrote that she had no intention to resign from her position. In that regard, the applicant stated she had fought hard to preserve her employment contract as an unrepresented litigant before the Commission in February 2014 and had also attempted to utilise her paid and extended leave entitlements to mitigate the respondent's harsh, unfair and threatening conduct. However, the respondent's conduct and show cause letter had "depleted my every attempt to preserve my employment contract".
The applicant stated that the respondent's unilateral termination of her employment contract imported the idea that she was the wrongdoer and the respondent "is free from all responsibility". Further, the tone of the show cause letter reflects the respondent's unashamed preparedness to present her as the wrongdoer in circumstances where the respondent had repeatedly failed to comply with basic policy and its legal obligations.
The show cause recommendation to the respondent's CEO that the applicant was at fault for not being able to return to work was not genuine but rather, an attempt to remove her from her role. The respondent's insistence on shifting blame onto her "represents the consistent undermining of the employment relationship" and a breach of the implied duty of mutual trust and confidence.
The applicant stated that having regard to the terms of the show cause letter which she strongly objected to, "I refuse to allow it to exist on the record".
In closing her letter, the applicant stated that she had no real option but to proceed on the basis that the respondent had adopted and will continue to adopt, a course of conduct that failed to acknowledge that it had engaged in the inappropriate conduct that she had highlighted: …accordingly in the face of the Proposed Termination Letter, (I propose) to tender, by this email from home, my resignation from my position effective today, 10 February 2015. I will seek redress in relation to the repudiation of my employment contract and constructive dismissal by pursuing the matter and an account from the individuals involved publicly and externally. I reserve my rights.
The respondent's Director Workforce and Culture formally replied to the applicant's resignation letter dated 10 February 2015 in the following terms: I acknowledge and accept your resignation from your position as Bone Marrow Data Manager in the Department of Haematology effective Tuesday, 10 February 2015. NSLHD acknowledges your concerns as outlined in your letter dated Tuesday, 10 February 2015. NSLHD, however, denies these allegations and believe(s) our actions have been appropriate and correct as we have continuously attempted to work with you to address your concerns, return you to work and assist you in managing responsibilities as an employee. Any outstanding leave entitlements and monies owed will be paid into your nominated account. If you have any questions regarding this matter please contact Miss Anastasia Pavlidis …
The application was subject to conciliation and directions before Commissioner Newall on 14 April 2015. The Commissioner subsequently issued directions for arbitration with the applicant directed to file her reply on 14 July 2015.
On 8 July 2015, the respondent filed a Notice of Motion that the application be dismissed with costs on the grounds that the Commission did not have jurisdiction to hear the matter as there had been no dismissal of the applicant within the meaning of the Act.

Notice of Motion

The Notice of Motion was set down to hearing on 6 August 2015. The respondent was subsequently directed to file final submissions on 28 August 2015 subject to the availability of transcript. Similarly, the applicant was directed to file her submissions in response on 18 September 2015 with the respondent to file its reply on 25 September 2015.
The Notice of Motion sought the following orders: 1. NSWIRC Proceedings 120 of 2015 (Unfair Dismissal Proceedings) be dismissed. 2. Inas Hanna pay NSLHD's costs of the motion. 3. Such other order as the Commission sees fit in the circumstances.
The respondent pressed the following grounds and reasons in support of the Notice of Motion: 1. The applicant has no valid application before this Commission for reasons including that the Applicant's cessation of employment was by reason of her voluntary and written resignation and following extended periods of absence on leave with and without pay and not by reason of dismissal by the employer within the meaning of "dismissal" in s.83 of the Act. 2. The applicant's resignation was not 'constructive dismissal' and is not capable of disclosing, on the balance of probabilities, that her written resignation was in actuality a consequence of the actions of the respondent as a principal contributing factor leading to termination of her employment by no choice of her own. 3. The applicant has at all material times been absent from the workplace and her application does not sufficiently disclose how the alleged workplace conduct is capable of supporting alleged 'constructive dismissal' or any harsh, unreasonable or unjust dismissal action within the meaning of the Act.
The respondent contended the applicant had voluntarily resigned in circumstances where she had: 1. prolonged absences from work, including on extended periods of leave without pay; 2. submitted medical certificates indicating that she was not fit to perform the duties of her substantive position; 3. been lawfully and reasonably directed on two occasions to attend an independent medical assessment to determine her fitness to perform the inherent duties of her particular employment. However, on each occasion she refused to comply and also refused to participate in any return to work discussions; and 4. been afforded the opportunity to provide reasons as to how her employment could reasonably be continued in the circumstances, and instead the Applicant decided of her own accord to resign and confirmed her resignation in writing.
The respondent also submitted that the unfair dismissal proceedings were misconceived, frivolous, vexatious and had been instituted without reasonable cause.

Dr Christopher Ward

Dr Ward was not required for cross-examination. Dr Ward is the head of the Haematology Department at Royal North Shore Hospital.
In a statement filed on 7 July 2015, Dr Ward deposed that he assisted in the relocation of the applicant to the Kolling Building between May and November 2012. During that time, the applicant was relocated to 3 different workstations as she had clashed with the employees "sitting near her and complained about her interactions with them".
Dr Ward referred to an instance where the applicant had complained that a pair of scissors had been left on a shared desk in the Cellular Therapies Laboratory that she used. At that time, the applicant alleged that the scissors were contaminated and accordingly, she considered "the leaving of the scissors on her desk was a threat". The applicant also complained that she was being surveilled by other employees. However, when asked to make a formal complaint concerning that conduct she refused to do so and dropped the matter.
It was Dr Ward's evidence that he had witnessed a number of instances where the applicant exhibited anti-social, aggressive and intimidating behaviour towards other employees in the Kolling Building. An example of such behaviour was an instance where the applicant would ignore employees who were trying to talk to her. In that regard, the applicant responded by making statements to the effect of, "I will not talk to you, I will only communicate with you through email".
Dr Ward stated that he became the applicant's manager from June 2012. The applicant was subsequently permanently located in an office in the Kolling Building from November 2012. The applicant was initially seated in an open space area but was subsequently put in an office in response to her conduct towards other employees and the likelihood that she would clash with the employees immediately around her.
Dr Ward stated that he struggled to find an employee who was willing to share an office with the applicant as "she was generally perceived within the Department as being difficult, aggressive, and intimidating and likely to complain about innocent interactions".
Dr Ward stated that on occasions he would sometimes talk on his mobile phone in the corridor outside his office which was adjacent to the applicant's office. He denied taking a picture of the applicant on his phone at any time.
Dr Ward stated that the applicant's allegation that the IT Manager broke into her computer during November 2013 had been investigated and was found to be unsubstantiated.
Towards the end of 2013, the applicant started disappearing from the office or not attending work without notifying or seeking authorisation for her absences. Further, the applicant would not account for her whereabouts during the working day. In response, staff had been asked to monitor the applicant's timesheets and would note those occasions when she was not present for all or part of a day.
In 2013, the applicant was absent from work for two weeks and claimed that she was at a course that had been approved by Dr Chris Arthur, the former Head of the Haematology Department. However, Dr Arthur had not approved the leave in writing and the applicant refused to provide details of the course that she alleged she had attended.
The respondent required all administrative staff members to complete timesheets. However, the applicant refused to complete timesheets as required, including times when directed to do so by Dr Ward. In or around March 2014, Dr Ward recalled the following conversation with the applicant: Dr Ward: "I need you to complete your timesheets and get it to me as soon as possible". Applicant: "I will not talk to you, I will sue your organisation".
Dr Ward stated the applicant "became impossible to manage" and from early 2014, she refused to talk to him as her manager. The applicant also refused to talk to most other staff of the Haematology Department. Moreover, the applicant would only attend meetings that she considered were absolutely necessary for her job and would close the door to her office. Dr Ward stated that if he or other staff attempted to talk to the applicant she would respond with words to the effect of "I won't talk to you, I will only talk to you by email so there is a written record of what is said".
The applicant had made a number of formal complaints to the respondent during the course of 2012 and 2013. In that regard, Dr Ward stated that he was aware that Human Resources and representatives of the respondent had investigated those complaints and none had been sustained. Dr Ward referred to a complaint made by the applicant in July 2013 where she alleged ongoing discrimination and harassment. Whilst not sustained, the investigators made a number of recommendations in the report concerning some of the issues about which the applicant had complained of.
In 2013, the respondent invited expressions of interest for voluntary redundancy. The applicant applied for voluntary redundancy. Dr Ward stated that he, together with the then General Manager of the hospital and the Manager Workplace Relations, assessed her application and determined that the operational requirements of the respondent where such that the continued maintenance of the Bone Marrow Transplant Database was not sufficiently complex to justify an ongoing Health Manager Level 2 role. Accordingly, the position was benchmarked against other data management positions within the hospital and graded at Health Manager Level 1.
Shortly thereafter, her application for voluntary redundancy was accepted. However, the applicant refused the offer. Dr Ward stated that as part of the voluntary redundancy process, applicants were informed that they may be made redundant should they apply for, but subsequently refuse an offer of voluntary redundancy. Accordingly, the respondent decided to restructure the applicant's position and make her substantive position redundant.
The applicant subsequently filed an unfair dismissal application against the respondent in matter IRC 52 of 2014. During conciliation proceedings the respondent decided not to press the voluntary redundancy issue with the applicant and as stated above, a notice of discontinuance was filed.
Dr Ward stated that on 1 April 2014, he directed the applicant to attend a meeting on 7 April 2014 with Ms Pavlidis, Human Resource Consultant and himself to discuss the recommendations made by the investigators in relation to her 2012 and 2013 complaints. The applicant was absent on 7 April 2014. The applicant also failed to advise him that she would not be attending the rescheduled meeting on 14 April 2014.
On 29 May 2014, the respondent provided the applicant with an opportunity to state why she should not be disciplined for failing to attend and advise Dr Ward that she would not be attending the meeting on 7 April 2014. The respondent considered the applicant's conduct as a failure to comply with a lawful directive. Such conduct constituted a breach of the NSW Code of Conduct Policy Directive PD2012_018. The respondent was considering issuing the applicant with a stage one display warning.
Dr Ward stated the applicant had not worked for the respondent since 23 June 2014. She initially lodged a WorkCover certificate stating that she was unfit to work in the Haematology Department from 23 June to 7 July 2014. The certificate was forwarded to WorkCover late which caused a penalty notice and an improvement notice to be issued against the respondent. In that regard, Dr Ward stated these penalties were the only WorkCover penalties issued against the respondent in respect of the applicant's claim.
On 7 July 2014, the applicant submitted a further WorkCover certificate for the period 7 to 15 July 2014 by email. The applicant did not return to work on 16 July 2014 following the expiry of the certificate. Dr Ward wrote to the applicant on 18 August 2014 requesting that she contact him urgently. The applicant subsequently failed to contact him or send the respondent an updated WorkCover certificate.
Dr Ward denied the allegation that he sent threatening, intimidating or provocative letters to the applicant during her absence.
By 24 July 2014, the applicant was absent from work without a medical certificate. She had also failed to notify Dr Ward and seek authorisation for her absence. The applicant was subsequently issued with a written first stage disciplinary warning for failing to comply with the direction to attend the meetings on 7 and 14 April 2014.
A request made by the applicant in an email dated 27 July 2014 that she be allowed to use her annual leave and long service leave for the period 11 August to 7 September 2014 was rejected in correspondence dated 28 July 2014, on the grounds that she had not provided a medical certificate for her current absence or provided the respondent with evidence of any ongoing illness or injury and had failed to provide any reasons for her continued absence when the WorkCover certificate expired on 15 July 2014. Dr Ward also stated that the applicant's unexplained absence was having an effect on the Bone Marrow Transplant Service and the upkeep of the relevant database.
The applicant was directed to return to work "after 4 August 2014 as soon as she was given approval by her doctor". The applicant was told there would be no discussions concerning the annual and long service leave requests until she had returned to work and caught up with the backlog of work related to her absence.
The applicant did not respond to Dr Ward's correspondence dated 28 July 2014.
Dr Ward wrote the applicant on 18 August 2014 stating she had not been attending work and had repeatedly failed to provide relevant WorkCover certificates despite the number of requests for her to do so and her subsequent undertakings that she would comply.
Dr Ward stated that the applicant would telephone the Haematology Department either late in the evening or early morning outside standard working hours and leave messages stating that she would not be coming to work due to illness. Dr Ward's correspondence dated 28 July 2014 required the applicant to contact him within seven days. The applicant failed to respond.
On 9 December 2014, the applicant sent a medical certificate to the respondent by email certifying that she was fit to return to work provided it was in a different location. Dr Ward considered it was inappropriate to relocate the applicant on the grounds that the position required the applicant to conduct frequent one-on-one discussions with employees and the integration of multiple datasets. It would not be possible for the applicant to fulfil these requirements if she worked in a different location.
Moreover, Dr Ward stated he did not think the applicant could be trusted to work independently in a different location given her previous conduct "in disappearing from work without notice or authorisation, and refusing to fill in time sheets and account for her working time". Further, he did not believe it was practicable for the applicant to work from home. There was also no readily identifiable spare office space.
It was Dr Ward's evidence that he was not involved in the process that required the applicant to undertake an independent medical review. Nor was he involved with the issue of the show cause letter dated 5 February 2014.
Dr Ward also stated he was aware the applicant resigned from her employment on 10 February 2015. In relation to the resignation letter, Dr Ward denied engaging in any behaviour or conduct that constituted bullying and harassment towards the applicant or engaging in any conduct designed to bring about the end of her employment "at all, or in the period following the … proceedings in matter IRC 52 of 2014". Rather, it was Dr Ward's evidence that he had attempted to respond to all of the applicant's complaints and issues and, accommodate her requests where it was reasonable and appropriate to do so.
In Dr Ward's view, the applicant was a very difficult employee to manage. She was consistently obstructionist and un-cooperative. The applicant refused to comply with his directions and also refused to participate in any meaningful interactions with him. Contrary to the applicant's claims, Dr Ward considered her conduct towards other employees was unacceptable. He described that conduct as "bullying and harassing towards them". He did not witness any employee engagement with the applicant that he would consider to be bullying, harassment or surveillance of her.
There was no practical prospect that the applicant could be reinstated in either her former position or an alternative one. Dr Ward contended that the applicant's conduct and actions had "destroyed all the goodwill between herself and her colleagues…and reinstatement would disrupt the proper functioning of the Department of Haematology to the detriment of other employees, the bone marrow transplant group and the Department in general".

Ms Stacey Pavlidis

Ms Pavlidis is a Senior Workplace Consultant at Royal North Shore Hospital. Her role includes responsibility for the provision of advice and guidance and support across a broad range of workplace and human resources issues that have the capacity to impact upon the respondent's operations. Ms Pavlidis was not required for cross-examination.
Ms Pavlidis' statement was largely confirmatory of Dr Ward's written evidence.
In May 2012, the applicant raised concerns with respect to environmental issues in the work area. She contended that she was suffering health issues related to mould, air-conditioning and a roof leak in the building where she worked. The applicant was subsequently relocated to an alternate office area pending a work health and safety assessment. On 31 May 2012, the work health and safety assessment concluded there was no roof leak, nor were there any issues related to the air-conditioning which was regularly serviced and maintained. The applicant was subsequently informed of those findings.
In June 2012, the applicant made allegations concerning bullying, harassment and victimisation against "other colleagues", without specifying who she was complaining about. She refused to provide details of the allegations or attend meetings to discuss them. Follow a meeting in July 2012, the applicant agreed that she would draft a complaint and consider her options. Those complaints were subsequently set out in an email to the respondent including the then Director of Haematology, the then HR Manager and Dr Ward. A meeting was convened with the applicant on 25 July 2012 for the purpose of discussing those complaints.
The applicant provided a medical certificate dated 11 July 2012 requesting that she work in a "dust free environment without excessive air-conditioning and an average temperature". Accordingly she was relocated to the Kolling Building.
On 5 November 2012, the applicant made a complaint to the then General Manager regarding a recruitment issue. This matter was subsequently investigated by the Deputy Manager Human Resources and found to be unsubstantiated. When informed of the outcome of that investigation, the applicant made a further complaint that her identity had been disclosed with respect to the complaint raised.
The then General Manager received a further complaint from the applicant on 16 November 2012 concerning a request that she sign the updated NSW Code of Conduct, a request that had been issued to all staff. The applicant also made a number of complaints to the then Acting General Manager of Royal North Shore Hospital. However, the applicant failed to attend the arranged meeting to discuss those concerns.
The applicant made a complaint by email to the then General Manager on 8 January 2013 alleging that staff were accessing her computer. However, she refused to meet and discuss those concerns.
In January 2013, the applicant made a complaint to the Privacy Officer regarding a breach of confidentiality. A meeting to discuss this matter was arranged. However, the applicant stated that she would only respond to requests for information in writing. The applicant subsequently failed to respond to a written request for information or participate in the investigation. She later made a complaint concerning the conduct of the "investigation". Similarly, the applicant also failed to engage in the investigation process following a complaint made in May 2013.
The applicant wrote to the then General Manager on 26 July 2013 concerning allegations of ongoing discrimination and harassment by a number of staff in the Haematology Department. Shortly thereafter on 31 July 2013, she was advised that the then General Manager would respond within "a few days". In correspondence dated 6 August 2013, the then General Manager responded to the applicant's complaints made in November 2012 and January, May and July 2013. The applicant was advised that her concerns were being actioned. The correspondence also noted that she had failed to make herself available on two occasions to meet with senior management to discuss her concerns. Ms Pavlidis confirmed the respondent's subsequent investigation process as set out in Dr Ward's evidence.
Ms Pavlidis confirmed that in the event the applicant had made a public interest disclosure in 2012 to senior management as alleged, those claims would have been assessed and investigated by Internal Audit without notification. Accordingly, she failed to comprehend how the applicant could be subjected to retaliation and acts of reprisal as alleged.
On 20 October 2013, the Anti-Discrimination Board (ADB) advised the respondent that the applicant had lodged a complaint concerning disability discrimination and victimisation. On 5 May 2014, the respondent was advised that the ADB had referred the complaint to the NSW Civil and Administrative Appeals Tribunal (NCAT).
In relation to the 2013 voluntary redundancy program, Ms Pavlidis stated the respondent applied the Ministry of Health Managing Excess Staff of the NSW Health Service Policy. She also noted that the applicant's position had been assessed and graded at a Health Manager Level 1 position. Moreover, at that time, a number of other staff who had declined an offer of voluntary redundancy had their positions re-graded and restructured during in the course of 2014. The respondent's Chief Executive and Director Workforce and Culture sought to meet with the applicant concerning her alleged bullying and harassment issues in line with the recommendations made by the investigators. Despite several attempts made to meet with her, the applicant refused such requests.
Prior to being issued with a first stage disciplinary warning as a result of her refusal to meet with Dr Ward on 7 and 14 April 2014, the applicant was provided with an opportunity to respond as to why she should not be disciplined consistent with the Ministry of Health Managing Misconduct Policy.
In response to an allegation that Dr Ward had sent the applicant a particular email in or around June 2014, it was Ms Pavlidis' evidence that if the applicant was in possession of an email that had not been sent to her by one of the parties to that email, the matter potentially breached paragraph 5.11 of the respondent's "Computer Use, Email, Internet, Intranet" policy. A subsequent internal investigation by the Information Management and Technology Department found that the email had not been sent or forwarded to the applicant by Dr Ward as claimed.
Ms Pavlidis substantially confirmed the evidence of Dr Ward concerning the applicant's Workers Compensation claim.
On 9 October 2014, Ms Pavlidis wrote the applicant to advise her that she was required to notify the respondent of her inability to attend work. That correspondence sought an explanation as to why the applicant had failed to provide medical evidence to support her absence from 16 July to 16 September 2014 and, why she had not notified the respondent concerning her inability to attend work. The applicant did not respond to that request.
The applicant was again absent from work without medical evidence from 17 to 20 October 2014. The respondent was aware that there was an NCAT mediation scheduled on 20 October 2014. A formal request was subsequently made for the applicant to attend an independent medical assessment on 7 November 2014. The purpose of that assessment was to assess her fitness to work with a view to safely progressing her ultimate return to work.
The applicant wrote to the respondent on 3 November 2014 raising complaints about her employment. She also made a request that she be granted leave without pay until September 2015. The applicant failed to attend the independent medical assessment scheduled on 7 November 2014 without giving any notice.
Given that a further mediation before NCAT was scheduled on 18 December 2014, the respondent approved a period of leave without pay until 19 December 2014. Further, on 19 November, the applicant provided a WorkCover certificate for the period 21 October until 21 November 2014. She also sent an email to the respondent requesting that it not contact her.
On 14 December 2014, the applicant sought Dr Ward's approval to take annual leave from 20 December 2014 until 2 January 2015. Dr Ward subsequently advised the applicant to complete the necessary forms in accordance with standard practice.
The applicant notified NCAT on 17 December 2014 that she would no longer participate in the mediation of her claim.
Ms Pavlidis stated that she wrote to the applicant on 18 December 2014 to advise her that an appointment for an independent medical review had been made for 6 January 2015 "to assist her return to work and to ensure that she would be able to fulfil the inherent requirements of her role". It was standard practice for the respondent to obtain a full medical clearance for a return to work following extended periods of absence due to illness or injury.
The applicant submitted a WorkCover certificate dated 9 December to the respondent on 18 December 2014. That certificate stated the applicant was fit to return to work for her usual hours but only in an alternate location. Given her prolonged absence since 23 June 2014, the respondent considered the certificate did not provide sufficient detail to enable it to make an assessment concerning the type of location deemed to be suitable.
Moreover, given the limited nature of the information contained in the WorkCover certificate, the respondent was not satisfied that the applicant could return to work safely. The respondent was also concerned that the applicant may not be able to perform the inherent requirements of her role, which included that she must be based within the Haematology Department, given the certificate required her to work in an alternate location. Accordingly, Ms Pavlidis stated that she commenced monitoring "NSW Health Jobs" to establish whether the respondent could identify a suitable Data Manager Position within Royal North Shore Hospital or, an alternative location. She subsequently forwarded the details of two or three Level 2 roles to the applicant but was unaware whether she had responded to those advertisements.
On 19 December 2014, the applicant advised the respondent by email that she "awaited advice from the organisation" concerning her return to work. On 21 December 2014, the applicant sent a further email to the respondent stating that she wished to return to work the following day, 20 December 2014. She also sought a change of work location.
The applicant failed to attend the independent medical review as directed on 6 January 2015, nor did she advise the respondent that she would not be attending.
In response to the applicant's contention that it was unreasonable for her to attend at a medical assessment involving doctors employed by the respondent, it was Ms Pavlidis's evidence that the respondent employed two WorkCover accredited staff specialist medical practitioners for the purposes of rehabilitating staff and to undertake independent medical assessments to assess fitness for a return to work in consultation with the relevant nominated treating doctor. The applicant filed a further WorkCover certificate for the period 14 to 27 January 2015.
In or around January 2015, the applicant's workers compensation claim could not be determined due to her failure to comply with the insurer's claims process. Moreover, the claim was later deemed not to be work related.
Ms Pavlidis stated the respondent's Management of Non-Work Related Injuries or Health Conditions Policy stipulated such injuries should be managed within three months. Given the applicant had failed to attend medical assessments on 7 November 2014 and 6 January 2015, the respondent was unable to assess whether she was fit to perform her role and if so, how to return her to work safely. Ms Pavlidis reiterated that the applicant had only provided sporadic medical certificates and had not responded to requests to supply medical certificates covering her absence or the directions issued by the respondent, including Dr Ward, to notify her absences.
Ms Pavlidis stated that the applicant's failure to follow a direction to attend an independent medical assessment on two occasions together with her general unwillingness to participate in return to work discussions and her inability to work in a substantive role had prompted her to make a recommendation to the Chief Executive that the applicant be provided with a letter notifying her of the proposal to terminate her employment and show cause as to why termination was inappropriate. That proposal was consistent with the respondent's "Managing Misconduct Policy".
In correspondence dated 5 February 2015, a show cause letter was sent to the applicant. That letter also instructed her to attend a meeting with Human Resources on 11 February 2015 to respond to the proposed course of action and provide reasons why her employment should not be terminated. She was also invited to raise any matters in mitigation.
The applicant was informed that she could attend the meeting with a support person of her choice and that particular person could be a legal or Union representative, family member or colleague. In the event she decided not to attend the meeting, the applicant was advised that she could also respond to the show cause letter in writing.
In correspondence dated 10 February 2015, the applicant resigned her employment claiming that she had been constructively dismissed as a result of the respondent sending her the show cause letter dated 5 February 2015. On 12 February 2015, the respondent wrote to the applicant and accepted her resignation. However, the respondent denied the various concerns and allegations the applicant had made in her letter of resignation.
Ms Pavlidis contended that the applicant resigned as she "was unwilling to allow herself to be dismissed from her employment by (the respondent) and decided to resign out of a refusal to allow a dismissal to "exist on the record".

Ms Jane Florence

Ms Florence was not required for cross-examination. Ms Florence is the respondent's Rehabilitation Consultant responsible for the management of the return to work of injured employees.
On 23 June 2014, the applicant made a workers compensation claim related to "victimisation, bullying at work and harassment". Shortly thereafter, the claim was reasonably excused by the insurer on the grounds that it did not have sufficient information to make a provisional liability decision.
The insurer later advised the respondent that the applicant would not provide the required information to support her claim, nor would she participate in the insurer's factual investigation.
Contrary to assertions by the applicant, it was Ms Florence's evidence that the respondent provided her with an information pack on 3 July 2014 containing a guide to the claim process, return to work issues and relevant forms.
When contacted by the insurer on 4 July 2014, the applicant stated "she would not talk…until a liability decision had been made". She also made a threat that in the event the liability issue was not made by 5 July 2014, she would escalate her claim to WorkCover directly. When the insurer's Case Manager sought to arrange a factual investigation to obtain information from the applicant, it was alleged that the applicant "hung up".

Applicant

In a statement filed on 16 June 2015, the applicant set out almost 100 pages of attachments that she considered relevant to her claim. Amongst that material were references to the following events or documents:

the respondent's termination letter dated 5 February 2015; the applicant considered the respondent's conduct immediately prior to that correspondence represented a deliberate and orchestrated attempt to terminate her employment contract following her successful application to the IRC 13 months earlier;
in 2012, the applicant made a disclosure in relation to the NSW Health Code of Conduct (PD2012_018) and the NSW Public Interest Disclosure. In response, the applicant alleged that her identity was disclosed and she suffered acts of reprisal, threats of dismissal and discrimination;
Leave Matters for the NSW Health Service Policy Directive (PD2014_099);
Injury Management and Return to Work Policy Directive (PD2013_006);
The Government Sector Employment Act 2013 (GSE Act);
Dealing with Employee Work Related Concerns and Grievances Policy Directive (PD1996_005);
the unfair dismissal application in IRC Matter No 52 of 2014; and
a short history concerning a workers compensation claim commenced in June 2014.

The applicant also made specific reference to the respondent's letter of termination dated 5 February 2015 where she contended: 1. the respondent's statement that a medical practitioner had determined that she was unable to work in her substantive role was incorrect. Rather, the applicant considered that she was fit to continue her substantive position, but at another work location; 2. the suggestion that the only barrier to the formulation of a return to work plan was the fact that she did not attend medical appointments with a doctor employed by the respondent was incorrect; 3. the applicant's treating doctor had sought to co-operate with the respondent and formulate a return to work plan for some seven months; 4. the respondent's approach to the applicant's return to work was inconsistent with the NSW Premier and Cabinet Policy which provides medical advice should be first sought from the treating doctor; 5. the respondent should have transferred the applicant to an alternative Level 2 position; 6. the respondent failed to comply with its own guidelines related to injured workers and rehabilitation; 7. the applicant had no intention to resign from her position in February 2015 and the s 84 proceedings before the Commission during 2014 support that proposition.
The applicant contends her "resignation was not voluntary, it was not unequivocal and was caused by the termination letter dated 5 February 2015 and conduct of the respondent leading up it". The applicant sought reinstatement, re-employment or monetary compensation and damages in respect of her claim related to alleged pain and suffering as pressed before NCAT.
The applicant was highly critical of the alleged roles played by Dr Ward and Ms Pavlidis in relation to the management of her workers compensation claim, subsequent alleged victimisation, bullying and harassment and, the respondent's alleged non-compliance with NSW Health policies and procedures. As she stated in her resignation letter: …I have no real option but to proceed on the basis that the organisation has adopted and will continue a course of conduct that does not acknowledge any of its inappropriate conduct addressed above and, accordingly in the face of the Termination Letter, to tender, by this email from home, my resignation from my position effective today, 10 February 2015.
In cross-examination, the applicant confirmed that in the proceedings related to IRC 52 of 2014 in February 2014, she had alleged constructive dismissal and had also sought a remedy for pain, hurt and suffering, rather than the primary remedy of reinstatement. The applicant also confirmed that in those proceedings, she had received a lot of advice from family and friends including her support person, Ms Elizabeth Sarofim, a qualified solicitor who also acted for her in an agent capacity.
The applicant confirmed that in or around August 2014, she informed the respondent not to contact her. She also confirmed that Ms Sarofim wrote to the respondent at that time on her behalf.
In relation to the February 2014 Commission proceedings, the applicant agreed that she had submitted an expression of interest for voluntary redundancy. She agreed that the expression document stated "if you do not respond within 14 days, it is taken as a choice to decline". However, she later changed her mind. The applicant considered the decision to make her position redundant was not genuine. She ultimately decided to reject any offer of voluntary redundancy because she wanted to remain in her position.
The applicant agreed that in February 2014 proceedings, she had claimed constructive dismissal as well as threatened dismissal. The applicant also agreed that the alleged threatening, bullying and discriminatory behaviour of the respondent, which she described as harsh, unjust and unreasonable and, the fact that it had not adhered to "due process", were subject to the February 2014 proceedings and were also being pressed in this matter.
The applicant considered conciliation during the February 2014 proceedings was successful in removing the threat of a forced redundancy. However, she refused to acknowledge that she had not been dismissed at that time. Nor would she agree that she had taken steps to discontinue those proceedings.
In relation to the current proceedings, the applicant agreed that in terms of remedy, she was similarly seeking compensation for pain and suffering and the effects the dismissal has had on her family. She was also seeking remedy in terms of reinstatement, reemployment or monetary compensation. The following exchange ensued: Respondent: Is it your case that since 10 February 2015 your employment was terminated? Applicant: I was threatened to be terminated. Respondent: No, no? Applicant: I received a letter-- Respondent: You're not answering my question? Applicant: --saying "We recommend you would terminated you"-- Commissioner: I think, Miss Hanna, you just need to listen carefully to Mr Gardner's question and then just answer it. And you might just go a bit slower. Respondent: My question is is it your case, Miss Hanna, that from 10 February 2015 your employment terminated? Putting aside whether you resigned or not, do you accept that your employment terminated? I just want to know that? Applicant: I personally don't accept that.
The applicant refused to acknowledge that when she refused the offer of voluntary redundancy in 2014 that should have been "the end of the matter".
The applicant considered that her s 90 undertaking given at the request of Commissioner Newall in these proceedings did not prevent her from pressing a related constructive dismissal claim before the ADB or NCAT. Nor did she consider such conduct on her behalf, including the filing of an amended Points of Claim for NCAT, could be interpreted as deliberately misleading the Commission.
The applicant stated her NCAT proceedings were filed on her behalf by a relative on 27 February 2015. After some robust questioning, the applicant reluctantly admitted that in proceedings before Commissioner Newall on 3 March 2015, she signed a s 90 undertaking when at that time, she knew that six days prior she had lodged an application with NCAT.
It was the applicant's evidence that she was not aware of the requirement under s 96(2) of the ADA that leave was required to press allegations concerning constructive dismissal. The applicant agreed that in proceedings before Commissioner Newall, she "let him believe that I will not pursue the unfair dismissal before the Anti-Discrimination Act or the President or NCAT". Notwithstanding that response, the applicant was adamant that in all her dealings with the ADB and NCAT, she had not set out to deliberately mislead the Commission.
In relation to her claims that certain unnamed work colleagues were causing her grief, the applicant admitted that she had received assistance from family and friends to draft some of those complaints, such as her claim that "(they are) seeking to smear my reputation with salacious allegations". The applicant's response when questioned why she did not particularise her allegations was "because I have been complaining all the time. It doesn't make a difference what I write or what I say".
In relation to her complaints concerning the air-conditioning in her office, the applicant considered Ms Pavlidis' evidence that the air-conditioning system was not at fault and the environmental audit was inconclusive misleading.
The applicant did not consider her request to take extensive unpaid leave from January until mid-September 2015 was unreasonable.
The applicant did not consider that in alleging some very serious complaints concerning bullying, harassment and victimisation by work colleagues, that she was required to provide relevant details and participate in any subsequent investigation conducted by the respondent. In fact, the applicant appeared to hold the view that she could raise all sorts of complaints with the respondent but was not compelled to do much more. In short, the evidence in cross-examination suggests that the applicant considered the respondent was conspiring against her on a number of work-related fronts as comprehensively set out in her extensive written evidence.
The applicant's evidence concerning her Workers Compensation claim was that she considered she had complied with the respondent's requirements and the issues squarely put against her by the respondent was a form of bullying and harassment and not in response to her non-compliance with the respondent's relevant policies and directions.
The applicant considered the respondent's requirement that she be independently assessed by a Royal North Shore Hospital doctor to determine her fitness to safely return to work was an unreasonable impost. Notwithstanding that view, the applicant considered that the respondent's allegations that she had been unwilling to participate in return to work discussions were not true.
The applicant also considered the respondent's management of her Workers Compensation claim was inconsistent with the various policies and procedures that apply within the Ministry of Health and the respondent's operations. Given her apparent extensive knowledge of those policies and procedures, the applicant confirmed she did not seek to take up the respondent's invitation to meet on 11 February 2015 because: I was going to go, and I was going to be issued with termination. It is a recommendation Sir.
The applicant agreed that she had accepted the alternative offer put in the show cause letter that she could respond in writing rather than meet with the respondent face-to-face. The applicant stated that she directed her written response to a number of people including the Secretary of the Ministry of Health, "because my case is with these people".
The applicant stated that she had typed the show cause response and her family, but not Ms Sarofim, had reviewed it: Respondent: So you must have talked to them about what you were intending to do, did you? Applicant: Yes, and I said I am not resigning, they are forcing me for termination, so I have to put the reason, I am putting this, non-voluntary and non-equivocal resignation. It just, and I even highlighted why. Where did you do the wrong thing? Where did you breach the law? Where did you breach the Act? Why you didn't follow the process. And then I put-- Respondent: So you thought it through very carefully, didn't you, and you've used words such as constructive dismissal, so you understand what that means, do you? Applicant: It's obviously the conduct of the organisation is like clear constructive dismissal. Respondent: And when you mention unilateral termination, is that a legal concept you understand, or did somebody write that for you? Applicant: It's unilateral; we are two party, so we are in contract, so one of us terminating and one of us threatening other one. Respondent: Well, that's a pretty clear understanding of an area of law isn't it? So you understand perfectly what that means. Applicant: Well, I'm not just ignorant person. I have some, a couple of degrees, university degrees. Respondent: Yes, I understand that. But, you know, you've said a number of times this morning you're self-represented and not a lawyer; however, it looks as though you did get some advice, or you did some research before you wrote the letter. Applicant: I do research all the time. That's how I knew about the cases of NCAT, about you, that's how I knew about the person who attacked her boss. It's the media, it's the internet, it's available for everyone. It's in the public arena.
The applicant recalled that she thought she had written her show cause response over one day or thereabouts and her family or friends made no changes other than to correct grammar or spelling errors. The applicant denied a suggestion that she wanted "to get in first" rather than the respondent making a decision to dismiss her. The following exchange ensued: Respondent: Well, you're saying here, to allow the organisation to terminate you would be grossly misleading. You said that? Applicant: It is grossly misleading. Respondent: So you decided, "I will not allow them to do that, I'm going to resign first". Applicant: No. I have to resign because I have to protect my reputation, I have to protect my rights to proceed to the Commission, because you, sir, wouldn't mind one bit to put anyone who annoys you in the prohibitive registry.
The applicant subsequently explained that by reference to the phrase, "you sir", she was referring to the respondent. With reference to her statement, "I have no real option but to proceed on the basis that the organisation has adopted and will continue a course of conduct", the applicant said she considered the respondent had not acknowledged any inappropriate conduct as alleged.
With reference to her statement, "My resignation from my position effective today, 10 February", the applicant stated the following: It is a resignation. It is to highlight the conduct of the organisation. To say, you are sending threatening- not threatening- you recommend termination. It's a recommendation, it's not a suggestion. It is a recommendation. So its either, I will wait until I am terminated, or I'll resign and go to the industrial relations commission as I put it.
The applicant subsequently denied the suggestion that she really wanted to make the decision first and resign, rather than wait for the respondent to terminate her.
The applicant failed to give any consideration in a cross-examination to the options that were available to her to suggest at either the planned show cause meeting or in writing, that she should not be dismissed. In that regard, she was dismissive of suggestions that she could have told the respondent that she disagreed with its contentions or that she now agreed to attend a medical assessment or, suggested an alternate doctor to undertake that assessment. The applicant also denied that a reason for her resignation was that she made a number of serious allegations against staff.
The applicant strongly denied the respondent's contention that her reference to the phrase, "I refused to allow it to exist on the record" simply meant, "I'm not allowing you to specify any reasons for termination". The applicant also confirmed that in the period since 10 February 2015 she had not sought to withdraw her resignation.

Respondent

As I have also noted below, I have considered the very extensive submissions of both the respondent and applicant very closely. However, I do not propose to summarise those materials in any forensic detail.
The respondent considered the applicant had misled the Commission. At the time she filed the required s90 undertaking on 3 March 2015, the applicant had during the week prior filed a very detailed Points of Claim document with NCAT, where under the heading "Constructive Dismissal", she set out the events in the Points of Claim document commencing in May 2014, detailing the period commencing with her leave in 2014 through to her resignation on 10 February 2015; her request for extended leave without pay from in or around January to September 2015; the requirement of the respondent that she attend an independent fitness for work assessment; and the respondent's letter to the applicant of 5 February 2015, inviting her to attend a meeting on 11 February to show cause why a recommendation to terminate her employment should not be actioned.
The respondent strongly denied the applicant's allegations and submitted there was no valid application before the Commission for the following reasons: 1. the applicant's cessation of employment was by reason of her voluntary and written resignation which followed extended periods of absence on leave, with and without pay and not by reason of dismissal by the employer within the meaning of the Act; 2. the applicant had not served a written undertaking as required by s 90(b) of the Act; 3. in addition to the remedies of reinstatement or re-employment, the applicant seeks compensation for "pain and suffering" damages in relation to alleged "effects on my family, stress and abuse, uncertainty and trauma endured"; 4. the applicant had filed Points of Claim in NCAT in matter No. 1410232 and under the Anti-Discrimination Act 1997 (NSW) (the ADA); 5. the respondent contended that the applicant's resignation was not a constructive dismissal. Moreover, the applicant's resignation was not capable of disclosing, on the balance of probabilities, that her resignation was in actuality a consequence of the respondent's actions as a principal concluding factor leading to termination of her employment "by no choice of her own"; and 6. the applicant was at all material times absent from the workplace immediately prior to her alleged dismissal.
The respondent submitted an employee may in certain circumstances hold the genuine belief that they had no choice but to resign. However, the correct test concerns the actions or conduct of the employer. In Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187 at 96, the Commission observed …it needs to be stressed that notwithstanding the fact that an employee may hold a genuine belief that he/she had been forced to resign, such a contention is not the test of a constructive dismissal. The correct test is whether by the actions or inactions of the employer, it was the effective initiator of the termination of employment. I return then to the facts and circumstances of this case.
It was the respondent's case that the applicant voluntarily resigned in circumstances where: 1. she had prolonged absences from work, including extended periods of leave without pay; 2. the applicant had submitted medical certificates indicating that she was not fit to perform the duties of her substantive position; 3. the applicant had been lawfully and reasonably directed on two occasions to attend to an independent medical assessment to determine her fitness to perform the inherent requirements and duties of her position. However, on each occasion, the applicant had refused to comply and also refused to participate in any return to work discussions; and 4. the applicant was given the opportunity to provide reasons as to how her employment could reasonably be continued in the circumstances. Instead, she decided of her own accord to resign and confirm that resignation in writing.
The respondent confirmed that in early 2012, the applicant raised concerns regarding her health allegedly caused by her workplace environment. In that regard, arrangements were made to move the applicant to an alternate office and, later to an office in an adjacent building pending a workplace health and safety environmental assessment. That assessment subsequently indicated "the roof has no leaks… The air-conditioning system is regularly maintained and is supported with breakdown maintenance".
The results of the workplace assessment were subsequently provided to the applicant to ensure that she was aware of the respondent's efforts to address her concerns.
The applicant raised a number of email complaints with the then General Manager during 2013. However, on each occasion when the then General Manager attempted to meet with the applicant to discuss her concerns, she refused to attend or failed to present at scheduled meetings.
The then General Manager subsequently requested a review of the complaints made by the applicant and on multiple occasions, she refused to participate in that review other than by forwarding email correspondence to the relevant investigators. The outcome of that review established that the applicant's concerns could not be substantiated.
In September 2013, the applicant lodged a complaint with the ADB alleging disability discrimination in employment. In that regard, the respondent's position was that the complaint ostensibly concerned her disagreement with the investigation outcome related to her work environment concerns.
In December 2013, the applicant applied for and was approved for voluntary redundancy. However, she did not reply to the offer of voluntary redundancy. The applicant, together with a number of other employees, was to be managed subject to the Managing Access Staff of the Health Service Policy Directive as her department was poised for a restructure. As a consequence, the applicant filed the unfair dismissal claim in matter number IRC 52 of 2014. A conciliation conference was convened on 26 March 2014 and shortly thereafter, the applicant discontinued those proceedings.
In May 2014, the respondent received notification that the applicant's complaint with the ADB had been referred to NCAT. At that time, the respondent had not sought leave under section 96(2) of the ADA to proceed before NCAT on issues directly related and subject to these proceedings.
The applicant submitted WorkCover certificates indicating that she was totally unfit for work from 22 June until 15 July 2014 and has alleged she was suffering from panic attacks, anxiety and depression. The respondent attempted to contact the applicant concerning her absence and on occasions left her voicemail message with the relevant contact details. Shortly thereafter, the respondent's insurer advised the applicant that her claim had been "reasonably excused" because it was unable to communicate with her and there was insufficient information to enable it to proceed with the claim.
On 18 August 2014, the applicant was sent a letter requesting that she contact her manager regarding her intentions to return to work as she had been absent since 23 June 2014, had not made contact since 3 August 2014 nor had she provided any further WorkCover certificates.
The applicant subsequently remained on leave without pay until 19 December 2014. The respondent contends this leave was granted in good faith for reasons including to enable the applicant to attend to her NCAT proceedings.
The applicant sent an email to the respondent on 17 December 2014 to advise that she was withdrawing from the NCAT proceedings.
The respondent acknowledged that it had granted the applicant annual leave until 5 January 2015 on the condition that she attended an independent medical assessment appointment on 6 January 2015. Following that appointment, the respondent would give consideration to the applicant's request to take further paid and unpaid leave.
The applicant failed to attend the medical assessment appointment on 6 January 2015 as directed by the respondent and instead sent an email to the respondent on 6 January 2015 making a number of accusations which were subsequently denied by the respondent. That email also sought approval for a further period of extended leave on the following terms: I make my further and final request for my leave without pay until 30/09/2015 to be considered and I will comply with lawful direction only. The organisation has been deliberately and repeatedly, ruthlessly trying to cause me and my family the maximum harm can undermine me. I will seek order.
In correspondence dated 5 February 2015, the respondent notified the applicant that her application for leave until 30 September 2015 had been declined. That correspondence also placed the applicant on notice that the respondent was contemplating terminating her employment on one month's salary in lieu of notice for reasons including her failure to attend the directed medical appointments and her refusal to participate in return to work discussions. The applicant was invited to provide reasons why the respondent should not take the proposed action and provide any mitigating factors or other information to be considered by the respondent before deciding on the proposed action.
The applicant's resignation letter sent to the respondent by email on 11 February 2015 contained additional allegations concerning the respondent. However, the applicant concluded that letter by confirming: …resignation from my position effective today, 10 February 2015.
The respondent subsequently accepted the applicant's resignation effective 10 February 2015.

Applicant

As I have already indicated above, I have considered the submissions of the applicant and the respondent very closely. However, with regard to the extent and expanse of those submissions, I do not propose to summarise them in detail. That said, the applicant submitted that the Notice of Motion should be dismissed based on five inter-related points of law.
The applicant submitted that where an employee has resigned and an allegation of constructive dismissal is made, the relevant test as to whether there was a "dismissal" was well established by the authorities. It is whether the conduct of the employer has contributed to the resignation such that it had the probable result of bringing the employment relationship to an end: O'Meara v Stanley Works Pty Ltd - PR973462 [2006] AIRCFB 496 at [23] and the resignation was not a true manifestation of the personal autonomy of the employee: State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 at 407-408 per Spigelman CJ.
The applicant submitted that the respondent's pack culture of over-zealous oppressive managing of her and the unfair brandishing of her as a trouble maker throughout the last few months of her employment culminated in the respondent's letter proposing to terminate her employment.
The applicant referred to the decision in NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123 at 58 - 60 to support the proposition that in situations where an employee is faced with the option of termination or resignation, an employee really has no option but to resign. That case concerned an employee who had been placed on what is known as the "Service Check Register", which may severely impede future employment within the Public Health Sector. Drawing on that case, the applicant stated that she was 55 years of age and a qualified Health Information Manager, which required her to work within NSW Health.
Accordingly, the applicant, in her letter of resignation, directly referred to the need to protect her future position and not have a termination on the record.
The applicant sought to rely upon a number of Federal authorities including Birrell v Australian National Airlines Commission (1984) 9 IR 101; Achal v Electrolux (1993) 50 IR 236 and Ngo v Link Printing Pty Ltd (1999) 94 IR 375 to support the proposition as to why she did not withdraw her resignation. Further, the applicant considered that the withdrawal of her notice of resignation: …would not have prevented the very vice that the resignation itself was intended to forestall, namely, termination and consequences of that being on the record in circumstances where the applicant believed it would not have been unjustified termination
The applicant considered that in circumstances where an employer who has not complied with internal rules makes a threat of dismissal, as was the case in Ferry and Broken Hill Town Employees Union [2005] NSWIRComm 358, an employee has limited options open to them to save their position. The applicant submitted that in threatening her employment for failing to attend work, the respondent had in fact failed to comply with a number of policies and laws related to her return to work and requirements to attend an independent medical assessment.
The applicant contended that in circumstances where an employer is not satisfied with the opinion of the treating doctor as to the fitness for duty of one of its employees and chooses instead to direct the employee to attend a medical assessment prior to return to work, the applicant contended the Government Sector Employment Regulation 2014 provides: ...all such medical assessments must be carried out by the nominated assessors only.
The applicant contended that unfairness and harshness is likely to be created in situations where the advice of a treating doctor is ignored and an employee is instead sent for a medical assessment to be conducted by the respondent's own doctor. In that regard the applicant referred to CFMEU (on behalf of Laming) v Northern Sydney Area Health Service [2004] NSWIRComm 251 to support the proposition that it is the respondent who bears the onus of showing there was no "dismissal".
The applicant submissions also included the following paragraphs: Why the applicant chose to resign: the serious consequences of a termination on the record 41. As the applicant stated in her letter of resignation, being terminated by any division of the Ministry of Health leaves open for that division to record the terminated employee on the register of terminated employees. Being on that register means that the individual is red flagged each time they apply for another role across the Ministry. The IRC has in the past indicated that it cannot make a respondent remove any employee's name off the register even if the dismissal was found to be harsh, unfair or unreasonable: NSW Health Services Northern Sydney Local Health District v Hargreaves [2012] NSWIRComm 123. 42. The true position is that the respondent's actions contributed to the applicant's resignation in fact and accordingly at law, was a constructive dismissal. Had the applicant had a better understanding of the process before the IRC, it would have sought to cross-examine the respondent's deponents and will do so at the next available opportunity.
The balance of the applicant submissions dealt largely with the history of the matter, particularly the respondent's alleged failure to respond adequately to the concerns she considered had been raised frequently in relation to her employment, her workers compensation claim, her absences on paid and unpaid leave, the refusal to grant further unpaid leave, the refusal to involve her treating doctor and the respondent's misleading account of events. Consistent within that framework was the allegation that the respondent had not acted appropriately and, against that backdrop, she had no alternative but to resign her employment in an atmosphere "which prejudiced the applicant's position".

Consideration and Finding

At the outset, there is absolutely no evidence before the Commission to support the proposition that the applicant was not a competent and diligent information manager prior to the call for voluntary redundancy and the subsequent proceedings in IRC 52 of 2014.
The applicant considers that she has been constructively dismissed. To satisfy the jurisdictional requirements of the Act and confirm that her application pursuant to s 84 of the Act is competent, the applicant is required to prove that on the balance of probability she was dismissed at the respondent's initiative, that is, the actions of the respondent must be the principal contributing factor which led to the termination of the employment relationship.
Dismissal is not defined under the Act. In Smith v Director-General of School Education [1993] NSWIRComm, the Full Court of the Industrial Court determined that a dismissal occurs when an employee is "sent away or removed" from employment by the employer.
An important consideration in circumstances where allegations of constructive dismissal are raised is whether there was some action on the part of the respondent intended to, or with the probable result, of bringing the employment relationship to an end.
It is both obvious and not unusual for an employer to require that where an employee has raised a particular grievance, that employee should be required to participate in the investigation process so as to allow it to be concluded in a timely manner. It is also appropriate that management seeks to identify and resolve grievances or for that matter, performance issues with employees at the earliest time. On the material before the Commission, it is clear that the respondent's grievance process allows an employee to lodge a grievance and have it investigated and determined in a timely manner.
The applicant's decision not to engage herself in the grievance procedure following the making of a complaint is not enough in my view to warrant a conclusion that the respondent acted against her with an intention of bringing the employment relationship to an end.
It is also not unusual that employees at times will be dissatisfied with their work environment. It is a fact of life that employees who are dissatisfied with their work resign from their employment voluntarily on a regular basis. The very fact that they were not satisfied with their work environment or decisions made by management from time to time does not mean they were constructively dismissed, nor that the actions of the employer when viewed objectively leave them with no choice but to resign their employment.
In this matter, the fact that the applicant felt that she had no real choice but to resign her employment on the grounds that ultimately, she did not want a dismissal to sit within her employment record, does not mean that the actions of the respondent were intended to force that resignation. Rather, on the evidence before the Commission, I am comfortably satisfied it was the applicant's own actions on 10 February 2015 that brought her employment with the respondent to an end.
There was no request at any time by the applicant to rescind her resignation. Accordingly, this is not a case where a resignation can be said to have occurred in the heat of the moment. In such circumstances, if withdrawn without delay, the resignation could be held to be ineffective in the termination of employment: Ngo supra. Moreover, the applicant's resignation cannot be viewed as an ostensible act of termination on the grounds it was in effect, a response on the part of the respondent that a resignation be forthcoming or in the alternative, conduct by the respondent to compel or unduly influence her to resign. Such factors are implicit in the doctrine of constructive dismissal.
In some circumstances, where an employment contract is brought to an end as a result of the employee's resignation, the termination may nevertheless be regarded as dismissal at the employer's initiative.
In Allison v Bega Valley Council [1995] NSWIRComm 175, the Full Bench stated: 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? (emphasis added) 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. (my emphasis)
The applicant has sought to characterise her alleged constructive dismissal on the grounds that there were "multiple and deliberate attempts by the organisation to constructively dismiss me". This was a consistent theme of her case and the applicant considered she had resisted all attempts to force resignation on her.
The applicant also considered the respondent's conduct was the subject of vigorous challenge by her in the earlier IRC 52 of 2014 proceedings. The applicant considered she was not at fault and should not be considered at fault for not returning to work or complying with return to work and independent medical assessment directives. The applicant also considered it was unjust that the respondent did not grant the extensive period of leave without pay as requested in December 2014 and January 2015.
On the evidence, it appears to me that the applicant is dismissive of the fact that the respondent had sought to make her accountable for many of the grievances that she has put against it. Moreover, she could not accept that she was to blame in part or in full for many of the issues that were the subject of her multiple grievances and related behaviour.
Ultimately, the applicant considered that to allow the respondent to rely on the reasons set out in the show cause letter, particularly the reasons related to her non-return to work and non-compliance with the required independent medical assessment, as reasons for it to initiate termination would be "grossly misleading". Accordingly, she refused "to allow it to exist on the record" and chose to protect her reputation and resign voluntarily.
The respondent formally objected to much of the materials filed by the applicant to support her claim on the grounds that it was riddled with unsubstantiated opinion and in many respects was lacking in logic or rational acceptance of facts to the contrary. The Commission agrees with that proposition. The evidence and the supporting materials filed by the applicant in this matter are absent the factual account of the events that she complains of and instead, is punctuated with strong personal opinion, vindictive argument and unsubstantiated propositions to support her claims against the respondent.
The applicant did not require the respondent's witnesses for cross-examination, despite submitting in her filed reply that their evidence was "false and misleading". The Commission notes that the respondent's witnesses were available and present for cross-examination on the day of a hearing.
I have considered the witness evidence of both the applicant and respondent and against a backdrop I find the evidence of Dr Ward, Ms Pavlidis and Ms Florence provides a factual and logical account of the concerns the respondent encountered in taking the lawful steps necessary, consistent with established policies and procedures, to return the applicant to work in a safe environment after her long absence.
While it was open for the applicant to be in denial concerning the factual reality of her circumstances, I do not find the respondent's witness evidence to be false or misleading. Rather, I find the evidence of the applicant lacks credibility and no amount of theatre, obstinate refusal to answer direct questions and her regular outbursts in cross-examination when things were not going her way persuades me to determine otherwise.
As I stated at the outset, there is no evidence before the Commission to suggest that the applicant was not a diligent data manager. She was experienced, possessed at least two degrees and had practised dentistry in Egypt.
Based on the material before the Commission, it would appear that the period immediately following the offer of voluntary redundancy and the proceedings in IRC 52 of 2014 has triggered a pattern of conduct, characterised objectively, where the applicant on the evidence, including her own evidence, has embarked upon a course of behaviour where she makes a litany of serious and unsubstantiated allegations and/or complaints concerning staff members, the work environment, the independence of medical practitioners, the workers compensation claim process, the unreasonableness of not approving extended periods of unpaid leave and the like.
Importantly, the applicant also embarked upon a course of behaviour where she continued to refuse to comply with a series of lawful and reasonable directions to, provide medical evidence to support her workplace absence, return to work, meet to discuss that return to work or genuinely participate in the respondent's return to work programme.
Moreover, no medical certificate was provided for the period 18 July 2014 to 15 September 2015. The applicant was then issued with a written first stage disciplinary warning for not obeying a lawful directive to attend the scheduled meeting with Dr Ward on 7 and 14 April 2014. Despite that warning, the applicant was again absent from work from 17 to 20 October 2014 without substantiating her reasons for that absence.
A week later on 29 October 2014, the applicant was directed to attend an independent medical assessment on 7 November 2014 to assess her fitness to work with a view to returning her to work. She subsequently failed to attend without notifying anyone that she would not be attending. The applicant further failed to attend the assessment rescheduled on 6 January 2015.
The applicant considers the respondent's rejection of her further application for unpaid leave at short notice in late December 2014, this time for some nine months was unreasonable and indicative of the respondent's conduct against her. In my view, the applicant refused to provide good and cogent reasons why this substantial period of leave was required. The respondent's decision in such circumstances was not unreasonable, particularly bearing in mind the requirements of the Bone Marrow Transplant Unit.
I also consider that the applicant has misled the Commission by filing her signed s 90 undertaking on 3 March 2015 in circumstances where in the week prior, she had filed a very detailed Points of Claim document seeking remedies before NCAT. That Undertaking was not to proceed for redress under, or seek an inquiry under the Anti-Discrimination Act 1977 relating to her alleged dismissal on 10 February 2015. As the respondent submitted: ...under the heading "Constructive Dismissal",she detailed events in the Points of Claim document commencing in May 2014, detailing the period of leave in 2014 to her resignation on 10 February 2015; her request for extended leave without pay to September 2015; the requirement of the respondent that she attend a fitness for work assessment; and the respondent's letter to the applicant of 5 February 2015, inviting her to attend a meeting on 11 February to show cause why a recommendation to terminate her employment should not be actioned. In her cross-examination, the applicant contended she had not misled the Commission concerning her undertakings.
The correct enquiry for the Commission is whether or not there was a termination of the applicant's employment at the initiative of the respondent characterised as a constructive dismissal initiated by the employer, as described in Allison v Bega Valley Council.
It was the applicant's case that from late June 2014 until her resignation on 10 February 2015, the respondent engaged in a sustained and continued pattern of conduct that left her no realistic option but to resign from her position.
Factors which support the proposition that the applicant's employment was not terminated at the initiative of the respondent and rather, she resigned her employment at her own volition, include the following circumstances: 1. There was no probative evidence before the Commission that in the period up to June 2014, the applicant was bullied, harassed and treated harshly and unjustly as alleged while at work causing her significant psychological distress. 2. There is evidence before the Commission from the respondent's witnesses that depicts the attempts made to meet with the applicant, investigate her complaints - with and without her participation, and return her back to the workplace in a safe manner, consistent with the relevant policies and procedures. 3. The respondent had afforded the applicant lengthy extended leave without pay from 2014. 4. The applicant refused to participate in return to work discussions. 5. The respondent had a duty of care to all employees and it was against that backdrop that it sought to have the applicant independently medically assessed concerning her fitness to return to work.
Notwithstanding the stated directions of the respondent, the applicant refused point blank to attend the independent medical assessments proposed in November 2014 and January 2015.
In response to the applicant's pattern of conduct, the respondent wrote to her on 5 January 2015 to formally advise that her request for unpaid leave until September 2015 had been denied. The applicant was subsequently advised that it was proposed that a recommendation be made to the respondent's Chief Executive that her employment contract be terminated. She was invited to "show cause" and provide reasons why her employment should not be terminated and attend a meeting with the respondent on 11 February 2015 or, in the alternative, respond in writing.
Clearly, as at 5 January 2015, the respondent had not made any decision to terminate the applicant. What was being considered at that time was no more than a "proposal". However, rather than take up the respondent's offer to provide her reasons during the course of a meeting or in writing within the required timeframe that she ought not be dismissed, the applicant elected instead to write to the respondent on 10 February 2015 electing to resign from her position.
There were, of course, a number of alternative options available for her consideration, the most obvious being a positive commitment to participate in return to work discussions or, a suggestion that an alternative agreed doctor be nominated to undertake the required independent medical assessment that had caused her so much angst.
The applicant's letter of resignation was reviewed at the time by family and friends. However, the circumstances of that review do not suggest that her proposal to resign was in any way a "heat of the moment" decision. Rather, it supports the proposition that it was more probable than not that she resigned at her own initiative for the personal reasons stated in her cross-examination.
There is no evidence before the Commission to show that the applicant was invited, encouraged, requested, coerced or otherwise told to tender her resignation by the respondent either before or after she received the show cause letter dated 5 February 2015.
The applicant has misunderstood the purpose of the show cause letter dated 5 February 2014. It was not a fait accompli. Rather, it was an opportunity to give the applicant advance notice of the material upon which the respondent intended to rely upon and afford her an opportunity to consider that material and provide her response.
I also determine that the applicant has been afforded procedural fairness and a "fair go all round".
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 conscious decision to resign from her position voluntarily. It follows that the Commission does not have jurisdiction to intervene in this matter.
The Motion is granted and I am satisfied that the following order sought in the notice of motion should be made.

ORDERS

The Commission orders that: 1. NSWIRC Proceedings 120 of 2015 be dismissed for want of jurisdiction; and 2. The matter of costs should be the subject of a separate application. J D Stanton Commissioner

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: 22 June 2016

Anti-Discrimination Act 1997(NSW)

[1995] NSWIRComm 175

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