Hollingsworth v Commissioner of Police

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: SAMS DP

Application by Ceylan Goren re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996

1 This is an application, pursuant to Pt 6 ch 2 of the Industrial Relations Act 1996 ("the Act"), filed by Ms Ceylan Goren ("the applicant") seeking compensatory relief in respect to her alleged unfair dismissal by Linkware Australia Pty Ltd ("the respondent") on 14 December 2001.

2 Conciliation proceedings before the Commission were listed on 1 March 2002. Both parties were unrepresented. No settlement of the claim was able to be reached. Accordingly, the Commission made a finding of unsuccessful conciliation pursuant to s87 of the Act, and issued directions in preparation for the arbitration of the claim.

3 These directions were subsequently amended and new dates set for the hearing after a misunderstanding by the respondent of when the matter was listed for hearing.

4 The Commission notes that much of the evidence filed in this matter relates to the applicant's allegations of sexual harassment against other staff members. These allegations have also been formally made in proceedings in the Human Rights and Equal Opportunity Commission (FA/2011982, 10 May 2002).

5 The applicant commenced employment as a secretary/administrative assistant on 20 June 2001. She had been introduced to the respondent by a school friend, Ms Vjolca Dedinja who also worked for the respondent. During her six months of employment the applicant received two wage increases. The applicant said that, at no time during her employment with the respondent, was she ever informed that her performance was inadequate.

6 At some point during her employment the applicant's friendship with Ms Dedinja soured. On 14 December 2001, the respondent's managing director, Mr Ray Sfeir told the applicant to work out her differences with Ms Dedinja. She said that she didn't have any problem with her. Mr Sfeir said "Are you refusing?" to which the applicant replied "yes". The applicant claimed that Mr Sfeir then told her to leave. She understood this to mean that she had been dismissed.

7 On 17 December 2001, the applicant's father attended the respondent's premises to collect the applicant's outstanding entitlements. He signed a release form in which the applicant was said to have "resigned in willingness and awareness".

8 The applicant secured alternative employment on 29 January 2002.

9 To understand the basis of the applicant's claim to have been constructively dismissed, it is necessary to examine the conflicting evidence of a number of incidents which the applicant claims constituted emotional stress and sexual harassment. She said that the sexual harassment started on her first day of work.

10 The applicant said that in September 2001 Mr Hong, a senior company executive, kissed her on the lips without her consent. She said she immediately pulled away from him and was very upset. When Mr Sfeir and Ms Dedinja returned later that day from a business trip to Brisbane, the applicant complained to Mr Sfeir about Mr Hong. Mr Sfeir deposed that he actually returned three days earlier than Ms Dedinja.

11 The applicant said when she spoke to Mr Sfeir she was in tears. However, Mr Sfeir did nothing about the matter. The applicant later told Mr Hong she felt ashamed and upset by what had happened.

12 Mr Hong's evidence was that before a trip to China, Ms Dedinja had asked him to bring her back a gift. Although the applicant had not asked him for a gift, Mr Hong bought perfume for both Ms Dedinja and the applicant. On his return, Ms Dedinja kissed Mr Hong in thanks and the applicant said "what about me?" He said he kissed her on the cheek. The applicant said it was Mr Hong who asked her for a kiss for the gift and she refused. However, Mr Sfeir and Ms Dedinja insisted that it would be rude not to. But she still refused. Ms Dedinja said the applicant complained to her after this incident. Ms Dedinja and Mr Sfeir were present and corroborated Mr Hong's version of the incident.

13 The applicant claimed that this was a completely different incident. There was another occasion when Mr Hong had kissed her on the lips.

Mr Hong insisted there was only one incident. He strenuously denied the other incident deposed to by the applicant.

14 Mr Hong's evidence was that he had witnessed the applicant drinking alcohol in the office after work. Mr Hong said the applicant often drove company vehicles, although at the time he was not aware she didn't have a drivers licence. The applicant acknowledged she drove without a licence.

15 The applicant alleged that Mr Sfeir would continually make unwanted advances to her and constantly make remarks with sexual connotations. She said he would frequently stare at her breasts. On one occasion, he had said to her "under those small titties of yours, I'm sure you've got a heart of gold". She said Mr Sfeir often made reference to her "small titties" in comparison to Ms Dedinja. She had felt very uncomfortable with him, although she looked up to him as a "father figure".

16 Mr Sfeir denied ever touching or grabbing the applicant. He acknowledged making reference to her breasts. He said on a number of occasions the applicant would enter his office, sit down and "lower her top to an extent where her breasts would be very revealing". When he asked her not to do so she replied "why, are my titties not good enough? I'm not blessed like Ms Dedinja".

17 Mr Sfeir said that the applicant was known to be on regular medication and that she would look for alcohol during work hours. She had often confided in him and Ms Dedinja about personal matters. She had told him her parents were driving her away and they didn't approve of her lifestyle. Mr Sfeir said he believed the applicant had an "agenda".

18 Ms Dedinja said that she would sometimes observe the applicant enter Mr Sfeir's office and behave in a flirtatious way. She said that he had not shown any interest in her. Ms Dedinja believed that the applicant was seeking attention. The applicant had told her that she felt comfortable talking to him about personal issues and had begun calling him "Uncle Ray".

19 Mr Sfeir referred to a conversation in which the applicant questioned him about his visit to Brisbane with Ms Dedinja. The applicant had asked if he had "looked after her friend", whether they had stayed in the same hotel and had suggested they stayed in the same room. The applicant believed they were having an affair. Mr Sfeir had asked her if she was jealous. She replied "no" and said that she had nightmares about Mr Sfeir. The applicant asked him to make three wishes. She then asked if they could go out to dinner and talk further.

20 The applicant had a very different version of this conversation. She said that Mr Sfeir asked her if she was jealous because he didn't take her on the trip. She replied "no" and that she wouldn't have been allowed to go anyway. She told Mr Sfeir that she had nightmares about him. He replied that she was "young with small titties". He told her he had three wishes - one to take her out and another to get her into bed. She said she told Mr Sfeir that she was no older than his daughter and he was her father's age. She told Mr Sfeir that she expected to be respected and had wished the conversion hadn't happened.

21 Ms Dedinja gave evidence that the applicant would often come to work inappropriately dressed - in tight pants, skirts, tops and with her underwear showing. Ms Dedinja said she had overheard Mr Sfeir tell the applicant to cover herself up or do her buttons up.

22 Mr Sfeir and Ms Dedinja gave evidence that the applicant would drink alcohol in the office after work. The applicant denied this and said she may have had a drink (one or two) at dinner with her work colleagues, but never in the office.

23 The applicant gave evidence of a dinner at the Keg Restaurant in Parramatta which she attended with Mr Sfeir, another employee Mr Khair and Ms Dedinja. She said they had travelled to the restaurant in one car. Her car was left at the office. Ms Dedinja's evidence was that she and the applicant drove their own cars to the restaurant.

24 She said that after the dinner Mr Khair and Mr Sfeir were drunk and Ms Dedinja offered to drive Mr Sfeir home. Ms Dedinja had suggested the applicant drive Mr Khair home, even though he only lived five minutes' walk away. The applicant had resisted, but Mr Khair was already in her car. When they arrived at his home, Mr Khair asked her in for a drink. She refused and said it was late and that they were only work friends. She said his attitude towards her became negative after this incident.

25 The applicant said she felt like the whole thing had been planned. She said Mr Khair had a habit of trying to "move in" on the girls in the office and Ms Dedinja had warned her about him. Ms Dedinja gave evidence that the applicant would flirt with Mr Khair and she was concerned that the applicant was "leading him on".

26 Mr Khair's evidence was that he had walked to the restaurant after dropping his car at home and he was the first to arrive. He said it was the applicant who had insisted on driving him home. He had asked her in for a coffee. She declined and they kissed goodnight. In oral evidence, Mr Khair said he was not drunk that night.

27 The applicant alleged that Mr Khair would make remarks to her in Arabic that had sexual connotations. Mr Khair deposed that the applicant asked him how to say bad words in Arabic which she then repeated. Ms Dedinja confirmed Mr Khair's evidence on this point. Mr Khair denied saying to another employee that he was "trying to get into the applicant's pants".

28 The applicant's evidence was that Mr Khair made a number of unwelcome phone calls to her home. She had complained to Ms Dedinja about it.

29 Mr Khair replied as follows. One Friday, after a heated office exchange about the September 11 terrorist attacks, the applicant went home early. He said she was cranky and upset. He phoned her the next day in an effort to calm her down. The applicant had answered the phone and asked him to call back in twenty minutes. He did so and left a message. When he came to work on Monday, he asked the applicant why she didn't call him back. He said she looked mad and asked "why did you call me?"

30 Mr Khair said that he heard from Ms Dedinja that the applicant wanted to get her boyfriend to fix him up ("bash me up"). Mr Sfeir's evidence was that the applicant had also mentioned this to him. He had advised her that this was a serious matter. Ms Dedinja said that the applicant told her she would bring her fiancé's brother and his friends "to fix the problem up". Ms Dedinja had warned her not to do so. The applicant denied ever threatening Mr Khair.

31 The applicant accused Mr Baron of sexual harassment by staring at her. She said that Mr Baron would sit in his office and constantly stare at her. She found him unbearable and felt intimidated. She said she raised the matter with Mr Sfeir. He had told her to take it up directly with Mr Baron. She said Mr Baron was a rude and arrogant person. She had kept her distance from him.

32 The applicant said Mr Baron would search the internet during and after work hours looking for married or divorced women to go out with. She overheard him discussing his dates at work. When she raised this with Ms Dedinja, Ms Dedinja had said "they are all just sexually frustrated men". Ms Dedinja denied this conversation took place.

33 Mr Baron provided a statement. However, he was unavailable for cross examination. Mr Baron described the applicant's allegations as "laughable". Mr Baron said the applicant on several occasions had asked him to go out night clubbing. Further, her general conversations often contained immature sexual innuendos. She would also send him "risqué" text messages.

34 Mr Baron believed the applicant's dress code was not in line with her religious background. The applicant said she found this comment to be offensive. She said she was a Muslim and her dress was never an issue in her family. She believed her dress suited her character and maturity.

35 Mr Bond is the respondent's National Marketing Manager based in Brisbane.

36 Mr Bond gave evidence that he found the applicant to be flirtatious with him and the Brisbane staff. He approached Mr Sfeir about her conduct, in particular the sending of sexual illustrations to the staff. Mr Bond had warned his staff to be very careful in dealing with the applicant. He agreed that both the applicant and Ms Dedinja called him Uncle Barry.

37 Mr Bond's evidence was that at the 2001 Christmas function, the applicant had asked him if he liked her more than Ms Dedinja. She had also insisted he dance with her. Ms Dedinja claimed to have heard this conversation. On another occasion, the applicant asked Mr Bond if she was better looking than Ms Dedinja.

38 Mr Bond said he found the applicant's comments flirtatious and embarrassing for "an old bloke". Mr Bond added that, as a happily married man of thirty-five years with children older than the applicant, he had no interest in her.

39 Ms Dedinja had known the applicant since Year 10 at high school and they had been very good friends. Ms Dedinja had introduced the applicant to the respondent. Ms Dedinja claimed the applicant had numerous health problems and often would leave work early or arrive late after visiting the doctor. Ms Dedinja believed the applicant's dress code for work to be inappropriate. In oral evidence, Ms Dedinja described the applicant's clothes as "tight and revealing". She would wear see-through tops and would sometimes bend over to reveal her underwear. Mr Sfeir had complained to her about the applicant's dress code but she had never heard him refer to the applicant's breasts.

40 Ms Dedinja said that soon after commencing employment, the applicant would talk about personal issues - how she had to lie to her parents about going out and how she liked to drink. Ms Dedinja said the applicant's mother would constantly call her to find out where the applicant was.

41 Ms Dedinja's evidence was that her relationship with the applicant broke down after Ms Dedinja called the applicant at her boyfriend's house and told her that she was no longer going to lie about where she was. This was after the applicant's mother had accused Ms Dedinja of lying. The next day the applicant would not speak to her. Mr Sfeir had encouraged the two of them to sort out their problems by going to lunch together.

42 Ms Dedinja gave evidence that the applicant would resist her instructions at work and gave "attitude". There were occasions when the Brisbane staff would complain about her flirting or the way she spoke to them and customers. On one occasion, Ms Dedinja claimed the company almost lost a customer because of the applicant's conduct.

43 Ms Dedinja agreed that it was true the men in the office often spoke about sex. However, Ms Dedinja emphasised that none of the men in the office approached her in a sexual manner. She had never felt uncomfortable with them. Ms Dedinja said the applicant had complained about the men in the office. Ms Dedinja offered to approach Mr Sfeir with her. However, this never eventuated. Ms Dedinja said the applicant had kept pestering her about the matter. Ms Dedinja told her she was over exaggerating and that she "had had enough" (of her pestering).

44 On 14 December 2001, Ms Dedinja asked the applicant to go to the bank. The applicant had not answered her. Mr Sfeir asked Ms Dedinja what was wrong. Ms Dedinja told him that she had done her best to communicate with the applicant, but she would not respond. She had had enough and asked Mr Sfeir to approach the applicant about the matter.

45 Mr Sfeir claimed that while the applicant would upset other staff and customers, he believed she had some ability and talent. He said her conduct was tolerated because of her age and family difficulties.

46 Mr Sfeir gave specific examples of the applicant's refusal to accept instructions from Ms Dedinja, her inappropriate conduct and flirting with the Brisbane staff, her leaving work early and her inappropriate attitude to customers.

47 Mr Sfeir said he met with the applicant on a number of occasions and suggested she sort out her problems with Ms Dedinja.

49 She asked - why was she kept on in employment and given two pay rises if her performance was so bad? The applicant said she was never happy at Linkware. She worked there to gain experience and for the money. She looked up to Mr Sfeir as a "father figure".

50 The applicant said she did not want compensation, but an apology for the stress caused to her and her family. The applicant said it was obvious that the respondent's witnesses were "helping one another out".

51 For the respondent, Mr Sfeir said the applicant should not be allowed to "double dip" by pursuing similar proceedings in the Human Rights Commission and in this Commission. The respondent did not intend to allow the applicant's accusations to continue unanswered. The respondent's witnesses had a right to defend themselves against the applicant's allegations. He said it had been a costly exercise for the respondent.

52 Mr Sfeir emphasised that he had not wanted the applicant to leave and that he was sorry she did so. However, she left of her own accord.

53 I should say from the outset that it is not for this Commission to pontificate on what constitutes moral behaviour in the workplace. As the Full Bench said in Hollingsworth v Commissioner of Police (No 2) (1999) 88 IR 382 "We are not a court of morals but one of law". Nor, I hasten to add, is the Commission an arbiter of what constitutes acceptable dress standards at work. I make no conclusions about either matter.

54 Rather, it seems to me in deciding this case, that I must review the conflicting evidence of the witnesses to establish firstly, whether the complaints alleged by the applicant occurred and, if so, whether the incidents were of such gravity as to constitute the primary reason/s for her termination of employment.

55 If the incidents did not occur or did not constitute sufficient grounds for her termination of employment, then there is no basis for a claim of constructive dismissal. In the result, the application would unquestionably be dismissed. I shall return to these questions shortly. Before doing so, I make the following general observations.

56 This case demonstrated the problems which invariably arise when employees become too familiar with each other in the workplace.

57 There will sometimes be a subtle difference between how friends conduct themselves in the workplace to how they behave when socialising outside the workplace, particularly where alcohol is involved. That is not to say that the workplace should be lifeless, dull and unfriendly. Rather, it is to observe that it is not unusual for conduct or behaviour which is considered harmless or inoffensive in a social context, to be very much unwelcome and resented when displayed in the workplace. Of course, in any context, a person's conduct must reflect generally acceptable standards of decency and respect for the rights of the individual.

58 The evidence in this case, in my view, revealed a culture in the workplace which "pushed the boundaries" of acceptable workplace behaviour. It was a recipe for trouble and that's precisely what happened.

59 While I am not convinced that Mr Sfeir was a model employer; on the other hand, I am not satisfied that the applicant was an innocent victim of sexual harassment. I believe the applicant's allegations were either untrue or deliberately embellished out of all proportion in order to place the worst possible light on the other employees' behaviour.

60 Nor am I convinced that the applicant found the workplace environment to be distressing, offensive and stressful. I found some of the applicant's own behaviour to be quite bizarre and entirely consistent with the workplace culture I earlier referred to. She appeared to be a willing participant in this unsatisfactory workplace environment.

61 The Commission has arrived at these conclusions by reference to the following matters.

62 Firstly, the applicant discussed with Mr Sfeir some of her most sensitive personal family matters; matters that I do not even feel inclined to mention in this public decision. It seems extraordinary that the applicant would confide in Mr Sfeir, a person who she regarded as a sexual harasser.

63 Secondly, the applicant claimed that the workplace was intolerable and distressing in that four male colleagues were harassing her. This harassment, she said, began from the commencement of her employment. These claims sit rather strangely with her own evidence that she often went out with these employees for drinks and dinner. There is corroborated evidence that the applicant sometimes stayed back after work to share a few drinks with Mr Sfeir and other employees. In this context, I am completely at a loss to understand why the applicant would want to socialise with her alleged harassers? It makes no sense at all, except in the context of my belief that the applicant fabricated the allegations of sexual harassment.

64 Thirdly, the applicant said she regarded Mr Sfeir as a "father figure" and Mr Bond in Brisbane as a "grandfather figure". Presumably, this was to demonstrate that she could tell Mr Sfeir anything. She said she would joke and muck around with Mr Bond - all of which would be seen as perfectly innocent. I should say, I find these descriptions of Mr Sfeir and Mr Bond to be a very odd way to view one's boss and work colleague.

65 Fourthly, Mr Bond gave forthright and, in my view, perfectly believable evidence. As a fifty-four year old family man, he felt uncomfortable being asked to dance with the applicant at the Christmas party and being called "Uncle Barry". He regarded her behaviour as "flirtatious". I accept his evidence.

66 Fifthly, there was nothing remotely humorous in the pictures which accompanied the message to the Brisbane office in which the applicant said "To the Boyz - Leave my Uncle Barry alone or else I will haunt you boyz. PS Hope it got you laughing Barry". The picture was crude and offensive. At the very end of her case in submissions, the applicant denied she drew the diagrams. There was no denial in her reply affidavit after the respondent had filed its evidence with the offending document included. Viewed in this way, I reject the applicant's evidence on this matter.

67 Sixthly, Ms Dedinja said she would be constantly covering for the applicant's whereabouts when her mother would ring looking for her. In the end, Ms Dedinja had enough when the applicant's mother accused her of lying. Curiously, there is no rebuttal to this evidence from the applicant in her reply affidavit, nor any questioning of Ms Dedinja in cross examination about this matter. I accept Ms Dedinja's evidence on this issue.

68 Seventhly, I find that the applicant was less than truthful when she said she had never had a drink of alcohol in the office. Four witnesses said they had observed her doing so. I accept this evidence.

69 Eighthly, I am satisfied that the applicant mentioned to two persons that she was intending to have her fiancé and his friends "fix Mr Khair up".

70 Ninthly, the undisputed evidence was that the applicant was driving, not only her own vehicle, but vehicles owned by the respondent, without a licence. She apparently told no one that she didn't have a licence. This was a very risky and foolish thing to do. This conduct must call into question her credit and honesty.

71 Overall, it seems inexplicable to me that, if the workplace was as bad as the applicant now claims, she would have remained for as long as she did. I do not accept her explanation that she needed the money and had to tolerate the harassment. If it was as bad as she said, no one should have to tolerate it. As I said earlier, I believe the applicant to have been a willing participant in the workplace culture.

72 While there are some readily identifiable inconsistencies in the evidence, to my mind, none of these inconsistencies go to the crux of the issues to be determined in this case.

73 For example, the applicant said that she, Mr Khair, Ms Dedinja and Mr Sfeir travelled together in the one car to the Keg restaurant. The contrary evidence of Mr Khair, Mr Sfeir and Ms Dedinja was that they all travelled to the restaurant separately. The issue however was not how they got to the restaurant, but whether the applicant offered Mr Khair a lift home. Mr Khair, Mr Sfeir and Ms Dedinja said the applicant insisted Mr Khair go home with her. I find in favour of the respondent's evidence on this issue.

74 Another example of the conflict of evidence was whether the applicant asked Mr Hong to buy her a present when he was away in China. Here again, the issue is not how the gift came to be bought, but whether the applicant asked for a kiss and hug from Mr Hong. I believe she did so because she was jealous of the attention afforded to Ms Dedinja.

75 Both parties were unrepresented. The Commission, as presently constituted, had recent cause to highlight the obligations on the Commission in such matters and to refer to the authorities which have set the principles to be applied in cases involving unrepresented litigants. See discussion in Stevenson and Greenstyle Pty Ltd and Penshurst Pty Ltd t/as Atama Furniture [2002] NSWIRComm 292: [142] At this juncture, I would refer to the principles the Commission is to have regard to in respect to unrepresented litigants. In Nicholls and Central Sydney Area Health Service (unreported) Matter IRC4131 of 1999, 25 August 2000, I said this: Sadly, this case starkly demonstrated one of the major problems with cases involving unrepresented parties; namely, that such parties are usually so emotionally and subjectively involved that a rational and dispassionate approach to preparing for, and conducting a proper case, is all but a forlorn hope. .... In view of these circumstances, it is appropriate that I should refer to the principles that the Commission should adopt in litigation involving an unrepresented party. The guiding principle is a simple one: " to ensure all parties are afforded the benefits of the rules of natural justice ". For a helpful discussion of the term 'natural justice' in the context of an unrepresented litigant see Davidson v Aboriginal & Islander Child Care Agency ( Ross VP, Watson SDP and Eames C) Print Q0784, 12 May 1998. While the principle of natural justice might seem simple enough, its application in an intensely emotional and difficult litigation is not always so. It is often a delicate balance involving a number of sensitive issues such as ensuring an unrepresented litigant is aware of his or her rights, ensuring the trial judge does not become an adviser or advocate and ensuring an orderly and sensible conduct of the proceedings. Two authorities are apposite. In Regina v Gidley , 3 NSWLR 168, the Court of Criminal Appeal said: The duty of a trial judge to ensure that every accused has a fair trial thus obliges him to give an accused who is unrepresented such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights, but the trial judge must make it clear that he is not advising the accused either that he should extend those rights or how he should conduct his case.

In Regina v Zorad , 19 NSWLR 91, the New South Wales Court of Appeal held that: 1. An accused who elects to be unrepresented is not entitled because of that election to be given any advantage not enjoyed by a represented person. 2. The duty of a trial judge to give an unrepresented accused such information and advice as is necessary to ensure that he has a fair trial: a) would include, if it became necessary, an explanation as to the form in which questions should be asked, but it is not to put the question in that form for the accused. b) would include the giving of advice that, notwithstanding a ruling on the voir dire as to the voluntariness of admissions, the accused is permitted to raise the same factual matters before the jury: such advice is necessary to ensure that the unrepresented accused is put in a position where he can make an effective choice as to the exercise of his rights but does not extend to advising him how this may be done. c) would include, where comment was going to be made in relation to the accused's failure to comply with the rule in Browne v Dunn , advice of the existence to that rule. See also Herbert and Warrah Ltd [2001] NSWIRComm 109 and Stephan and R L Whyburn and Associates [2000] NSWIRComm 154. [143] In a recent appeal decision, Abdullah Al-Shennag v Bankstown City Council Civic Services Group [2002] NSWIRComm 150, where the appellant appeared unrepresented, the Full Bench said: [6] It is fair to say, we think, that the appellant in these and other respects was assisted by the Commission with appropriate guidance and advice to the extent permissible by his self-represented standing (see Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd (1996) 71 IR 227 for example), and was afforded ample time and opportunity at all stages to understand the requirements of the appeal process and to advance the arguments of his choosing. [144] For completeness, I cite the passage referred to by the Full Bench above in Vincent v Le Cornu Furniture and Carpet Centre Pty Ltd : The Commissioner refused to let her re-open her case. We agree in the circumstances of this case with the Commissioner's action. There must be an end to litigation and in this case the applicant had had ample opportunity to make out and present her case. In fact, the Commissioner was at pains to make sure that she understood the process and he was generous in the guidance which he gave her as to the conduct of her case. The appellant made strong representations that the Commissioner erred in that he did not give the appellant all the help he should have given her as an unrepresented litigant. We do not share that view. Whether a person be represented or not, the responsibility for the conduct of their case remains with them. Whilst we agree that in the case of an unrepresented party the Commission should be prepared to assist with appropriate guidance and advice and give a measure of guidance as to the conduct of their case, that advice and guidance must not jeopardise or in any way compromise the independence of the Commission. Secondly, we share the Commissioner's doubts that her case would be materially advanced by her calling the respondent's witnesses.

76 Arguably, much of the evidence in this case was inadmissible according to the ordinary rules of evidence as to form and substance. However, neither party objected to the other's evidence. All of the material was therefore admitted without objection. It was left to the Commission to sieve through this material and establish what I believe to be the relevant facts and circumstances necessary to determine this matter.

77 In light of this, I am satisfied both parties advanced all of the material they wished to put in support of their respective cases.

78 It is trite law that a claim of unfair dismissal requires the applicant, in the first instance, to establish that a dismissal had actually occurred. Put another way, the onus rests with the applicant to establish the factual basis of his/her dismissal.

79 In most cases, the question of whether a dismissal occurred will be uncontested. However, here the circumstances of the termination of employment were disputed. The applicant maintained that Mr Sfeir dismissed her when she refused to discuss her alleged differences with Ms Dedinja. Mr Sfeir said he had not wanted her to leave. The applicant's father signed for her outstanding entitlements in a document which acknowledged her resignation.

80 So, the question arises did these circumstances constitute a dismissal or more correctly, a constructive dismissal? To find an answer to this question one turns to the definition of constructive dismissal which has now been well established in industrial jurisprudence.

81 A dismissal (be it constructive or otherwise) has been defined as a "termination at the employer's initiative", or where the conduct or actions of the employer is the real and effective initiator of the termination of employment.

82 The oft quoted authority for the above definition is that found in Allison v Bega Valley Council, 63 IR 68 at p72-p73: It is a trite observation that a contract of employment like any contract can come to an end in a number of ways. Termination can be "by" the employer where an employee is "dismissed" either with notice in accordance with the provisions of the contract or without notice in the event of serious and wilful misconduct. Both the employer and the employee may mutually agree that the contract of employment should come to an end. In other cases the employee may bring about the termination by resigning.

In some cases the circumstances in which the termination comes about makes it difficult to determine whether there was termination "by" the employer or the employee. There are cases where the courts, after analysis, have determined that although on the face of it an employee has resigned and brought about the termination of the contract of employment, in reality the conduct of the employer has compelled or unduly influenced the employee to resign. The most quoted example is an assertion by an employer to an employee to the effect that the employee must resign or he or she will be dismissed. This situation is commonly referred to in the text books and decided cases as a "constructive dismissal", that is in effect the employer has brought about the termination of the contract of employment.

Although the term "constructive dismissal" is quite commonly used it can deflect attention from the real inquiry. That inquiry should involve an analysis of what occurred. Did the employer behave in such a way so as to render the employer's conduct the real and effective initiator of the termination of the contract of employment and was this so despite on the face of it the employee appears to have given his or her resignation?

It is obvious that a consideration of these matters must be made on a case-by-case basis and that an attempt to formulate general principles in the absence of particular facts will not assist in the overall determination of this issue.

In order to undertake the necessary analysis it is necessary to look carefully at all the relevant facts. It is necessary to determine whether the actual determination was effectively initiated by the employer or by the employee, particularly where the dynamics within a factual situation may change. For example, an employer may demand a resignation with a threat of dismissal, negotiations may then ensue and the employee may ultimately be genuinely pleased with the outcome of those negotiations to the extent that any resultant resignation may be said to be given freely and without any undue influence being brought to bear by the employer. Where an employee initiates the termination of the contract of employment it is necessary to consider whether that ostensible act of termination was given freely and without any undue pressure. If the ostensible resignation is, in effect, a response to and consistent with a desire by an employer that such resignation be forthcoming, then what has occurred may be that the termination has been brought about by the employer and that in this way the employee has been dismissed.

83 The discussion in Allison concerned primarily the issue of a forced resignation. However, the notion of dismissal as being a "termination of employment at the initiative of the employer" sits at the heart of this decision. See also Clark v Pittwater RSL Club Ltd (1998) 84 IR 309, Claric 218 Pty Ltd t/as Sanity Music v Meldrum, 91 IR 296, St Vincents Hospital Sydney Pty Ltd v Harris (unreported) Peterson, Schmidt JJ, O'Neill C, Matter IRC5932 of 1997, 28 May 1998, Britton v Riverstone Public School (unreported) Schmidt J, Sams DP, McLeay C, Matter IRC5504 of 1999, 6 May 1999, Bates v Gundagai District Services Club (unreported) Walton VP, Sams DP, Redman C, Matter IRC4710 of 1999, 14 April 2000 and Police Service of New South Wales v Batton (2000) 98 IR 154.

84 A recent Full Bench decision in Ward v Mobile Innovations Limited [2002] NSWIRComm 287 reaffirmed the decision in Allison and made these observations: The Commission has authoritatively addressed the question of constructive dismissal in Allison v Bega Valley Council (1995) 63 IR 68 (although the Full Bench in Allison expressed the need for caution in the use of that expression). Hence, the principles for determining whether a termination constitutes a "constructive dismissal" are now well settled, in our opinion, and do not require revisiting in this appeal. In particular, Allison makes clear (at 72) that the proper approach in this context involves an identification of whether the employer was the true initiator of the termination of employment. Each such inquiry must relate to the facts and circumstances of a particular case. This matters(sic) represents no exception in this respect. And at para [6] said: It may be that the conduct of an employer is so onerous or unreasonable prior to a termination that a termination will be found to lay in the hands of the employer, even where the employer has not expressly required an employee to offer resignation or threatened dismissal in lieu of such an offer. However, this notion merely accords with that which has already been formulated in Allison .

85 The last passage is, I think, particularly apposite to the circumstances revealed in this case.

87 The incident on 14 December 2001, which triggered the termination of employment, was insignificant compared to the barrage of allegations that the applicant made subsequent to her termination.

88 Seemingly, the termination of employment arose when the applicant refused to discuss her problems with Ms Dedinja. On the applicant's version of the conversation she refused to acknowledge any problem with Ms Dedinja and refused to discuss anything with her. Mr Sfeir had replied "well if that's the case, I'm going to have to ask you to leave". I would note that the applicant did not protest at all, let alone argue, with Mr Sfeir about being asked to leave or as she maintains, being dismissed.

89 Irrespective of whose version of the conversation one believes, it seems to me the respondent was not the effective initiator of the applicant's termination of employment. Both parties seemed to mutually accept the end of the employment relationship. I refer particularly to what the applicant said in oral evidence - "Yes, I left. I didn't resign. I left".

90 It is relevant, I think, that in the conversation with Mr Sfeir on that day there is no mention of the applicant's allegations of sexual harassment against the respondent. There was nothing said about any harassment or inappropriate conduct.

91 Indeed, there is no evidence that the applicant, or her father, at any time, raised the allegations of sexual harassment with the respondent, or anyone else, until the application for unfair dismissal was made on 7 January 2002, some three weeks later.

92 Moreover, the applicant's father attended the respondent's premises three days after the termination and met with Mr Sfeir. There is no evidence that this conversation was anything but friendly and matter of fact. It is unclear whether the applicant had told her father of her six months of harassment. If she had, then it was a strangely calm way for a father to behave in the presence of one of the alleged harassers of his daughter.

93 Some reliance was placed on the alleged waiver signed by the applicant's father acknowledging that she had resigned. While I have my doubts as to whether this constituted a freely made decision by the applicant to resign, two comments should be made about it. Firstly, the applicant said her father was tricked by Mr Sfeir into signing the document. If that be so, Mr Goren could have easily given evidence to that effect. He didn't do so, notwithstanding he attended all the Commission proceedings with his daughter. Secondly, and more importantly, as I said earlier, the issue of resignation doesn't really arise in this case. 94 All of this leaves me comfortably convinced that the allegations of sexual harassment were created well after the applicant's termination of employment and were designed for some vengeful purpose. The applicant's evidence was underpinned by innuendo of an alleged sexual relationship between Ms Dedinja and Mr Sfeir. I have no doubt that the applicant was jealous of Ms Dedinja's position in the company.

95 Thus it seems to me, there can be no basis for a claim that the termination of employment was at the employer's initiative. Moreover, I accept Mr Sfeir's evidence, corroborated by his notes of his meeting with the applicant's father, that he had not wanted her to leave and was sorry she did so. The applicant herself gave evidence that Mr Sfeir told her father on 17 December 2001 "We are still expecting Jay back".

96 It follows therefore, that I am satisfied that there was no dismissal of the applicant. As a corollary, there can be no unfair dismissal for the purposes of Pt 6 ch 2 of the Act. The Commission, de juris, has no jurisdiction to determine the applicant's claim for alleged unfair dismissal. The application must be dismissed.

97 Even so, had the Commission's jurisdiction been enlivened, and having weighed up the evidence in this case, I am satisfied in any event that the Commission would not have found the applicant's termination of employment to be "harsh unreasonable or unjust" within the meaning of s84 of the Act.

98 The application is dismissed and the proceedings concluded accordingly.

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