On 16 May 2023, the applicant filed an Application for Relief in Relation to Unfair Dismissal (Application).
On 17 May 2023, the matter was listed for telephone Conciliation and Directions on 1 June 2023. The matter was listed by telephone given the applicant lives in Beechworth, Victoria, and respondent is based in Albury.
On 29 May 2023, the respondent filed a Employer's Response to Unfair Dismissal Application which included notice that the respondent objected to the Industrial Relations Commission (Commission) having jurisdiction to determine the application on the basis that "… by virtue of Applicant's voluntary resignation from her position, she is not able to seek relief from the Commission for unfair dismissal."
On 1 June 2023, when the matter was called on by telephone the respondent agreed that it would be willing to participate in conciliation, whilst reserving its right to object to the jurisdiction of the Commission should conciliation not resolve the Application. The Commission observed that the Application was explicitly made on the basis that the dismissal was, in the words of the applicant, a "constructive dismissal".
Conciliation was not successful, and the Commission determined that it was appropriate to set a timetable to prepare the Application for hearing. The usual directions, including a time for each party to file material, were set. The Commission ruled that should the respondent wish to pursue its jurisdictional objection it would need to do so by way of Notice of Motion.
On 9 June 2023, the respondent filed a Notice of Motion seeking that the Application be dismissed on the basis that there was no "dismissal" by the respondent which could found jurisdiction for the Commission to determine the Application.
On 20 June 2023 the matter was listed for telephone Directions so that the Commission could hear any submissions from the parties as to the manner in which the Notice of Motion, and the matter more generally should progress. Unfortunately, the applicant did not attend this Directions hearing. The Commission made orders vacating the previous directions preparing the substantive application for hearing but did not make any further orders in the applicant's absence.
Later the same day, the Registry emailed the applicant noting that the matter had been called on, that the applicant had been absent, and providing times at which the Directions hearing could be relisted. Further correspondence was exchanged between the Registry and the parties with the matter subsequently being relisted for telephone Directions on 22 June 2023.
On 22 June 2023 the matter was listed for telephone Directions and a timetable set for the filing of evidence and submissions on the Notice of Motion. The Commission determined that, as the jurisdiction of the Commission was challenged by the Notice of Motion, it was necessary to determine that question before the substantive application could be addressed. No objection was raised by either party to this process.
In compliance with Commission's directions, on 13 July 2023 the respondent filed evidence in the form of affidavits from Susan Harper, Howard Bevan, Helen Preguet, Carmen Hiscock, and Ambrose Glass. The respondent also filed submissions set out in a document titled Respondent's Outline of Submissions.
At 4:36 PM on 2 August 2023, the applicant sent an email to the Registry which began "Please see my response regarding Matter No 2013/00156541 Kathrine Waugh v Albury City Council." The email attached what was described as a "January to March 2023 roster" of one page. This was accepted for filing by the Registry and treated as filed on 3 August 2023, and so in compliance with the date set for the filing of the applicant's material.
On 9 August 2023, the respondent filed a document entitled Respondent's Submissions in Reply and a second document outlining the respondent's objection to various aspects of the evidence of the applicant.
The matter was listed for directions on 15 August 2023 to give the parties an opportunity to make any submissions they wished as to how the matter should be dealt with following filing of evidence and written submissions. The respondent appeared on that occasion, but the applicant did not. The Commission proposed to determine the Notice of Motion on the papers filed, and the respondent agreed that this was the appropriate course.
At the Directions on 15 August 2023, the Commission observed that the applicant had emailed the Registry asserting that various documents were required for her to conduct her case and asserting that she had filed a summons and made a GIPA application to the respondent for various documents. The Commission further observed that it was not apparent how those documents were relevant to determining the Notice of Motion. Accordingly, in the absence of any reason advanced by a party, the Commission would proceed to determine the Notice of Motion on the material already filed.
To ensure that the applicant had an opportunity to say anything that she wished about this course, the Registry wrote to the applicant on 15 August 2023, in the following terms:
"Dear Ms Waugh,
Your application was listed for telephone Directions today at 2.00pm. There was no appearance by you or on your behalf.
During the Directions, Commissioner Muir noted that all documents required by the directions of 22 June 2023 have been filed. Commissioner Muir will proceed to determine the question of jurisdiction based on the material filed, without further appearance by the parties or witnesses.
Commissioner Muir noted that you had emailed the Commission about a GIPA application to the respondent and had referenced a summons issued by the Commission for the production of documents by the respondent. He noted that it was not obvious how the documents you have sought under GIPA are relevant to the question of whether the Commission has jurisdiction to hear your application. He also noted that no Summons has been issued by the Commission in your application.
Should you wish to have your matter determined other than on the documents already filed, you must contact the Registry in writing (e.g. by email) before 4.00pm on 22 August 2023. Any written response to the Registry should set out what alternative process you seek, and an outline of why you seek this process.
Should the Registry not hear from you by 4.00pm on 22 August 2023, the Commission will proceed to determine jurisdiction on the papers as set out above.
Kind regards,"
On 16 August 2023 the applicant emailed the registry in the following terms:
"Dear all.
Apologies for not being able to connect into the teleconference yesterday at 14:00.
As previously discussed, phone reception in regional Victoria isn't always the strongest. I have made all parties aware of this in previous correspondence. I understand that most parties are located in the middle of the CBD of Sydney where there would be more than ideal internet and phone reception.
May I respectfully request that if a teleconference is to be organised again, that I can undertake the session at the Albury Court so that I have a location with a more secure phone / internet strength. What arrangements are needed for this?
Regards
Kathrine Waugh"
On 29 August 2023 the applicant again emailed the registry in the following terms:
"Dear Commission Muir.
I received the below update from Albury City Council (FOI) in regards to a request of a document (personal onboarding training document from the Albury Visitor Information Centre) that is key to my matter.
It greatly concerns me that Council is still withholding the information when they, openly promote (on the website and internal communications) transparency.
I also want to reiterate again to all, I have verbally and written about the issue of access issue (telephone/internet strength) due to living in a regional area. I made the suggestion/solution to attend the Albury Council to ensure strong signal /access to service."
The Commission considers that the applicant has had a proper opportunity to ask that the Commission not determine the respondent's Notice of Motion on the papers. The applicant has not made such a request at the time of this decision.
The Commission also considers that the applicant has had a proper opportunity to explain why any further documents are relevant to determination of the Notice of Motion, and has been put on notice that the Registry has received no request from the applicant seeking to issue a summons. Nothing has been received from the applicant addressing these issues at the time of this decision.
Accordingly, the Commission proceeds to determine the respondent's Notice of Motion on the papers, and on the basis of the documents filed.
The applicant's request for any further telephone listings of this matter to be arranged such that she could attend from the Albury Court House is a matter that should be addressed in the context of any future listing. The Commission observes that internet coverage is not required for attendance at listings of the Commission arranged by teleconference.
[2]
The respondent's evidence
The respondent filed evidence in the form of affidavits from the following witnesses:
1. Susan Harper, Team Leader for Visitor Economy and Experience at the respondent, which included management responsibility for the Visitor Information Centre. Ms Harper was the direct manager of the applicant's supervisor;
2. Howard Bevan, Business Partner for Human Resources at the respondent;
3. Helen Preguet, Team Leader Our People at the respondent, and Mr Bevan's manager;
4. Carmen Hiscock, Wellbeing Health and Safety Senior Business Partner at the respondent; and
5. Ambrose Glass, Service Leader Business and Lifestyle at the respondent.
The evidence from each of them was detailed, and extensively supported by documentation relating to the matters set out in their affidavits.
The Respondent's Outline of Submissions set out that the sum of their evidence was that:
"a. Ms Waugh commenced employment with the Respondent on 17 December 2022 in the part-time temporary position of Visitor Information Officer. Her regular place of work was the Visitor Information Centre ("VIC"), located at the Stationmaster's Quarters in Albury.
b. Beginning in January 2023 and continuing until March 2023, the Respondent identified that the Applicant was in breach of the Leave Procedure flowing from her failure to appropriately notify her absences from work and her failure to provide appropriate documentation to support the use of sick leave.
c. On 24 February 2023, the Applicant was informed by a newspaper article published in The Border Mail, that the VIC was changing locations upon the expiry of its lease. The article suggested that the Stationmaster's Quarters in Albury may be unsafe because of intoxicated persons intermittently loitering outside the premises.
d. On or about 13 March 2023, the Respondent was notified that SafeWork NSW had received a complaint about the safety of the VIC. Initially, the complaint was made anonymously. The Applicant subsequently raised a second complaint with her name attached. The Respondent corresponded with SafeWork NSW to assist with their enquiries.
e. From 22 March 2023, the Applicant did not attend the workplace.
f. On 3 April 2023, the Respondent produced a Notice of Investigation letter and provided this to the Applicant. This letter was issued in relation to alleged breaches of the Respondent's Leave Policy and sought to organise a meeting between the Applicant and the Respondent's Human Resources representatives to discuss the matter further.
g. On 4 April 2023, the Applicant produced a statutory declaration that she could not attend work due to safety concerns. This statutory declaration did not provide an end date.
h. On 4 April 2023, SafeWork NSW conducted a site inspection of the VIC and determined that there were no identifiable safety hazards, and that no action was required by the Respondent.
i. On 5 April 2023, the Applicant lodged an internal safety grievance, citing concerns about the safety of the VIC. The Respondent provided an initial response to this grievance on the same day and informed the Applicant of SafeWork NSW's attendance at the VIC and the determination by SafeWork NSW that there were no concerns as to its safety. The Applicant did not respond to this correspondence.
j. On 6 April 2023, the Applicant failed to appear at the scheduled meeting to discuss the Notice of Investigation letter. An alternative meeting was scheduled for 13 April 2023, and once again the Applicant did not attend. Instead, the Applicant provided a written response to the allegations on 11 April 2023.
k. On 15 April 2023, the Applicant requested annual leave up to and including 30 April 2023.
l. On 18 and 22 April 2023, the Applicant was advised that her annual leave request was approved up to and including 26 April 2023. Her annual leave application for 26 - 30 April was declined due to the lack of available annual leave.
m. On 19 April 2023, the Respondent extended an offer to the Applicant by way of email to discuss her safety concerns in a meeting. The Applicant did not respond to this correspondence.
n. On 19 April 2023, the Respondent provided the Applicant with her upcoming roster for the month of May.
o. On 26 April 2023, the Applicant advised the Respondent of her resignation by way of email.
p. On 27 April 2023, the Respondent wrote to the Applicant advising of its acceptance of her resignation."
The Commission has read and considered each of the affidavits by the respondent's witnesses and agrees that the respondent's summation accurately reflects the sum of the evidence of those witnesses.
The Commission summarises the respondent's evidence as follows:
1. soon after commencing employment with the respondent the applicant began to attend work late without prior notice to the respondent;
2. during the same timeframe the applicant failed to attend work without prior notice, and although she later advised the respondent that she was sick, the applicant did not provide proper supporting information, including documentary support as requested and as required by the respondent's policies;
3. as a consequence, the respondent began an investigation into the conduct of the applicant and asked her to attend meetings to discuss her conduct;
4. after the respondent made the requests, the respondent became aware that the applicant viewed her workplace as unsafe for a range of reasons. In response to concerns raised by the applicant, and other employees, the respondent sought the assistance of SafeWork NSW who, inter-alia, conducted site inspections and reported that they had not detected any identifiable safety hazards or remedial action required by the respondent;
5. without providing any reason the applicant failed to attend at least two meetings scheduled to discuss her compliance with workplace policies;
6. in early April the applicant sought leave for a period of four weeks, but was only granted leave for three weeks. The remainder of the period was not approved because the applicant did not have sufficient leave credit;
7. shortly before the end of her approved leave the respondent sent the applicant her work roster for the period commencing the day she was due to resume work, being 26 April 2023; and
8. on the day she was due to resume the applicant emailed a letter of resignation.
The applicant's email submission did not set out her account of the period of her employment in a chronological order. Her email began by listing 20 documents, some of which could better be described as a category of documents, which she sought from the respondent. Her email did not provide any explanation as to why these were relevant to whether her employment was a dismissal at the initiative of the employer. Set out underneath the list of these documents was a point form response to some of the affidavits filed by the respondent.
These point form responses ranged from short statements such as "proof was provided", "not correct", and "evidence was provided", to more extensive responses. Most of the longer responses were difficult to understand, but none of the responses expressly asserted that respondent was the initiator of the termination.
Set out underneath these point form responses was a series of dot points in the following terms:
"I live in Beechworth, Victoria which is a good 45-minute country drive from Albury.
My original period of employment was 3 January 2023 to 4 January 2024 (backfill maternity role) but due to other circumstances, I was asked to commence Saturday 17 December 2022 (weekend).
My hours were a mixture of weekday and week ends.
The Visitor Information Centre (VIC) is located at the Albury Railway Centre, several blocks away from the main Council building in Kiewa Street.
I commenced work in a very busy time when most Council staff are winding down for the year and not always available for the Christmas/New Years / School holidays period.
Tammy Williams was my supervisor (noting, she did not provide a statement)
Albury City Council had 3 different induction processes/systems for new staff - online learning, corporate ½ day then area specific training to the Visitor Information Centre.
I had to follow up with various Council staff members to obtain documentation or queried policies/procedures or training. Seeking clarification so that I fully understood my requirements.
Sunday 5 February 2023, I unfortunately had an incident. I noticed that the first aid kit contents were out of date, the audit was undertaken by other staff not the apparent first aid officer and had to complete the OH&S system without the training as promised by Council on Tuesday 24th January 2023
Tuesday 8 February 2023, I undertook manual handling training by Council staff member Kim Mack. This seemed to be the only deemed risk for staff at the Visitor Information Centre
Monday 27 February 2023, I followed up with Murray Teakel regarding fleet policies/procedures also requesting a driving lesson as I was unfamiliar with the Council/NSW requirement of reverse parking.
Wednesday 8 March 2023, I had an improuted meeting with Sue Harper. She could understand why I couldn't sign off on my induction paperwork including driver training and the Visitor Information Centre. I advised her that Tammy had not provided me with a copy to then refer to
Wednesday 22 March 2023, finally received formal VAULT /OH&S training, nearly 3 months after commencing with Council (OH&S training (VAULT) as discussed in the corporate induction 23 January 2023, was made available 9 February 2023 (non-rostered work day) and 9 March 2023 (non-rostered work day)
Wednesday 22 March 2023, logged issue in system advising that there was no working alone policy/procedure/phone tree for the Visitor Information Centre
First weekend of April 2023, no Council staff member checked on my well being or contacted my next of kin/emergency contact to see if I was ok and coming into my shift
From 17 December 2022 to 22 March 2023, I have never seen a Council employed security person during any of my shift yet Sue Harper made the statement that Council had increased security."
In her original application, set out under the Reasons for Application, the applicant articulated the following:
"I am a Victorian based, ex New South Wales employee who was employed by the Albury City Council. I was successful in obtaining a part time 16 hours per week, maternity backfill role for a year. was supposed to commence with Council 3 January 2023 but they asked me earlier, so I started 17 December 2022.
My usual rostered days were Monday, Wednesday and every second weekend. I can provide the rosters as a supportive document.
As a customer facing/service role, the Christmas/New Years/School holiday period was busy time and my induction into the organisation wasn't really until the early to late January 2023.
Council had 3 different types of induction programs - online videos, a 1/2 day corporate with follow up training then also for the Visitor Information Centre. I tried my best to complete these as a part time customer facing/staff member but had a number of interruptions and made my supervisor and manager aware including HR. I also like to ensure that I read the relevant Council policy/procedure.
On Friday 24th February 2023, I became aware of an article in the Border Mail regarding my workplace. Please see the attached article. I was unaware of the issues raised in the newspaper article including Sue Harper stating that staff do not work alone but as you can see from the rosters, the weekend there is a staff member alone from 13 to 15 Saturday and Sunday. My next shift was Saturday 25th February 2023. There was no correspondence or information from my supervisor Tammy Williams, nor the next people in the chain of leadership Sue Harper, Ambrose Glass, Tracey Squire or the CEO. I followed up with Sue Harper on 27th February 2023 about the issue which she was not very happy about.
Also on Wednesday 8th March 2023, an inprompted meeting occurred between Sue Harper - noting this was the first time she had visited me at the VIC upon commencement 17/12/2022 and Tammy Williams. I was ambushed due to the issues that she discussed including her belittling me about safety issues - just get on with the job
This was just one of many safety concerns/issues I raised -
First aid kit out of date and audited by not the designated officer
Fleet vehicle paperwork presigned by Council
Request for training in fleet vehicles due to unfamiliar reverse parking
Reluctance by Council to provide declaration paperwork
No fire warden training
No training to deal with difficult people
Reporting of used syringes outside the Visitor Information Centre - at times I felt I was back in Melbourne CBD also safe handling procedures and equipment
No working alone procedures
No phone tree for emergencies
Never seen security employed by Council
Supervisor Tammy Williams and Manager Sue Harper did not allow me to attend medical appointment - during rostered working hours after an unfortunate bug in ear incident
I finally received OH&S training after several verbal and written requests on Wednesday 22 March 2023 - a work day, some 3 months after my initial start with Council.
Other Council training was scheduled on my non rostered/work days of Tuesday, Thursday or Friday and there was a reluctance by Tammy Williams and Sue Haper to pay me on these days. As per my position description, stating to have first aid qualifications yet they do not want to pay me. Accidents do not just happen Monday to Friday, 9 to 5 but on the weekend.
I received a letter of investigation by Council on Monday 3rd April 2023 demanding me to attend a meeting on my non work day. I provided a written response to the information until I could find a suitable support person. Please note that most people that I spoke to were not willing to act as my support person for the fear of intimidation and threats or a potential conflict of interest.
On Tuesday 4th April 2023, I provided a stat dec to Council stating an unsafe and unsupportive workplace which still has not been acknowledged or actioned by Council.
I was forced to use my leave entitlements until I obtained a suitable support person as if I went back to work at the Visitor Information Centre, I was contradicting my stat dec.
Unfortunately, I was unable to find a suitable person and had to resign on 26 April 2023.
Under the Work, Health and Safety Act 2011, it prohibits a person from engaging in discriminatory conduct for a prohibited reason. This includes adverse action for raising a work, health and safety matter. I believe that Council failed with their duty of care - especially after Friday 24th February 2023 and I was bullied/forced out of the organisation for raising safety concerns/issues.
Council were not transparent with the issues at the Visitor Information Centre nor provided training to support staff, especially those who work on a weekend.
I have just recently been advised by a Council HR representative that SafeNSW attended the workplace Monday 3rd April 2023, coincidently the same day I get my letter from Council."
Attached to her original application was the applicant's resignation email it set out:
"Dear HR team.
Due to safety concerns and other matters at the Albury Visitor Information Centre, I feel that there is no other course of action but to resign immediately with pending discussions at NSW Industrial Relations.
Noting that I received no communication (phone calls, SMS, or emails) today being 26/4/2023 from Albury City Council HR department citing the below email correspondence.
Regards
Kathrine Waugh"
The Commission observes that the email refers to "pending discussions at NSW Industrial Relations". This appears to relate to an earlier email from the applicant, attached to the resignation email, forwarding an acknowledgement from an email address "complaints@industrialrelations.nsw.gov.au". The forwarded email contains no detail of the complaint, and no detail has been provided by the applicant to the Commission.
The Commission has concluded that the applicant had a series of grievances against the respondent as her employer. These included the applicant's belief that:
1. the respondent had not adequately trained her, and had sought to press her to accept she had completed training when she believed she had not;
2. the Visitor Information Centre at which she worked was unsafe;
3. the respondent was an unsympathetic and uncaring employer in relation to her taking of sick leave; and
4. the respondent had failed to reimburse her for expenses incurred in undertaking first aid training.
The respondent's material in reply took issue with the factual basis for each of the applicant's grievances. The reply also set out in considerable detail objections to the applicant's evidence and to its acceptance by the Commission based on a range of reasons from the evidence being hearsay, being opinion, being irrelevant, being unqualified conclusions, and the evidence being argumentative and unsupported speculation. The respondent accepted that the Commission was not bound strictly by the rules of evidence but pressed its objections as to the weight the Commission should give to the applicant's evidence.
There is, without question, considerable force to the respondent's objections to the applicant's evidence. The Commission has had great difficulty in extracting what the applicant has said about each event and how this relates to her submissions that her resignation should be viewed legally as a dismissal at the initiative of the respondent. The Commission has had regard to the applicant representing herself, and the respondent being represented professionally by its relevant industrial organisation and taken the applicant's evidence at its highest.
The evidence filed by the respondent is, as the Commission has already observed, comprehensive. It discloses a professional and reasonable approach by an employer. The respondent engaged in processes in relation to both concerns it had about the applicant's attendance and documentation supporting absences, and in a process responding to complaints by the applicant, in a reasonable and proper manner.
While the Commission has expressed concerns about the difficulty in extracting the applicant's account of events it does appear that she has raised complaints which are genuinely held by her, and at least initially expressed those through proper processes.
The Commission has been unable to find in the applicant's evidence a contention that she engaged with the respondent's investigation into her conduct as she was required to do.
The totality of the evidence leads to the clear conclusion that the applicant refused to participate in the respondent's investigation into her absences. The applicant was entitled to pursue her concerns as to the safety of her workplace, but that could not excuse her from engaging with the respondent in their investigation into her conduct.
It is clear from both the respondent's and the applicant's evidence that the applicant was not getting the response she wished from the respondent and accordingly was escalating her response. Whether her concerns were well founded was a matter which had not come to a conclusion at the time her employment ended.
Further, and notwithstanding the Commission's conclusions as to her improper refusal to engage with her employer in its investigation into her conduct, it is clear that the respondent had not concluded its investigation. Indeed, it is clear that it was far from even establishing the facts, let alone concluding what it should do as a consequence of such any facts established.
It is clear to the Commission that the respondent was proceeding on the basis that the applicant's employment would continue. This is established by a range of factors. The respondent was continuing to conduct its investigation, it was continuing to respond to the applicant in relation to safety concerns, and most obviously it sent her the roster for the period immediately after her return from annual leave.
The applicant's email of 2 August 2023 observed that her direct supervisor, Tammy Williams, was not among the respondent's witnesses. The applicant did not set out why this was relevant or whether the Commission should draw any conclusions flowing from this absence.
In its submissions in reply, the respondent submitted that Ms Williams was on leave during the period in which witness statements were prepared in accordance with the Commission's timetable. The respondent attached leave forms which, on their face, supported the further submission that the requests for that leave had been made and approved before the Application was made.
The Commission has concluded that the respondent has explained the absence of a statement from Ms Williams. Further, nothing in the applicant's evidence referred to Ms Williams being able to give evidence that the respondent was the initiator of the termination of the applicant's employment.
[3]
Legal issues
The Respondent's Outline of Submissions set out comprehensively the law applying to the Notice of Motion.
As the respondent set out, s 84(1) of the Industrial Relations Act 1996 provides that:
84 Application for remedy by dismissed employee
(1) If an employer dismisses an employee and the employee claims that the dismissal is harsh, unreasonable or unjust, the employee may apply to the Commission for the claim to be dealt with under this Part.
The Respondent's Outline of Submissions then set out that:
"9. The legislative provisions empowering an employee to bring a claim for alleged unfair dismissal are contingent upon a finding that the employee was in fact, dismissed at the initiative of the employer.
10. The word 'dismissed' for the purposes of this Part is not defined in the Act. In lieu of a definition contained within the Act, the ordinary and natural meaning of the word will apply. In Smith v Director-General of School Education (1993) 51 IR 204 (hereafter referred to as 'Smith') a Full Bench of the Industrial Court found at 219:
..It is to the ordinary meaning of dismissed that assistance may be obtained; the Oxford English Dictionary 2nd ed (1989) defines the word in appropriate respects as follows:
2a... to send away (a person); to give permission to go; to bid depart b...
3a... to send away or remove from office, employment, or position; to discharge, discard, expel
b...
4.To deprive or disappoint of or from some advantage
11. In Allison v Bega Valley Council [1995] 63 IR 68 (hereafter referred to a 'Bega Valley') a Full Bench of the Commission (at 72-73) made the following observations:
'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 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 that 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.'
…
15. In Maher v Department of Corrective Services (NSW) [2006] 151 IR 102 (hereafter referred to as 'Maher') a Full Bench of the Commission upheld the decision of Connor C at first instance in Maher v Department of Corrective Services (NSW) [2005] NSWIRComm 1127 and quoted the following passage from the decision at first instance at [17]:
[12] As the Full Bench affirmed in Allison v Bega Valley Council, to establish a constructive dismissal from Mr Maher's resignation, Mr Maher carries the onus of establishing to my satisfaction that his resignation was something which the Department had, in fact, engineered, i.e., that it gave him no choice but to resign. The last word from the Department was its offer of mediation which Mr Maher declined - hardly evidence that it was creating such difficulties for Mr Maher that he was forced to resign, no matter what Mr Maher may think. I share the view with Ms Anderson the view that Mr Maher's decision to resign or retire was, in the end, taken on his own volition.
16. In Commissioner of Police v Danger [2022] NSWIRComm 1085 a Full Bench of the Commission overturned the decision of Murphy C at first instance on the basis that the factual circumstances of the matter did not support the conclusion made at first instance.
17. The Full Bench at [65] quoted the decision of Moore J in Rheinberger v Huxley Marketing Pty Ltd (1996) 67 IR 154 at 160-161 as follows:
'However it is plain from these passages that it is not sufficient to demonstrate that the employee did not voluntarily leave his or her employment to establish that there had been a termination of the employment at the initiative of the employer. Such termination must result from some action on the part of the employer intended to bring the employment to an end and perhaps action which would, on any reasonable view, probably have that effect.'
…
21. The Respondent relies on Hanna v Norther Sydney Local Health District [2016] NSWIRComm 1025 (hereafter referred to as Hanna).
22. In Hanna, Stanton C considered the interaction between the grievance resolution procedure and an employee's resignation. His interpretation at [158]-[159] of the decision are particularly relevant in the circumstances the Commission is asked to consider in this matter. The Commissioner observed:
[158] 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 man
[159] 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.
…
33. In Moore v North Sydney Council [2018] NSWIRComm 1062, Constant C (as she was at that time) observed the following at par [70]:
… Further, the applicant's subjective belief is not the test. The correct test, as set out in Allison and Kelleher, is whether, when considered objectively, the respondent's actions or inactions were the effective initiator of the termination of employment.
34. This is consistent with the reasoning of Sams DP in Kelleher and Wagga Wagga Base Hospital [2004] NSWIRComm 187. At [96], Sams DP observed that:
It needs to be stressed that notwithstanding 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."
The applicant did not make any submissions as to law. This is of course understandable as she represented herself. In so far as the applicant made no submissions as to the applicable law, the Commission does not consider the applicant has suffered any disadvantage as the Commission considers that it is beyond doubt that the respondent has fairly and accurately set out the law relevant to determining the Notice of Motion.
The respondent's submissions are therefore adopted by the Commission as the correct approach to the questions raised by the Notice of Motion.
In summary the question is whether the actions or inactions of the employer, considered on an objective basis are the effective initiator of the termination of the employment. In the words used in Alison, did the respondent behave in such a way as to render the employer's conduct the real and effective initiator of the termination of the employment?
[4]
Conclusion
The Commission, as should be apparent from the summary set out above, considers that the applicant was genuinely aggrieved by a range of issues. It is apparent that she did not consider the respondent was providing a response which was acceptable.
It is more difficult to discern whether the applicant actually believed that the respondent wished to be rid of her as an employee, or whether she resigned because she had concluded that the respondent would never agree to a response acceptable to her.
Given the conclusions the Commission has drawn from the case law, and in particular from the decisions in Moore and Kelleher, it is unnecessary to make this determination.
The Commission has concluded that there was nothing in the conduct of the respondent which objectively demonstrated that the respondent was the real and effective initiator of the termination of the employment.
The respondent was continuing its investigations and had sent the applicant a roster for her working arrangements. Neither party has produced to the Commission any document which went even so far as to put the applicant on notice that the respondent was considering the termination of the applicant's employment
The Commission observes that the applicant may have been unhappy with the respondent's answers to her complaints, and about its investigation of her conduct, but that alone cannot amount to a dismissal at the initiative of the employer. It is of course always open to an employee who does not agree with the conduct or decisions of their employer to leave that employment. This was the course taken by the applicant.
Accordingly, the respondent's Notice of Motion should succeed, and the substantive application should be dismissed.
[5]
Orders
The unfair dismissal application filed by Kathrine Waugh on 16 May 2023 is dismissed for want of jurisdiction.
C Muir
Commissioner
[6]
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Decision last updated: 08 September 2023