Luszczynski v Cement Australia Packaged Products

Minato v Palmer Corporation Ltd (1999) Industrial Relations Court of Australia, [Murphy JR], 63 IR 357. CASES CITED: Kwik-Fit (GB) Ltd Lineham (1992) ICR 183. Rheinberger v Huxley Marketing Pty Ltd, (1996), Industrial Relations Court of Australia, [Moore J], 67 IR 154.

APPLICANT Mr P Newall, barrister Solicitors for applicant: Quinns Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr A Powter, solicitor Solicitors for respondent: TurksLegal

Wendy Marie Luszczynski -v- Cement Australia Packaged Products Pty Limited

Application by W Luszczynski re unfair dismissal pursuant to section 84 of the Industrial Relations Act 1996.

1 Actions taken in anger will usually be regretted. A resignation given during an emotional outburst may be properly treated as an action taken "in the heat of the moment" and as such, not capable of being validly relied upon by an employer. If such a resignation is confirmed in writing and also repeated after a reasonable period of time has elapsed, the prospect that the resignation represented a constructive dismissal given during a "heat of the moment" incident becomes difficult to substantiate. 2 On 9 February 2005, Wendy Luszczynski, (the applicant) resigned from her employment of nearly five years with Cement Australia Packaged Goods Pty Limited (the employer). The resignation was initially given verbally in circumstances which could be described as a "heat of the moment" outburst. A short time later confirmation of the resignation was sent by email. 3 Although the employer initially refused to accept the "heat of the moment" verbal resignation, it subsequently acted to accept the written version and decided to pay the applicant an amount exceeding the remuneration that would have applied if the applicant had worked for a period of three weeks notice as mentioned in the written resignation. 4 The applicant has subsequently asserted that the employer was not entitled to act in accordance with the purported resignation. Instead the applicant has claimed that she was unfairly dismissed. 5 The applicant filed a claim for unfair dismissal on 9 May 2005. The claim was made pursuant to section 84 of the Industrial Relations Act 1996 [NSW], (the Act). Following unsuccessful attempts to settle the claim by way of conciliated agreement, the matter proceeded to a Hearing conducted on 1 and 2 September 2005.

6 The applicant is a woman who was some fifty five years of age at the time of her alleged unfair dismissal on 9 February 2005. The applicant had been employed for a period of approximately four years and nine months. The applicant worked as a Credit Control Officer and had a generally unblemished employment record up until the events that led directly to the termination of her employment on 9 February.

7 In December 2004, the employer engaged a new National Credit Manager, Ms Christine MacPhee. Relevantly Ms MacPhee was required to oversee the work of the applicant. As part of this role Ms MacPhee arranged a meeting with the applicant for what was described as performance management purposes. The performance management of the applicant centred upon customer complaints regarding the applicant's manner which was alleged to have been aggressive and abrupt. The employer had received a written complaint from one of its customers regarding the applicant's alleged aggressive and abrupt manner. Another customer had provided complaint by way of telephone advice. 8 The performance management meeting of the applicant included attendance by Mr David Leavesley who was described as the employer's Plant and People Performance Manager. The applicant was not advised that Mr Leavesley would be in attendance at the meeting, nor was she made aware of the purpose of the meeting prior to its commencement shortly after 2.00 pm on 9 February. 9 Ms MacPhee had pre-prepared and signed a formal warning letter that was given to the applicant during the meeting of 9 February. The applicant reacted angrily to the issuing of the warning letter. As part of an emotional outburst, the applicant told Mr Leavesley and Ms MacPhee that she was resigning and providing three weeks notice. The applicant then walked out of the meeting. 10 The applicant showed the warning letter that she had received to the Site Manager, Mr Paul Fittler. She told Mr Fittler that she had just resigned her employment and given three weeks notice.

11 The applicant then proceeded to her desk and typed out the email resignation which was despatched to the relevant employer representatives. The applicant then turned her computer off and commenced to pack her belongings as it was shortly before the time at which she was to complete her work for that day. At this point the applicant was approached by Mr Leavesley who invited her to return to the meeting room to have a further discussion with him in the absence of Ms MacPhee. 12 The applicant then had a brief meeting with Mr Leavesley during which there was some disputed evidence as to whether or not the applicant was asked and did confirm her desire to resign. During the course of this further brief meeting, Mr Leavesley gave the applicant his business card and invited the applicant to telephone him personally if she wished to talk about the matter further. 13 The applicant then gathered her possessions and left the workplace. About an hour later Mr Leavesley telephoned the applicant on her mobile telephone and initially inquired as to whether she had made the journey home safely. Mr Leavesley then advised the applicant that the employer had decided to accept her resignation and that she would not be required to work out the three weeks notice period. Mr Leavesley also told the applicant that her other personal possessions had been collected and were to be despatched to her home that afternoon. 14 On the following day, 10 February, the applicant telephoned Mr Leavesley inquiring as to when her final payments would be credited into her bank account. Mr Leavesley undertook to clarify details about the final payments, and telephoned the applicant later on 10 February with the relevant information. 15 Although at this time, 10 February, the applicant did not convey any complaint to the employer about the employer's action in accepting her resignation, she subsequently filed a claim that has asserted that the employer's actions represented her unfair dismissal.

THE EVIDENCE 16 The evidence presented in this matter was adduced from three witnesses. The applicant was the only witness called to provide evidence in support of the claim. There were two witnesses, Ms MacPhee and Mr Leavesley, who provided evidence on behalf of the employer. 17 The evidence concerning the broad chronology of events leading up to the termination of employment on 9 February, and the two telephone calls on the following day, was broadly consistent. There were various matters of factual conflict regarding points of detail in respect to the performance management meeting of 9 February, when the applicant first offered her verbal resignation. In addition, and more importantly, there was considerable conflict in the evidence about the detail of what was said between the applicant and Mr Leavesley during the second short meeting that was held immediately prior to the applicant's departure from the workplace. This important factual conflict involved an issue as to whether Mr Leavesley had inquired as to whether the applicant was certain that she wished to resign. 18 The evidence of Mr Leavesley was that he asked on two separate occasions as to whether or not the applicant was sure that she wanted to resign. The applicant's primary evidentiary material asserted that Mr Leavesley did not say "Are you sure you want to resign?". There was no dispute that during the course of this second, short meeting, Mr Leavesley provided the applicant with his business card and invited the applicant to contact him directly if she wished to discuss the matter further. 19 The important factual conflict regarding whether or not Mr Leavesley had confirmed the applicant's resignation during the second meeting, has become one significant issue central to the primary determination of this claim. There was little doubt that the employer considered that the applicant's initial verbal resignation was not something which should be accepted. The written confirmation of resignation by way of email was a different matter. In addition, the alleged subsequent further verbal confirmation made in reply to the inquiries of Mr Leavesley, would reflect a course of conduct on the part of the employer which was conscious of the need to ensure that the acceptance of any resignation was taken only after it had reasonable belief that the applicant was not acting "in the heat of the moment". 20 The resolution of this particular factual issue has been made with the assistance of verification of an important inconsistency where, despite the applicant's primary evidentiary material asserting that Mr Leavesley did not say "Are you sure you want to resign?", the applicant provided the following evidence during cross-examination: "Q. So his recollection of events there differs from your's obviously? A. Yes. Q. You mention that in your reply. I want to just put one question to you and you [sic] want you to be very certain about the answer you give. Mr Leavesley said to you, did he not, he asked you the question, "Are you sure that you want to resign?" Do you recall him asking that? A. Yes." Transcript of proceedings (01/09/05) @ Page 25.

21 This particular inconsistency in the applicant's evidence was also supported by way of examination of the applicant's material that was filed with the application document. The inconsistency about this particular point of detail ultimately secures a preference for the evidence of Mr Leavesley over that of the applicant, particularly as it relates to the detail of the conversation during the second short meeting held immediately prior to the applicant's departure from the workplace on 9 February.

THE CASE FOR THE APPLICANT 22 Mr P Newall, barrister, appeared for the applicant. Mr Newall submitted that the applicant was unfairly dismissed and sought that the Commission provide remedy by way of an award of compensation for the applicant's dismissal. 23 Mr Newall submitted that the applicant had been dismissed because the purported resignation of the applicant was not a considered and voluntary act and was therefore invalid. Mr Newall submitted that the applicant was clearly in an emotional state and therefore a resignation given in such emotional circumstances could not be properly accepted and acted upon. 24 Mr Newall made reference to the employer's acknowledgement that the initial verbal resignation given at about 2.40 pm was a "heat of the moment" resignation which it did not accept or attempt to act upon. Mr Newall submitted that the applicant's emotional state had not altered such that the subsequent written resignation and if given, the later confirmation of desire to resign, could be treated any differently to the first verbal resignation which the employer did not act upon. 25 Mr Newall stressed that the evidence that involved the inquiry by Mr Leavesley as to whether the applicant had arrived home safely was clear indication that the applicant's emotional state was still elevated such that as with the first verbal resignation, there should be no acceptance and action taken. Mr Newall submitted that the evidence that Mr Leavesley had given the applicant his business card before she left the workplace, strongly supported the proposition that the employment remained on foot, and that the position regarding the purported resignation of the applicant was not to be acted upon until it became clear that the emotional state of the applicant was such that the employer could properly confirm the resignation. Mr Newall submitted that there would have been no need for Mr Leavesley to provide the applicant with his business card if it was clear that the employment had come to an end by way of the valid, voluntary, resignation of the applicant. 26 Mr Newall said that the employer at no time had a legitimate voluntary and considered resignation that it could act upon. Mr Newall submitted that the employer subsequently sought to seize upon an opportunity rather than continue to act in accordance with the more careful approach that it had initially adopted by way of rejection of the applicant's initial verbal resignation. 27 Mr Newall made further submissions which severely criticised aspects of the procedure that the employer adopted in respect of the performance management meeting which had acted as the catalyst for the termination of employment. Mr Newall submitted that the pre-prepared warning letter and the absence of any prior advice regarding the reason for the holding of the meeting, demonstrated that the employer was acting unfairly and in a manner which was designed to provoke an outcome such as that which eventuated. 28 Mr Newall said there was further support obtained from the fact that the applicant was paid four weeks notice as opposed to the three weeks period that she had suggested. Mr Newall said that the employer truly understood that it was the initiator of the termination of the employment and felt obliged to pay out the longer contract provision of four weeks, as opposed to that which the applicant had specified in her "heat of the moment" resignation relating to a three week period. 29 Mr Newall made further submissions about the underlying intention of the employer to seek to have the applicant's position made redundant. In this respect Mr Newall submitted that the employer was driven by the underlying motivation to do away with the applicant's position, and that it had obtained a benefit by way of avoidance of any severance payment in circumstances where the applicant had offered her resignation in "the heat of the moment" and which was improperly, and unfairly accepted by the employer. 30 Mr Newall urged the Commission to find that the applicant had been dismissed, and that the dismissal was unfair and that compensation should be provided to the applicant. In this respect Mr Newall made mention that if the applicant had been paid in accordance with a properly established redundancy she would have been entitled to a payment of an amount equivalent to fifteen weeks remuneration.

THE CASE FOR THE EMPLOYER 31 Mr A Powter, solicitor, appeared for the employer. Mr Powter commenced his submissions by stating that the applicant had given an informed and voluntary resignation and therefore there was no dismissal, and thus the claim was beyond jurisdiction. Mr Powter made further submissions which urged the Commission to guard against any emotional submissions that were made on behalf of the applicant, and which were unsupported by evidence. 32 Mr Powter said that the applicant had to establish proof that there was basis for any intervention on the part of the Commission. Mr Powter said that the only evidence provided by the applicant about her alleged emotional state came from the applicant herself. Mr Powter was critical of the fact that the applicant did not call any corroborative evidence to establish that she was so emotionally affected on 9 February, that the employer should not have accepted that her resignation was given consciously and validly. 33 Mr Powter made further submissions which defended the employer's approach to the performance management meeting. Mr Powter said that the employer was entitled to deal with the complaint that had been made by two separate customers. Mr Powter said that it was important to remember that one of the customers had taken the time to make their complaint in writing. Mr Powter submitted that the applicant's reaction to the legitimate endeavours of the employer to deal with the customer complaints represented an outburst of anger, rather than any other emotional upset. 34 Mr Powter submitted that the employer had correctly hesitated before it decided to accept the applicant's resignation. Mr Powter said that it must be remembered that the employer had been presented with not one outburst involving a "heat of the moment" resignation, but three separate points in time at which the resignation was given including one in writing. 35 Mr Powter also made submissions regarding the absence of any contest from the applicant, either later on the afternoon of 9 February, or the next day on 10 February, in respect to the termination of employment. Mr Powter submitted that there could be no doubt that whatever emotional state the applicant was in, it had subsided on the following day, and yet there was no challenge to the employer's action in accepting and acting upon the applicant's resignation. Mr Powter submitted that the first the employer became aware of any challenge in respect to its actions in accepting the applicant's resignation, was when it was served with the claim for unfair dismissal. Mr Powter urged the Commission to reject the applicant's claim and find that the applicant had not been dismissed. 36 Mr Powter made supplementary submissions which contemplated a prospect that the Commission might find in favour of the applicant. In these supplementary submissions, Mr Powter indicated that compensation in accordance with sections 89(5) and 89(6) of the Act should not be made. Mr Powter submitted that the purpose of compensation was not to punish the employer or enrich the applicant. Mr Powter submitted that there could be no reliance upon a purported redundancy as some basis upon which to award compensation for an alleged unfair dismissal. 37 Mr Powter returned to his primary submissions and urged the Commission to dismiss the claim as the applicant's resignation had been clear and the employer was entitled to accept it and act upon it.

CONSIDERATION 38 The first aspect for consideration of this matter has involved the settlement of the question of contest regarding the detail of the second short meeting that involved the applicant and Mr Leavesley. As mentioned earlier in this Decision, the applicant's evidence about whether Mr Leavesley had further inquired as to whether the applicant was sure that she wanted to resign, was a matter of some important inconsistency. As a consequence of that inconsistency, the Commission has been prepared to adopt a preference for the evidence of Mr Leavesley over that of the applicant in respect to this particular conflict in the evidence. 39 The factual situation that has emerged has established that the resignation of the applicant was conveyed to the employer on three separate occasions. The initial verbal resignation occurred at approximately 2.40 pm and was clearly something that was given "in the heat of the moment". The employer, quite properly, decided to defer any acceptance of the initial resignation. Although it appeared that Ms MacPhee may have been eager to adopt an alternative approach which would have likely provided for circumstances more consistent with a provoked, and hastily provided, resignation that would have likely established an unfair constructive dismissal. 40 Instead, Mr Leavesley urged caution and hesitation before acting to accept any resignation. The applicant provided confirmation of resignation in writing and although Mr Leavesley was not immediately aware of the written confirmation of resignation, he quite properly sought to clarify the applicant's position in a calmer environment that did not include the presence of Ms MacPhee. 41 Mr Leavesley's evidence about the second meeting with the applicant included comments from the applicant which demonstrated that her decision to resign was one that was deliberate and considered. In particular, Mr Leavesley attested to the applicant providing some rationale for the three weeks notice period so as to permit the return to work of another employee. 42 These were deliberate and considered aspects of the decision to resign and not something that would be consistent with a "heat of the moment" resignation. The applicant's deliberate and considered approach to resignation is further supported by evidence that at no time on either the 9th or 10th of February, did she in any way, challenge the employer's advice that it was accepting her resignation and acting upon it. There was not one hint of challenge on 9 or 10 February to the employer's action in accepting the resignation and acting upon it. On the contrary, the applicant actually telephoned Mr Leavesley on 10 February, inquiring about details of termination payments. It was not until the applicant filed an unfair dismissal claim that the employer had any knowledge that it was acting contrary to the wishes of the applicant, as expressed verbally and conveyed in writing by the way of the email resignation. 43 There may have been some potential for misunderstanding of the position that emerged during the afternoon of 9 February because of Mr Leavesley providing the applicant with his business card. He then later telephoned indicating that the employer had decided to accept the resignation. However in the absence of any protest, what should the employer have done? 44 It is relevant to refer to some of the decided cases on constructive dismissal and "heat of the moment" resignations. The issue of how an employer should treat a resignation which appears to have been made "in the heat of the moment" was considered by the Industrial Relations Court of Australia in the case of Minato v Palmer Corporation Ltd (Minato) Minato v Palmer Corporation Ltd (1999) Industrial Relations Court of Australia, [Murphy JR], 63 IR 357. . In Minato, Murphy JR examined various Authorities that had considered the legal position of an employer presented with what might be characterised as a "heat of the moment" resignation. Murphy JR referred to the case of Kwik-Fit (GB) Ltd v Lineham [1992] ICR 183, and quoted from Wood J in that case. The extract from the Judgement of Wood J as repeated by Murphy JR in Minato, has relevance to the circumstances that were faced by the employer in this instance: "...Where 'special circumstances' arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to elapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer's risk. He runs the risk that ultimately evidence might be forthcoming which indicates that in the 'special circumstances', the intention to resign was not the correct interpretation when the facts are judged objectively". Ibid @ 362.

45 Having regard for the circumstances in this instance, it was clear that the employer was conscious of the need to hesitate before accepting the applicant's first, verbal resignation. However, as time elapsed the applicant's actions did nothing other than confirm a deliberate intention to resign. There was not one instance where the employer was given any indication that the applicant challenged the employer's decision to accept and treat the applicant's resignation as considered and valid. It would therefore seem to be fundamentally wrong that the employer would first discover that it was acting contrary to the desires of the applicant when it received notification of an unfair dismissal claim, made approximately three weeks after the termination of the employment. 46 I think it only fair that particularly because the employer had hesitated in accepting the first resignation and sought to have it confirmed, that if the applicant was to subsequently challenge the employer's purported reliance upon the resignation, the applicant was obliged to challenge that action on either 9 or 10 February. Instead the applicant gave every indication that the employer was acting consistent with her desires. 47 During an examination of a number of the decided cases on the question of constructive dismissal, I noticed a remarkable similarity between the following extract from the Judgement of Moore J, in the case of Rheinberger v. Huxley Marketing Pty Ltd, and the circumstances in this instance: "... The applicant did not take the opportunity to make clear to the Company that she did not wish to resign. Indeed she created the opposite impression." Rheinberger v Huxley Marketing Pty Ltd , (1996), Industrial Relations Court of Australia, [Moore J], 67 IR 154 @161.

48 One further aspect of consideration requires brief mention. It would appear that if the Commission was disposed to find in favour of the applicant, a paucity of evidence regarding the applicant's attempts to find alternative employment and any remuneration received in such, might create some significant dilemma for the Commission when having regard for sections 89(5) and 89(6) of the Act. 49 The applicant's claim for compensation involved a suggestion that she be paid an amount that equated with a severance payment applicable as if she had been dismissed on the basis of redundancy. In the absence of evidence upon which to formulate any other basis to provide for compensation, it would seem that an approach involving a quasi severance payment may not be a legitimate or proper basis to provide for any monetary Relief.

50 The Determination of this matter has involved a primary question as to whether or not the resignation of the applicant, as given verbally and in writing, should have been accepted and acted upon by the employer. There are many instances where although a resignation has been given, an analysis of the factual circumstances giving rise to that resignation establishes what is referred to as a constructive dismissal. 51 Upon careful review of the evidence, the Commission is not persuaded that a case had been made out to provide for the constructive dismissal of the applicant in this instance. Although the Commission can identify obvious errors with the process that the employer embarked upon with its performance management meeting, there can be no conclusion drawn that it was a process that was intended or likely to bring about the resignation of the applicant. 52 The applicant initially resigned in a "heat of the moment" reaction. Subsequently the applicant confirmed the resignation in writing and then upon further verbal inquiry by the employer, verified her considered desire to resign. The employer then decided to accept and act upon what it considered to be the proper and valid resignation of the applicant. The applicant's confirmation of a desire to resign, both by email and in further discussion with Mr Leavesley, leads the Commission to conclude that this resignation was a deliberate, voluntary and considered action.

53 Further, when the employer commenced to act in accordance with that resignation, there was no indication whatsoever from the applicant that the employer was acting contrary to the desires of the applicant.

54 The challenge to the employer's actions came at a later time, such that it could not be properly connected so that a case would be made to permit the intervention of the Commission. The disconnection in time between the resignation and the applicant's challenge to the action of the employer in accepting the resignation, contributes greatly to a finding that the applicant has not established a case that she was dismissed. 55 The applicant's employment came to an end as a consequence of her actions and the employer acted in accordance with her expressed wishes. 56 Consequently the applicant was not dismissed and therefore the claim for unfair dismissal must be dismissed. 57 The proceedings are accordingly concluded. oooOOOooo

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