Lyne v Commissioner of Police

Case for the respondent

1. In support of the Motion, the respondent relied upon evidence from Superintendent Wood who stated that, on 28 October 2019, he had signed a performance improvement plan ("PIP") for the applicant which identified a number of concerns about the applicant's conduct in the workplace including lateness, rudeness to her managers, inappropriate comments to staff members about other staff members and other areas of unsatisfactory performance. The PIP was scheduled to be implemented over a period of three months and involved mentoring, tighter supervision and additional training.
2. In or around January 2020, the applicant was informed that she was going to be investigated for allegations of misconduct, and in particular, unprofessional and inappropriate behaviour in the workplace. That investigation was to be conducted by the Administrative Officer Conduct Unit at the Professional Standards Command, which is entirely separate from the SCPAC. According to Superintendent Wood, the applicant resigned from her employment before the disciplinary process was completed.
3. On 25 May 2020, Superintendent Wood met with the applicant. Also present at this meeting were the applicant's direct manager, Jacqueline Goulding, Police Area Manager, and Chief Inspector Sean Heaney. The purpose of the meeting was to direct the applicant to attend an independent medical examination. The reason Superintendent Wood gave this direction was because the applicant had taken repeated sick leave and had regularly been late for work due to illness. According to Superintendent Wood, the SCPAC did not have sufficient information about the applicant's fitness to ensure that she could carry out her duty safely, without risk to herself or others. Further, an independent medical examination would assist in identifying the nature of any illness the applicant was suffering from, and any adjustments that could be made in the workplace, so that the applicant could sustainably permanently return to work, without recourse to further regular sick leave.
4. On 2 June 2020, Superintendent Wood issued the applicant with a written direction to attend an independent medical examination on 11 June 2020. According to Superintendent Wood, it is standard practice to issue such a direction to ensure that the employee or officer has the relevant information, understands that they are required to attend the appointment, and is also informed of the potential consequences of failing to comply with the direction and attend the appointment.
5. During the afternoon of 10 June 2020, Inspector Winkler attended Superintendent Wood's office and advised the Superintendent that the applicant had tendered her resignation in writing with immediate effect. According to Inspector Winkler, he provided Superintendent Wood with a copy of the applicant's resignation letter. Superintendent Wood had been delegated authority by the respondent pursuant to section 31 of the Police Act 1990 to accept the resignation of a member of the NSW Police Force, such as the applicant, pursuant to section 94C of the Police Act. His evidence was that he accepted the applicant's resignation with effect from that day being 10 June 2020. Section 94C is in the following terms: 94C Resignation or retirement (1) A member of the NSW Police Force may resign from the NSW Police Force by written notice to the Commissioner. (2) The resignation of a member of the NSW Police Force does not take effect until - (a) the Commissioner accepts the resignation, or (b) the member has given the Commissioner at least 4 weeks' notice in writing of the day on which the member intends to resign and the member is not under suspension from duty on that day. (3) In this section, resignation includes retirement and member of the NSW Police Force does not include the Commissioner.
6. The applicant's resignation letter was forwarded to Superintendent Wood by Inspector Winkler on 12 June 2020.
7. On 15 June 2020, Inspector Winkler forwarded onto Superintendent Wood the applicant's email set out at [8] above. Also, on 15 June 2020, Superintendent Wood was advised by Inspector Winkler of the conversation he had with Mr Wright which is referred to at [9] above. Superintendent Wood responded with words to the following effect: There was never any contention that the resignation had been submitted and accepted. As far as I was concerned there was never any contention.
8. Superintendent Wood was cross-examined by Mr Chatterjee, counsel for the applicant. The following exchanges occurred: Q. What I'm asking you is take the case of Ms Lyne and her resignation. Do you accept that you had the discretion if you so chose not to accept her resignation in that four week period? A. No. Q. So you say that your understanding of the power that was delegated to you is that you had no choice but to accept Ms Lyne's resignation? A. Unless there was issues of serious misconduct. Q. So there was no discretion open to you, for instance, to say, "I'm not going to let you resign effective immediately. I need you to serve out the four weeks' notice period"? A. No, that's right. Q. I want to try and be absolutely clear about this. You received Ms Lyne's resignation or you became aware of Ms Lyne's resignation on 10 June, correct? A. Correct. Q. And you became aware of that resignation when Inspector Winkler told you about it, correct? A. Yes. Q. And the circumstances were that he came into your office and he said to you words to the effect, "Fiona Lyne tendered her resignation," right? A. Yes. …………………….. Q. He entered your office and he said something like, "Fiona Lyne tendered her resignation in writing," something like that? A. Yes. Q. And what you immediately thought was, "Well, I must accept it"? A. Yes. Q. So as far as you were concerned, the power that had been delegated to you was a mere formality, as it were. You were the person who was required to accept it but you were required to accept it? A. I was the delegate, so yes.
9. Evidence was also given by Inspector Winkler in the following terms: Fiona Lyne 8. Ms Fiona Lyne was, until recently, a non-executive administrative employee of the NSWPF, who performed duties as a General Administrative Support Officer at Sydney City PAC. I am not sure when Ms Lyne first commenced employment with the NSWPF, but to my recollection, she has been employed with the NSWPF since around 2017. 9. In her role, Ms Lyne's duties included: (a) management of paperwork produced by police officers within the Sydney City PAC; (b) general administrative tasks, such as cataloguing exhibits; and (c) performing administrative functions to assist police officers in the performance of their duties. 10. Ms Lyne reported to the Police Area Manager, Ms Goulding, who in turn reported to Superintendent Wood. 11. I had worked with Ms Lyne prior to being appointed to the HRDO position, in my capacity as Tactical Operations Duty Officer. At that time, I was responsible for the management of exhibits at Sydney City PAC, and Ms Lyne was undertaking a variety of administrative tasks in relation to exhibits. Accordingly, we worked together and built up a rapport. 12. After I was appointed the HDRO, I became more heavily involved with Ms Lyne, notwithstanding the fact that my role was to look after the sworn police officers. This was because, as the HDRO, I was rostered to work only day shifts, which aligned with Ms Lyne's rosters, so we would see each other at Day Street Police station where we both worked together, and I was readily available to her if she needed assistance. 13. Ms Lyne regularly sought me out across the course of 2019 and earlier this year. I got the impression that she did that because she saw me as a person she could confide in and consult with, and that she did not feel like she could do that with Ms Goulding. 14. Ms Lyne regularly spoke to me across the course of 2019 about how she was not enjoying her work at Sydney City PAC and was having difficulties with her life outside of work. On a date I can no longer recall, Ms Lyne and I had a conversation in words to the following effect: Lyne: I am finding working here unworkable. I feel like there is conflict between me and Jacqui, and others. I am just unhappy here. Me: Why don't you apply for a transfer? I can help you? Lyne: I don't want to move somewhere else. Working in the city suits me. It's easy to get here from my house. 15. I had multiple conversations with Ms Lyne to the above effect across 2019. I was concerned about the fact that she seemed unhappy at work and so I made sure I was available to Ms Lyne as someone she could talk to. During these conversations, it became clear that Ms Lyne was paying a significant sum to live in Ashfield, and that this was unsustainable. We discussed alternative jobs, including the possibility of her moving away from Ashfield and pursuing a life outside of Sydney. 16. I recall Ms Lyne told me her brother lived on the South Coast, and so we looked at whether she could move there, but Ms Lyne was concerned she would not have enough family support. I also suggested she could consider relocating to the Gold Coast, particularly as her doctor was recommending lifestyle changes that would be easier to implement there, like spending more time in the sun and improving her physical health. 17. Over the course of 2019, I was aware that Ms Lyne frequently took sick leave to deal with various medical issues. There were also issues with Ms Lyne's punctuality, as she regularly was late for work, and often did not tell Ms Goulding until very late, or not at all, that she was either not coming to work, or would be turning up late. There were occasions when she would notify me instead of Ms Goulding that she would not be coming to work that day, in circumstances where I am not her direct line of report. 18. There were also a number of incidents of alleged unprofessionalism by Ms Lyne toward other staff members. I understand these disciplinary issues were investigated, but I do not know the outcome of that investigation as I had no involvement in the investigation or management of those issues. I cannot recall when I found out that Ms Lyne's behaviour was being investigated, but when I found out, I volunteered to be Ms Lyne's welfare officer, and so took responsibility to regularly check in on her welfare. 19. In December 2019, Ms Lyne was certified fit to perform her regular duties, but was unfit to perform those duties at Sydney City PAC. 20. On 7 January 2020, a temporary placement was found for Ms Lyne at Surry Hills Police Area Command, performing the same duties for a period of around three months. 21. On 27 April 2020, Ms Lyne returned to Sydney City PAC, and she performed work for just over a week without any issues, although she took a number of further days of sick leave between 27 April 2020 and 10 June 2020. 22. Based on my experience with Ms Lyne, I can say she was given a significant amount of support and assistance during her employment at Sydney City PAC, and more support than I have ever seen provided to an administrative employee of the organisation. For example, the NSWPF has a program called RECON, which is a rehabilitation program designed to get injured police officers back to pre-injury duties. In view of Ms Lyne's ongoing difficulties with her health, I spoke to the administrators of the RECON program and they agreed to make an exception and accept Ms Lyne, as an administrative employee, into the program. This gave Ms Lyne access to physiotherapy services, strength and conditioning and a psychological wellbeing program, with a focus on coping strategies. Ms Lyne undertook this program for three months and was allowed to complete the program during work time. 23 The Command was also very flexible with Ms Lyne in regards to her conditions, including managing her sick leave and regularly accommodating her turning up to work late and leaving early. Further, enquiries were made into alternative roles inside the organisation for Ms Lyne, in the hope that a location could be found where she may be happier. However, I understood Ms Lyne wanted to remain at Sydney City PAC as the location was convenient to her. 24. In addition, as a member of the NSW Police Force, Ms Lyne had access to all of the welfare support that is available to all employees, including EAP, Police Chaplaincy, Peer Support officers and a wide range of other materials and resources on the Police intranet. In my welfare conversations with Ms Lyne, I always mentioned the availability of these resources to her, in the hope she would use them. Further, I know Ms Lyne regularly confided in me and Chief Inspector Dunstan, who provided her with regular welfare support… 25. Despite the support and assistance made available to Ms Lyne, I did not observe any changes to her attitude or happiness levels across the 19 months I was HDRO prior to her resignation. I was not surprised by Ms Lyne's resignation, given how often she told me she did not enjoy working at Sydney City PAC, and because she had been discussing finding alternative employment with me regularly for at least 18 months prior. Resignation of Fiona Lyne 26. At 1:17pm on 10 June 2020, I received an email from the personal email address of Ms Lyne. The email was addressed to me, but copied in Chief Inspector Paul Dunstan, another Duty Officer at Sydney City PAC, and Andrew Wright, who I knew to be a representative of the Public Service Association (PSA). The email attached a letter, by which Ms Lyne tendered her resignation from her employment with the NSWPF… 27. I recall that, very shortly after receiving this email and letter, l printed a copy and took it to Superintendent Wood. We had a conversation in words to the following effect: Me: Boss, I've just got this email. Fiona Lyne has resigned. Wood: OK. What do we have to do next? Me: I am not entirely sure what the process is for administrative employees. I assume she will need to fill out a P1050? Wood: Yes, I agree. Can you send her a copy of the form to complete? 28. A P1050 is a form that members of the NSW Police Force are asked to complete when they resign. 29. I then went and spoke with Ms Goulding. I said words to the effect of, "Jacqui, I have just received an email from Fiona Lyne. She has resigned". Ms Goulding acknowledged this information. 30. At 2:34pm on 10 June 2020, I responded to Ms Lyne's email confirming I had received it, and attaching the P1050 resignation form for her to complete and return... 31. At 11:42am on 12 June 2020, I received an email from Ms Lyne enclosing a P1050 resignation form that she had filled out, albeit she indicated she was unable to complete the form… 32. At 11:55am on 12 June 2020, I responded to Ms Lyne's email offering to assist her by completing the resignation form over the phone… 33. At 12:12pm on 12 June 2020, I forwarded Ms Lyne's P1050 resignation form to Superintendent Wood for him to sign off… 34. I completed my shift on 12 June 2020 at 3:00pm. 35. At 3:53pm on 12 June 2020, I was sent a further email from Ms Lyne indicating that she has been advised to retract her resignation and asking what she needed to do… 36. As set out above, I was not rostered for duty at the time this email was sent to me. Accordingly, I did not receive it until the morning of 15 June 2020, when I was next rostered. 37. On the morning of 15 June 2020, I received a telephone call from Mr Wright from the PSA. To place this call in context, my recollection is that I had not read Ms Lyne's email of 3:52pm on 12 June 2020 when I received Mr Wright's call. We had a conversation in words to the following effect: Wright: Inspector Winkler, this is Andy Wright from the PSA. Me: Hi there, how can I help? Wright: I am Ms Lyne's union representative. Ms Lyne has withdrawn her resignation. I have told her to withdraw it. Me: OK. Well, as I understand it, she was supposed to attend a medical appointment last week, but she resigned. Wright: Why does that matter? Me: I am just saying. I have had a lot of conversations with Fiona over time and I have tried to be supportive. She has been unhappy for a long time. To be honest, I support her decision to resign. Wright: Nobody has been supportive of Fiona. She has been treated awfully by the Command. It was me that told her to withdraw her resignation and she has done. This has nothing to do with her medical situation. 38. A short time later, Mr Wright ended our call. 39. At 11:53pm on 15 June 2020, I forwarded the email from Ms Lyne that was sent to me at 3:53pm on 12 June 2020 to both Superintendent Wood and Ms Goulding… 40. At 12:11pm on 15 June 2020, I sent Superintendent Wood and Ms Goulding a further email outlining my discussion with Mr Wright… 41. At 12:16pm on 15 June 2020, Superintendent Wood returned a P1050 form to me by way of email with his electronic signature on the document albeit he signed it in the wrong location… I understood, from receiving that document and from a short conversation l had with Superintendent Wood around the time of receiving the email, that he had accepted Ms Lyne's resignation with effect on and from 10 June 2020, as Ms Lyne had requested.

Case for the applicant

1. In her witness statement, the applicant described the duties she performed as a GASO at the SCPAC. She also stated that, in the administration office of level 5, Day Street Police Station, she observed a "toxic and dysfunctional team" which she did not identify with. She described a "general culture of bullying, big personalities, poor work ethics, gossiping and senior management endorsed negativity". The applicant outlined a number of examples of comments made by other staff and a number of other matters which she claimed supported her assessment of the workplace culture.
2. The applicant claimed that she had been discriminated against in a number of ways due to her poor health status which she described in detail. The applicant also rejected allegations against her of poor performance and misconduct.
3. With respect to the period leading up to, and subsequent to, the applicant tendering her resignation on 10 June 2020, she gave the following evidence: Medical Referrals 48. On 25 May 2020, upon my arrival at work I was advised by PAM Goulding to attend a meeting. I was not told what the meeting was about. In the meeting was Superintendent Wood, C/Insp Heaney and Andrew Wright. At the meeting I was served a letter dated 19 May 2020 from Tania Madgwick A/Regional Business Manager of Central Metropolitan Region, referring me to Sonic Health Plus to determine my capacity for employment... 49. On or shortly after 27 May 2020 I received an email from SHP asking me to confirm a date and time for the IME. I scheduled an appointment for 11 June 2020 with Occupational Physician, Dr Andrew Frean. The email also had dates/times for a psychiatric assessment. As my referral made no mention of a psychiatric assessment, I contacted Ms Tania Madgwick to query my psychiatric referral. 50. As a result of me querying solely the psychiatric referral, I received a letter dated 4 June 2020, directing me to attend the 11 June 2020 appointment, which was entirely my intention, and directing me to arrange a psychiatric assessment with a SHP psychiatrist… Resignation 51. I was on leave from 9 June to 10 June 2020. On the morning of 10 June 2020, I woke up and thought that I could not go on with the never ending nonsense of working with the Respondent. I felt that my tolerance had been eroded by the constant conduct of the employer to manage me out of the organisation. In contemplation of the idea of having to return to work, I thought my options were to either kill myself or resign. I thought on the two options and decided with the latter. I could not bear the thought of another day at work. Working with the Respondent, namely the performance management, disciplinary investigation and medical referral, drove me to this state of mind. 52. In my deeply emotional and uncertain state of mind I resolved to draft the resignation on the morning of I0 June 2020. 53. At I: l 7pm on 10 June 2020, I emailed my letter of resignation to Insp Winkler. Carbon copied to the email were Chief Inspector Paul Dunstan and Andrew Wright… 54. At 2:34pm on 10 June 2020, I received an emailed from Insp Winkler attaching a 'P1050 - Resignation/ Notice of Retirement from NSW Police Force' form for me to complete… 55. On 11 June 2020, I spoke with Industrial Officer, Andrew Wright. We had a conversation to the following effect: Wright: You don't want to do this Fiona; you will get through all this. Lyne: Andy, I don't have any other option, this won't end. Wright: Please just sleep on it. 56. After speaking with Andrew Wright and a friend about my decision to resign, I felt overwhelmingly confused as to my decision. The enormity and stress of potential long term unemployment was starting to set in. 57. On 12 June 2020, I attempted to complete the P1050 resignation form sent my Insp Robert Winkler. I recorded on the form that the reason for my resignation was "sustained bullying and harassment by Police Area Manager, Jacqueline Goulding, regarding my health". I also recorded on P1050 Form "There is no survey for me to complete? I have not read any policies on what my options would be other than to resign. I have been forced to resign because the work environment has been so hostile"… 58. At 11:42am on 12 June 2020, I emailed the incomplete P1050 form to Insp. Winkler… 59. At 11:55am on 12 June 2020, I received an emailed from Insp Winkler advising that he can assist me complete aspects of the 'resignation survey'… 60. In the afternoon of 12 June 2020, I had conversations separately with Andrew Wright and a friend. Both encouraged me to retract my resignation, which I didn't realise at the time that I could do. 61. By this time and in light of these conversations, I was feeling more stressed and realising the enormity of my decision and the effects it was going to have on me financially and my ability to gain another public sector role. Accordingly, I followed Andrew Wright's advice and at 3:52pm on 12 June 2020, I emailed Insp. Winkler a request to retract my resignation… 62. Despite communicating my distressed and uncertain state on mind in my resignation letter and my incomplete P1050, I did not receive any contact from the Respondent to check on my health and wellbeing. 63. At 4:33pm on 15 June 2020, on Andrew Wright's instructions, I emailed PAM Goulding a request that I be placed on leave without pay or any paid leave available for 11 June to 16 June 2020… 64. I did not receive a response to this email. 65. On 16 June 2020, I received a call from Insp. Winkler, during which a conversation occurred to the following effect: Winkler: Do not come back to work tomorrow Lyne: On what grounds? Winkler: We have advice from general counsel that we do not have to accept your retraction and your resignation has been accepted. Don't enter the station. 66. At the time of my resignation l was struggling with mental health issues. I have been suffering with underlying anxiety and stress for some months, which were compounded by the performance improvement plan, alleged misconduct and the referral to Sonic Health Plus… 67. I am ready, willing and able to return to work, and have been since 17 June 2020.
4. Annexed to the applicant's witness statement was a psychologist's report on the applicant dated 10 December 2019 addressed to Mr David Joyce, Psychologist, Head First Psychology, and cc'd to Dr Andrew Teh of Your Doctors, the general practice which the applicant attended. The author of the report was Mr Sam van Meurs, psychologist. The report contained the following: Fiona Lyne is a participant in our NSW Police Force Reconnect Program at our RECON centre in Surry Hills. Fiona was referred by her command on the 29th August 2019 to assist her in managing physical fatigue, anxiety, stress, and poor sleep. Reconnect involves officer undertaking some psychological consults and targeted strength and conditioning during work hours to assist with their mood and psychosocial functioning. Given that Fiona was not currently engaged in psychological treatment at the time of the referral, I initially saw her weekly to work with her on building strategies and resilience to assist with a challenging period however due to intermittent poor health Fiona's attendance has been less regular of late and have recommended in previous correspondence to Dr Teh that she seek external psychological support. Background Fiona is single and lives alone in the inner west of Sydney. She has worked as an administrative officer within NSWPF for 2 years. She advised that in 2018 she was witness to the aftermath of an attempted suicide in the immediate surrounds of her workplace, and despite being understandably impacted by this event at the time, did not experience any ongoing trauma-related symptoms from this incident. Fiona reported having a difficult year so far, having experienced pneumonia earlier in the year and having significant physical fatigue following this illness. However she did improve and then returned to work once well enough. Since first attending Reconnect on the 10th September 2019 initially, Fiona has developed some Major Depressive Disorder symptoms which in my mind would constitute a Major Depressive Episode including low mood, poor sleep, loss of energy and pleasure, and feelings of hopelessness. Despite some transient suicide ideation at times, there was no intent or planning. She has also exhibited Adjustment Disorder with Anxiety symptoms in response to some interpersonal conflict in the workplace, including nausea in anticipation of work, and fears about the future which stem from a perception of feeling trapped and unfairly managed. Her symptoms appear to have developed in direct response to some negative feedback and managerial engagement recently. She engaged the union however found this process to not offer her any substantial support in resolving her workplace scenario. She is currently under a Performance Improvement Plan, which she reports is based on unsubstantiated allegations. Support from RECON While I have offered some psychoeducation such as anxiety management, sleep hygiene, solution-focused counselling and behavioural activation, I do believe it would be in her best interests to be treated externally due to the discrete nature of the program, which usually runs for 12 weeks.

Submissions of the respondent

1. In support of the Motion, the respondent filed written submissions which outlined the various communications between the parties between 10 and 16 June 2020 and then stated as follows (footnotes omitted): Jurisdictional Issues 14. It is a matter of fact that the Applicant resigned her employment on 10 June 2020. Her email and 2-page letter attachment unambiguously constitute a resignation. The Commission's task is to determine whether the applicant's unambiguous resignation nonetheless amounted to a dismissal for the purposes of s.84 of the Industrial Relations Act 1996 (NSW) (IR Act). 15. The test for determining whether an employee was "dismissed" is not controversial, and has been variously stated as follows: (a) in Smith v Director General of Education (1993) 51 IR 204 the Full Bench of the Industrial Court of NSW applied an "ordinary meaning" to the term and referred to an employee being "sent away from employment" and "the termination of services by the employer without the employee's consent"; (b) in Allison v. Bega Valley Council (1995) 63 IR 68 the Full Bench of the Commission said the real inquiry should involve an analysis of what has occurred and whether the employer behaved "in such a way as to render the employer's conduct the real and effective initiator of the termination"; (c) in recent times, in Moore v North Sydney Council [2018] NSWIRComm 1062 Commissioner Constant (as she then was) found that "the correct test is whether when considered objectively, the respondent's actions were the effective initiator of the termination of employment" . 16. The question of onus does not strictly arise in determining jurisdiction. That said, there must be information before the Commission which allows it to be satisfied that it has jurisdiction to hear the Applicant's claim, and the assessment of the adequacy of that material will vary according to the nature of the case. Understood in this context, the Applicant bears a significant evidentiary onus. 17. The Applicant clearly blamed the Respondent for the fact that she seems to have been unhappy in her employment, but it is not clear at all what it is the Applicant alleges the Respondent actually did that made the Respondent the real and effective initiator of the termination (or similarly, what it did to send her away, or that was tantamount to a call for her resignation). 18. So far as the Respondent understands the case against it, the Applicant might claim: (a) that she was placed in a position by the Respondent where she 'had no option other than' to resign her employment; and/or (b) that she should have been permitted to withdraw her resignation when she attempted to do so more than 48 hours after sending her 2-page resignation letter. No option other than to resign 19. The Applicant's resignation must be considered in the context of the surrounding circumstances and the conduct of the Respondent prior to the resignation. 20. It was not the case that the Applicant was told to resign, or she would otherwise be dismissed, as was the case in Parker (Parker v Secretary Department of Education and Communities [2015] NSWIRComm 1020) and other cases in this space. 21. The apparent preceding circumstance was that the Applicant had been directed at a meeting on Monday 25 May 2020 to attend an independent medical examination. On Thursday 4 June 2020 (almost two weeks later), she was sent a formal confirmation in writing of the direction to attend, and an appointment was scheduled for Thursday 11 June 2020 - being almost three working weeks after the Applicant was first advised of the direction. 22. The Applicant resigned on 10 June 2020, the day before the scheduled appointment. 23. There is no basis for the Commission to find that the requirement to attend an independent medical examination amounted to 'undue pressure' on the Applicant to resign, or was consistent with a desire by the employer that such resignation be forthcoming, as contemplated in McCabe (McCabe v NSW Police Service (1996) 99 IR 361), viz: Did the employer here behave in such a way as to render its conduct the real and effective initiator of the termination. In other words, was the resignation, the ostensible act of termination, given freely and without any undue pressure or was it in effect a response to and consistent with a desire by the employer that such resignation be forthcoming? 24. Similarly, there is no basis for the Commission to find that the direction to attend the independent medical examination initiated the termination and/or left the Applicant with no reasonable option but to resign. Chronologically, the direction preceded the resignation, but for at least the following reasons, the direction did not leave the Applicant without any option but to resign her employment: (a) by any objective measure, the direction did not render it inevitable that the employment would cease; (b) if the applicant was aggrieved by the direction, but wanted to continue in employment, there were ample avenues available to her to raise her grievance, including with the assistance of her union; and (c) almost three working weeks passed between the time the applicant was advised of the direction and the scheduled examination. 25. In this regard, the Commission can note the evidence of Inspector Winkler that the Respondent had previously complied with medical restrictions regarding her fitness for work, and the evidence of Superintendent Wood that the Respondent was seeking to ensure a sustainable and permanent return to work, without risk to the Applicant's safety. 26. As to any general claims by the Applicant of being unsupported in the workplace, it is clear from the evidence of Inspector Winkler that: (a) Inspector Winkler acted as a support person for the Applicant and regularly checked in on her welfare; (b) the Applicant was offered support mechanisms, such as access to RECON, not ordinarily made available to administrative officers; (c) a number of flexibilities were offered to the Applicant in relation to her working conditions; and (d) the Applicant had access to all of the welfare support that is available to all employees, including EAP, Police Chaplaincy, Peer Support officers and a wide range of other materials and resources on the Police intranet. Withdrawal of resignation 27. A resignation given in the heat of the moment that is sought to be withdrawn shortly thereafter may constitute a constructive dismissal if the withdrawal is not accepted by the employer. 28. However, the Applicant's resignation was not tendered in the heat of the moment, nor did she try to withdraw it shortly thereafter. 29. There is no extreme pressure in the immediate time preceding the Applicant's resignation. Indeed, the evidence shows that the Applicant had been discussing resigning her employment for a significant period prior to doing so. 30. The Applicant's decision to resign was considered and unambiguous. Dismissal of the Application 31. There was no dismissal of the Applicant as contemplated by sections 83 and 84 of the IR Act because there was no act by the Respondent that brought about termination of the Applicant's services. 32. The Application must be dismissed.

Submissions of the applicant

1. Written submissions filed on behalf of the applicant ("Applicant's Summary of Case") outlined the various health issues that had beset the applicant during the course of her employment with the NSW Police Force as well as the PIP that she had been placed on and the misconduct allegations of bullying and harassment which had been made against her.
2. The submissions also canvassed the communications between the parties between 10 and 15 June 2020 and continued as follows: B Questions that Arise 3. The respondent in effect contends (respondent's outline of submissions ("RS") at [14]) that the applicant "resigned her employment on 10 June 2020." 4. The applicant's primary case, by reason of the terms of section 94C of the Act which provides that ''the resignation of a member of the NSW Police Force does not take effect until ... the Commissioner accepts the resignation" disputes that the applicant's employment ceased on 10 June 2020. 5. In the alternate, the applicant contends that she: 5.1. Had no option other than to resign; or 5.2. Should be allowed to withdraw her resignation, given the circumstances in which it was given. 6. The following questions therefore arise on the respondent's motion: 6.1. Did the applicant have power to resign "effective immediately"? 6.2. If not, what effect (if any) did the applicant's letter of 10 June 2020 or the return of her unsigned P1050 form on 12 June 2020 have on her employment with NSW Police? 6.3. Did the applicant successfully retract her resignation on 12 June 2020, or prior to its purported acceptance by Superintendent Wood on 15 June 2020? 6.4. Finally in the alternate, was the applicant constructively dismissed or in the further alternate, should she be permitted to withdraw her resignation? C Relief Sought 7. On the applicant's primary case, and as the respondent contends that the only effective cause of the cessation of the applicant's employment was her resignation, success on this motion should ipso facto have the effect of determining that the applicant's employment did not at any time cease. 8. That is there will no longer be any need for a determination as to whether the applicant's employment should be "reinstated" as the automatic effect of a finding that the resignation was successfully withdrawn prior to its acceptance will mean that her employment did not at any time cease. D Statutory Framework 9. By reason of her appointment pursuant to section 82A of the Act, the applicant was at the relevant time: 9.1. A "member of the NSW Police force" within meaning of that phrase as used in the Act; and 9.2. A "non-executive administrative officer" as used by Part 6A of the Act (as it was then in force). 10. Notwithstanding the removal of Part 6A of the Act, following amendments to the Act by the Government Sector Employment Legislation Amendment Act 2016 (NSW), the applicant remains a "member of the NSW Police force" and is therefore subject to the terms of section 94C which relevantly reads: (The submissions then set out section 94C of the Police Act. See [17] above) E Resignation Ineffective 11. The applicant therefore was statutorily barred from resigning "effective immediately", with the result that her letter of 10 June 2020 could not have had the effect of terminating her employment. 12. The return of the P1050 form similarly could not have resulted in the immediate termination of her employment. 13. In relation to that form, that conclusion is strengthened by the fact that: 13.1. It was unsigned, on the express basis that the applicant was unaware as to what alternate options she had; and 13.2. The form itself identifies that resignation is conditional on acceptance by the respondent. 14. The applicant in writing retracted that resignation on 12 June 2020. That was confirmed verbally on her behalf with Inspector Winkler by Andrew Wright of the Public Service Association. 15. The respondent's evidence, taken at its highest, is that Superintendent Wood purported to accept that resignation only after its retraction. 16. In circumstances where resignation could not take effect without acceptance by the respondent, by reason of the statutory framework, "withdrawal of the notice prior to that acceptance or endorsement will validly withdraw the notice" (The Contract of Employment, Irving, at [11.68] (2012)). Alternatively, and as the applicant was required to give 4 weeks notice, her purported resignation was invalid, repudiatory, and could be withdrawn prior to acceptance (Irving at [11.69]). 17. There was no statutory bar to the applicant withdrawing her resignation. In those circumstances, its retraction meant that there was no "resignation" for Superintendent Wood to act on and accept at the time that he purported to exercise his delegated authority under section 94C. 18. The automatic result of this is that the applicant's employment has continued uninterrupted since 12 June 2020. F Constructive Dismissal 19. Further and to the extent that the respondent had some power or discretion not to accept the applicant's retraction of her resignation, the exercise of that discretion not to accept that retraction and instead accept her resignation in plain terms means that the respondent was the effective initiator of the termination. 20. If an employee does not wish to separate from her employer, and the employer has a discretion to either keep the employee in employment or exercise a power to remove her from employment, an exercise of that power to separate her from employment means in substance that the employer is the initiator of the termination, even if in form that separation takes place through the "acceptance" of a resignation. 21. Further, and as made clear from the applicant's letter of 10 June 2020, and her unsigned P1050 form, the primary cause for the issue of her resignation was the asserted conduct of her manager, Ms Goulding, in bullying and harassing her which cumulatively over time resulted in applicant being placed in a position where she considered her ongoing employment to be untenable. 22. The applicant in her statement provides a detailed account of the difficulties she experienced in particular at the Day Street Police Station, and an apparent translation of her illness into performance issues by Ms Goulding, through viewing the applicant's need for sick leave and flexibility as a performance matter rather than a matter that required accommodation. 23. In this regard it is not correct to identify the requirement to attend at the medical assessment as being the matter that left the applicant with no option but to resign her employment, but rather the final event in a slowly cascading series of events that cumulatively led to a position where the applicant was left in no position but to resign. G Withdrawal of resignation 24. The history of conflict identified in the applicant's statement between her manager, Ms Goulding, and herself also provide necessary context to the Commission's consideration as to whether, in the alternate, the applicant should be permitted to withdraw her resignation. 25. Firstly, it is clear that the respondent did not consider the applicant's letter of 10 June 2020 to be effective, as demonstrated by the requirement that the applicant complete the P1050 form. The earliest that an effective resignation could therefore have taken place was on receipt by the respondent of the unsigned P1050 form, which for the reasons identified above did not in clear and unambiguous terms identify an intent to resign. Indeed it was not signed on the express identification that the applicant was uncertain of what her alternatives were, given her inability to access NSW Police Force policies. 26. Secondly, the applicant was experiencing significant distress at the time of resignation, and was on her evidence under significant stress and anxiety for some period leading up to 12 June 2020. Her anxiety was sufficiently apparent to the respondent that she was allowed to participate in a program (RECON) reserved for injured police officers. 27. Indeed, and concurrent with these events were requirements that the applicant be assessed medically (including psychologically) for fitness for her duties. 28. A psychological assessment from the RECON program dated 10 December 2019 noted… that: Since first attending Reconnect on the 10th September 2019 initially, Fiona has developed some Major Depressive Disorder symptoms which in my mind would constitute a Major Depressive Episode including low mood, poor sleep, loss of energy and pleasure, and feelings of hopelessness. Despite some transient suicide ideation at times, there was no intent or planning. She has also exhibited Adjustment Disorder with Anxiety symptoms in response to some interpersonal conflict in the workplace, including nausea in anticipation of work, and fears about the future which stem from a perception of feeling trapped and unfairly managed. Her symptoms appear to have developed in direct response to some negative feedback and managerial engagement recently. She engaged the union however found this process to not offer her any substantial support in resolving her workplace scenario. She is currently under a Performance Improvement Plan, which she reports is based on unsubstantiated allegations. 29. Thirdly, the distress the applicant was facing (including the significant financial pressure a resignation would cause) were put in the plainest terms to the respondent at the time that the applicant first attempted to tender her resignation, in both the 10 June 2020 letter and in the unsigned P1050 form. 30. The applicant sought to withdraw her resignation a matter of hours after sending through the unsigned P1050 form. In all circumstances, the retraction was made within a reasonable time of the issue of the attempted resignation.

Submissions in reply of the respondent

1. In reply to the applicant's written submissions, the respondent put the following (footnotes omitted): Section 94C of the Police Act 5. The Applicant disputes that her resignation on 10 July (sic June) 2020 was effective by reason of the terms of s 94C of the Police Act. 6. Section 94C is the statutory provision that gives effect to the common law right of any employee to resign from their employment. In particular, s 94C(1) provides that any member of the NSW Police Force may resign by written notice to the Respondent. The provision gives statutory validity to a resignation by an employee where that resignation occurs in writing and is given to the Respondent (or, plainly enough, any officer with the imprimatur of the Respondent). 7. That is what occurred in the case of the Applicant on 10 June 2020 by way of her letter to Inspector Winkler. The resignation on 10 June 2020 plainly had statutory validity. 8. This provision regarding the statutory validity of a resignation is followed by the separate provision in s. 94C(2). That provision relates only to the timing of the resignation, and in particular, the time at which it will come into effect. As is apparent from the plain words of the statute, the resignation will take effect when the Commissioner accepts the resignation, or when the member has given four weeks' notice in writing and is not under suspension from duty. 9. Section 94C(2) does not alter the common law and allow a member/employee to give less than four weeks' notice and then pick and choose whether to unilaterally withdraw their resignation. 10. The timing provision of s 94C(2) does not impact on the validity of a resignation given under s 94C(1). 11. The Applicant submits at AS[11] that she was somehow prevented from resigning "effective immediately", and submits that her letter of 10 June 2020 was ineffective because she purported to resign "effective immediately". 12. The difficulty with the Applicant's Summary is that it conflates the action of resigning with the legal effect of that action on the employment (see AS[16]). Those two things are separate, as the distinct subclauses in s 94C make clear. The operation of s 94C(1) is not expressed to be subject to s 94C(2). 13. The fact that the Applicant purported to resign without providing notice may have impacted on when the resignation took effect (s 94C(2)), but it did not affect the validity of her act of resignation (s 94C(1)). 14. The Applicant's resignation was delivered by written notice and her notice was complete. 15. The fact that she did not provide four weeks' notice did not render the resignation invalid. This is plain from the fact that the legislation countenances a resignation being accepted even without four weeks' notice being provided, as in fact occurred in this case. 16. Importantly, s 94C does not confer upon the Applicant any express right to unilaterally withdraw her resignation. 17. If the Applicant's analysis were accepted, it would lead to remarkable results: (a) if an employee purported to resign with immediate effect, then never returned to work and never communicated with the employer again, the resignation would be invalid, and could not be accepted, which would result in the employee remaining employed until otherwise dismissed at the employer's initiative; and (b) If the same employee gave one hours' notice to resign then the legal consequences, on the applicant's case, would seem to be dramatically different. 18. Notwithstanding that the Applicant's resignation was accepted by Superintendent Wood on 10 June 2020, the Applicant's submission (AS[17]) that as at 15 June 2020, there was no "resignation" for the Respondent to act on, is not supported at law. 19. In Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28 the Commission was required to consider very similar circumstances, in which the applicant purported to withdraw his resignation prior to its acceptance. Kavanagh J analysed the resignation, and the purported withdrawal, as follows (at [74]-[75]): The Industrial Relations Commission has considered a number of similar circumstances as has the Australian Industrial Relations Commission. In Ngo v Link Printing Pty Ltd (1999) 94 IR 375, the Full Bench of the Australian Industrial Relations Commission examined withdrawal of a resignation and said: [16]… The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in par 8). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (at 110).. [17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (at 110-111). I, therefore, reject the basic proposition relied upon by the applicant that Paige is authority for the proposition any resignation tendered under a statutory provision which requires an approval can be withdrawn in the period of time before it is accepted by the employer. As Gray J said in Birrell v Australian National Airlines Commission (1984) 9 IR 101, withdrawal of a notice of termination of a contract of employment can only be effective by consent of both parties. Therefore, words uttered in the heat of the moment (by either an employee or employer) where the act of resignation was not in truth a manifestation of the personal autonomy of the individual; or where the resignation was not dealt with in a reasonable time and in the normal course; or where there is evidence the resignation was not a conscious choice, not a voluntary act, then there may be grounds for allowing an exception to the general rule under a contract of employment that a withdrawal of a resignation can only be effectted by consent of both parties. In a circumstance, however, where there was a deliberate interference by the employer in the employee's resignation process to frustrate a withdrawal, there was a determination to allow the withdrawal (Paige). However, if in the normal course of events the resignation is considered within a reasonable time and in the normal course there is no obligation, if the resignation was not offered in the "heat of the moment" to accept a withdrawal of the resignation. I am of the view justice requires a consideration of the withdrawal if the withdrawal is proffered within the reasonable period of time that is necessary for the consideration of the resignation, but there is no obligation on an employer to accept a withdrawal of a resignation. The initial decision to resign, I have found, was not because of stress or emotional disturbance. (emphasis added) 20. It is plain that, contrary to the Applicant's Summary, s 94C does not have the effect that a resignation can unilaterally be withdrawn in the period of time before it is accepted by the employer. 21. The fact there is no 'statutory bar' (AS[17]) to withdrawing the resignation is not to the point. The Applicant resigned on 10 June 2020, in satisfaction of s 94C(1). The case law (set out above, and further below) sets out clearly the limited time, and circumstances, in which a resignation can be withdrawn, and they are not enlivened in this case. By operation of s 94C(2), that resignation would take effect if accepted by the Respondent (or his delegate). In this case, it was accepted on 10 June 2020 causing the resignation to take statutory effect that day. 22. The Applicant's Summary does not engage with the more problematic question of how or when an employee can "withdraw" a resignation that is complete. According to the terms of the Applicant's resignation, her employment ended on 10 July (sic June) 2020. Her attempt to "withdraw" her resignation was actually a request to be re-employed. As Moore J found in The Australian Wool Selling Brokers Employers' Federation v The Federated Storemen and Packers Union of Australia (1976) 176 C.A.R. 884, a purported withdrawal of notice of termination is in law no more than an offer to treat for a new contract; if that offer is not accepted, the original notice continues and the employment is terminated. The Applicant's circumstances are slightly different insofar as the original notice was complete, but the notion of the Applicant making an invitation to treat is apposite - particularly when understood in the context that the employer has no obligation at law to accept an employee's request to withdraw a resignation notice. 23. Further, and contrary to AS[15], Superintendent Wood did not "purport" to accept the resignation after the retraction. The evidence of Superintendent Wood is that he accepted the resignation when he became aware of it on 10 June 2020. That was, unsurprisingly, why Inspector Winkler then sent the Applicant resignation paperwork to complete. Put another way, it would be illogical for Inspector Winkler to have asked the Applicant to complete resignation paperwork if her resignation had not been accepted. But even if the Commission were to conclude the resignation was not accepted until 15 June 2020 when Superintendent Wood signed the P1050 (notwithstanding there is no requirement for such a formality to be undertaken in order for there to be 'acceptance' for the purposes of s. 94C(2)), the outcome is no different. The Applicant was not at large to unilaterally withdraw her resignation. It was available to be accepted on 15 June 2020 and the acceptance was put beyond doubt when the P1050 form was signed that day. 24. The Applicant submits at AS[18] that the Applicant's employment has "continued uninterrupted since 12 June 2020". Obviously, if the Applicant believes this to be correct at law, then she should immediately withdraw her s 84 application. Constructive Dismissal 25. The Applicant's Summary at AS[19]-[20] are entirely wrong at law. 26. The proposition that the exercising of a discretion not to allow an employee to withdraw an otherwise valid resignation makes the employer the initiator of the termination (AS[19])) cannot be correct as a matter of logic, let alone law. The relevant sequence of events begins with the employee resigning and then is followed by the employer not accepting the withdrawal of the resignation. The Respondent's passive response to the Applicant's resignation action cannot initiate the cessation of employment. 27. There is no evidence before the Commission that the Respondent was taking any steps to terminate the employment, and in fact, the Respondent was not doing so. It is for the Applicant to prove that the Respondent was the initiator of the termination by words or actions that caused her to have no choice but to resign. Put another way, if the Applicant's Summary was correct, then every person who resigns where the Respondent accepts the resignation (or another public sector employer who accepts a resignation under statute) would have the right to bring an unfair dismissal claim. Plainly, that is not correct. 28. Lewandowski makes it clear that, even if a resignation is retracted before it is accepted, there is no obligation on the employer to accede to the withdrawal. It requires the consent of both parties for the withdrawal to be effective. In this case, there was no such consent forthcoming. But that withholding of consent does not amount to a termination at the employer's behest. It remains the Applicant, who took the first step by resigning, who was the real and effective initiator of the termination of employment. 29. As to AS[21]-[23], this appears to be the extent of the Applicant's submissions as to why the Applicant had no option but to resign. In effect, the Applicant says that Ms Goulding's behaviour caused her to consider her employment was untenable. However, a closer analysis of the Applicant's evidence is warranted. 30. The Applicant gives evidence of a 'toxic culture' at SCPAC. At its highest, in support of these bald assertions, she leads evidence of an email exchange from March 2018, over two years prior to her resignation, in which she complains that her colleagues were involving themselves in her personal life by checking on her welfare, and which illustrates that an email was sent to staff about that behaviour of which the Applicant complained. 31. The Applicant then suffered from a series of illnesses across the course of 2019. In October 2019, the Applicant was placed on a Performance Improvement Plan. That document itself… articulates the various reasons why she was placed on that Plan. The Applicant has led no evidence to challenge any of those bases for the Plan. The Applicant's belief that the Plan was "to set me up to fail" (at [33]) is not consistent with the fact there was an objective (and undisputed) basis for the Plan's implementation. It was not for the Applicant to 'respond' to the Plan (at [35]-[36]), and in any event, her 'response' was to assert she was not given procedural fairness (to which she was not entitled when all that was done was the implementation of a Plan) and was not allowed to read a chronology of concerns kept by her supervisor about the Applicant's performance (which she was equally not entitled to). 32. The Applicant then refers to an investigation into her alleged misconduct. As is clear from the Applicant's evidence, there was an investigation being conducted. She resigned at around the same time the investigation was concluded. She did not know the outcome of the investigation when she chose to resign. As was found in Lewandowski (at [60]), the Applicant's concern over being investigated cannot be re­interpreted as a dismissal at the employer's initiative. 33. In terms of her decision to resign, the Applicant says she woke up on 10 June 2020 and "could not go on with the never ending nonsense of working with the Respondent" (at [51]). This reveals that it was the Applicant who concluded she no longer wished to work with the NSW Police Force. The Applicant's suggestion that she was 'managed out' of the organisation is not supported by any objective evidence. The Respondent was not taking any steps to 'manage out' the Applicant, but rather: (a) had historically managed her performance without taking any disciplinary action, consistent with their managerial prerogative; (b) had historically responded to allegations of a toxic culture made by the Applicant; (c) investigated allegations of misconduct made against the Applicant, without any suggestion as to what disciplinary action may result, even if the allegations were substantiated; and (d) had directed the Applicant to attend an independent medical examination to ascertain what adjustments needed to be made to assist her perform her role without posing a risk to her health. 34. This final point is critical. The fact the Respondent directed the Applicant to attend an independent medical examination with a view to gathering evidence to assist in managing her ongoing welfare in the workplace is entirely at odds with the suggestion she was being 'managed out'. It may be the Applicant perceived this to be an attempt to manage her out, but objectively, that is plainly not the case. Indeed, the converse is true; the Respondent was trying to find a way to assist the Applicant in remaining in her employment. 35. It should also be noted that the Applicant had, on two occasions in the lead up to her resignation, failed to attend independent medical examinations that had been booked for her. It is in this context that the direction to attend the independent medical examination on 11 June 2020 must be understood, and gives further colour to the Applicant's decision to resign her employment the day prior to the independent medical examination and seek to withdraw that resignation the day following the independent medical examination. Put simply, her evidence that she took advice to retract her resignation on 12 June 2020 defies credulity. Her resignation was a calculated (albeit ill-advised) step to try and avoid the third attempt to have the Applicant attend a medical examination. 36. The Applicant says she was in a deeply emotional and uncertain state of mind at the time she drafted her resignation letter. That is not reflected in her resignation letter, which is thoughtfully and carefully drafted. Further, the Applicant has not led any evidence that she was suffering from any medical condition at the time that may have affected her state of mind. In circumstances where she has led a significant volume of medical evidence, that omission is stark. 37. As to AS[25], the fact the Applicant was asked to complete the P1050 form does not suggest the Respondent considered the resignation ineffective; the converse is true. If the Respondent considered it ineffective, there would have been no utility in having the Applicant complete what is a purely administrative form and checklist for resigning employees. It should be noted the form itself also advises employees that they must provide four weeks' notice of termination, unless their Commander approves a shorter time, consistent with the submissions above, and what, in fact, occurred. 38. AS[25] is also not correct in suggesting that: (a) an effective resignation could not have taken place till after receipt of the P1050 form, as this is not a requirement of s. 94C(1); and (b) the P1050 form did not identify an intent to resign, which is a submission that can be rejected based on any objective reading of the Applicant's comments on the form, and her email correspondence that supplemented it. 39. As to AS[26]-[28], it is unclear how the Applicant's fitness for duties, and views expressed about that fitness over six months prior to the resignation, have any relevance to the question of her seeking to withdraw her resignation. 40. The attempt by the Applicant (AS [30]) to characterise her withdrawal of the resignation as happening mere hours after sending the P1050 form ignores the fact that over 48 hours passed after she resigned on 10 June 2020. That is far too long after the event, and the resignation letter is too articulate, to conclude that the resignation was given in the heat of the moment, or that it was withdrawn promptly. 41. None of the circumstances outlined in Lewandowski (at [75], citing Birrell) that would permit the Applicant to withdraw her resignation unilaterally apply in this case. In particular: (a) the Applicant did not provide her resignation orally, in the heat of the moment. She took the time to compose a two-page resignation letter to Inspector Winkler outlining the reasons for her resignation; (b) the resignation was dealt with in a reasonable time and in the normal course. It was presented to the Respondent's delegate the same day, who accepted it, with the relevant administrative paperwork completed two days later; (c) the Applicant has led no evidence whatsoever to suggest her resignation was anything other than a conscious choice and voluntary act. 42. The Applicant resigned on 10 June 2020. The resignation was accepted that day, or thereafter; the precise timing is unimportant as the resignation could not be withdrawn unilaterally, but only mutually. There was no consent to the withdrawal of the resignation. The Applicant's suggestion that she had no alternative but to resign belies the fact that, two days after her resignation, she expressed a desire to return to the same employment that she now contends she had no alternative but to leave. 43. The Applicant was not dismissed by the Respondent. The Application must be dismissed. Did the employment cease at all? 44. As to AS[7]-[8], as the Respondent previously noted when this motion was set down for hearing separately to the substantive proceedings, a determination by the Commission that it has jurisdiction to hear these proceedings does not automatically result in orders for reinstatement. If it is concluded that there is jurisdiction, a separate hearing may be required to determine if reinstatement is an appropriate remedy. 45. To the extent the Applicant seeks what seems to be, in effect, a declaration that the Applicant's employment never ceased, consistent with her primary case, there are two difficulties: (a) firstly, if the Applicant's employment never ceased, then she cannot have been 'dismissed' for the purposes of Part 6 of Ch 2 to the IR Act. If the Applicant was not dismissed, then the Commission is not seized of jurisdiction for the reasons articulated in the Motion, and the originating Application must be dismissed; and (b) secondly, this Commission does not have jurisdiction to order declaratory relief, being a power that resides only in the Supreme Court of NSW. If the Applicant was seeking some form of declaration or other form of relief in the statutory form of the prerogative writs, those are remedies that can be awarded by the Supreme Court, but not in this jurisdiction.

Withdrawal of resignation

1. Under the common law, once a valid notice of resignation has been given by an employee it cannot be withdrawn except by mutual consent of the parties. In Birrell v Australian National Airlines Commission (1984) 5 FCR 447, Gray J reviewed the authorities on this issue and concluded as follows (at 457): These authorities all support the view that unilateral withdrawal of a notice of termination of a contract of employment is not possible. In principle, this conclusion must be correct. The purpose of providing in a contract for a period of notice of termination is to enable the party receiving the notice to make other arrangements. An employee given notice by his or her employer has a period of time in which to seek another job; an employer who receives notice has time to arrange for a substitute employee. It would be harsh if arrangements so made during the running of the notice could be disrupted, and parties could be held to their contracts by unilateral withdrawal of the notice at the last minute. Such withdrawal, if possible, could lead to an employee being bound by contracts of employment with two employers, or an employer being bound by contracts of employment with two employees, each being required to give notice to one or the other in order to be extricated from this position, or possibly to suffer the requirement to forfeit or pay wages for a period of time. In my view, I should lean against the adoption of any principle which could lead to such unfortunate consequences, and I should follow the authorities which tend to establish that withdrawal of a notice of termination of a contract of employment can only be effected by consent of both parties. This conclusion is consistent with authority to the effect that unilateral withdrawal by a landlord of notice to quit is not possible: see Tayleur v Wilding (1868) LR ; 3 Exch 303.
2. His Honour then dealt with an exception to this general rule where notice of termination had been given in the "heat of the moment" and was withdrawn "immediately the heat died down". In the case considered by his Honour, Martin v Yeoman Aggregates Ltd [1983] ICR 314, the timeframe between the giving of the notice and its withdrawal was five minutes. For reasons which will be further developed later in this decision, the "heat of the moment" exception to the general rule has no application to the facts of the present case.
3. The common law principle stated at [30] is capable of being modified by statute, for example, in areas of public sector employment where there is a requirement that a resignation, in order to be effective, must be accepted by the employing authority.
4. In State of New South Wales v Paige (2002) 60 NSWLR 371 the Court of Appeal (Spigelman CJ, Mason P, Giles JA) considered the situation of the respondent, a school principal, who had, on 26 August 1997 been charged with a breach of discipline under the Teaching Services Act 1980, completed and submitted to the District Superintendent a form entitled "Teachers Resignation / Retirement" on 13 October 1997 nominating the date of cessation of teaching as 2 March 1998. By letter of 16 December 1997, the respondent wrote to the Department withdrawing what he called his "notice of retirement" and indicating that he intended to remain in the job for another two or three years.
5. In this matter, the employment of the respondent was governed by the Teaching Services Act. Section 78 of that Act was in the following terms: 78 Vacation of position An officer of a Teaching Service shall be deemed to have vacated the officer's position if: (a) the officer dies, or (b) the officer resigns the officer's position by writing signed by the officer and delivered to the appropriate Director-General and the officer's resignation is accepted by that Director- General.
6. With respect to the respondent's withdrawal of his notice of termination, Spigelman CJ stated the following: 277 Subject to any contractual or statutory provision to the contrary, the act of resignation from employment, or from membership of an organisation, is a unilateral act that takes effect in accordance with its terms and does not depend upon acceptance by the person or body to whom the resignation is directed. This common law principle is a reflection of the significance the common law has always attached to personal autonomy. Where this principle applies, unilateral withdrawal of a resignation or notice of termination is not possible. ………………………. 280 There are four alternative bases upon which it might be concluded in the present case that the principle that a resignation cannot usually be withdrawn does not apply: (i) That s 78 constitutes a statutory modification of the common law so that acceptance is required before a resignation takes effect. (ii) That the exception to the common law principle suggested in some case law, permitting withdrawal of a resignation made in the heat of the moment, applies in the present case. (iii) That the practice that had developed in the Department to permit the withdrawal of a resignation, a practice which may have contractual force, can be relied upon by the respondent. (iv) That the resignation did not have effect because it had not reached a person with authority to receive it on behalf of the Crown. 281 The common law principle that a resignation may not be withdrawn can be modified by statutory provision. (See, for example, G J McCarry, "Termination of Employment Contracts by Notice" (1986) 60 Australian Law Journal 78, especially at 80 and the examples set out by Windeyer J in Marks v Commonwealth.) If a statute provides that a resignation does not take effect until acceptance, then the common law principle that a resignation is a unilateral act does not apply and a resignation may be withdrawn. 282 In the context of public sector employment it is often the case that the provisions of a contract and of a statute exist side by side. The distinction between persons who occupy an office and those persons who are employees is often of significance. (See generally G J McCarry, Aspects of Public Sector Employment Law (1988) Sydney, LBC, Ch 2.) The creation by the Teaching Services Act of "positions" is a statutory equivalent of the common law concept of an "office", that may exist side by side with a separate regime regulating conditions of employment. The issue is whether s 78, expressed in terms of a vacancy in a "position", extends to encompass the termination of the contractual relationship. 283 In the specific context of a contract of employment, the principle that a resignation cannot usually be withdrawn serves important purposes. In a judgment that has often been referred to with approval (Birrell v Australian National Airlines Commission (1984) 5 FCR 447), Gray J said (at 458): (His honour then cited the passage from Birrell which is set out at [30] above) 284 The submissions in this Court were not directed to the interrelationship between the occupation of the "position" under the Teaching Services Act and the status of persons as Crown employees. Similar issues arise elsewhere in the public service under different statutory regimes. In such a context, this Court ought not, in the absence of submissions directed to the issue, determine whether or not the occupation of a "position" and the employment relationship are in some manner coincident, so that s 78 ought to be construed to modify the common law principle with respect to withdrawal of a resignation.
7. Section 78 of the Teaching Services Act refers to the resignation from an "officer's position" rather than from employment. As can be seen from the above extract, his Honour determined that, due to the particular statutory scheme which governed the employment of the respondent in that case, the Court of Appeal "ought not, in the absence of submissions directed to the issue, determine whether or not the occupation of a "position" and the employment relationship are in some manner coincident, so that s 78 ought to be construed to modify the common law principle with respect to withdrawal of a resignation" (at [284]). This left open the question as to whether section 78 of the Teaching Services Act had modified the common law position in relation to the unilateral withdrawal of a resignation from a "position" as opposed to withdrawal of a resignation from employment in the Teaching Service, assuming those two were not "in some manner coincident".
8. With respect to the operation of section 78 of the Teaching Services Act in the context of the particular facts of this case, Mason P stated (at [354): 354 Section 78 is quite explicit in stipulating that the resignation from the position could not take effect until it had been both delivered to the Director- General of Education and accepted by that Director-General. Neither event happened before the resignation was withdrawn. In the absence of submissions to the contrary based upon the legislation (as distinct from the common law principle), I am prepared to hold that it was open for the respondent to withdraw the resignation in the circumstances of this case where the processing of the resignation was deliberately held back by the respondent's superiors pending disciplinary action by the Director-General. I do not have to decide what would be the situation if the notice were withdrawn before being dealt with by the Director-General within a reasonable time and in the normal course. Neither happened here. The "Department's" delay and deliberate stalling gave the respondent a locus penitentiae which he accepted by withdrawing the resignation (cf G J McCarry, "Termination of Employment Contracts by Notice" (1986) 60 Australian Law Journal 78, at pp80-81).
9. It appears that the President's acceptance of the respondent's unilateral withdrawal of his resignation in this case was largely influenced by the deliberate holding back of the processing of the respondent's resignation.
10. The third member of the Court of Appeal, Giles JA, considered that the respondent's resignation took effect in accordance with its terms despite his purported withdrawal (at [388]).
11. The judgements of the Court of Appeal in Paige do not assist the applicant in the present matter in establishing an entitlement, as at 12 June 2020, for her to unilaterally withdraw the resignation she had tendered two days earlier, even if it were the case that her resignation had not, at that time, been "accepted" by Superintendent Wood pursuant to section 94C of the Police Act. The judgements in Paige are not authority for the proposition being put by the applicant in this case to the effect that section 94C of the Police Act has modified the common law with respect to the unilateral withdrawal of a resignation to the extent that a reasoned and well-constructed letter of resignation, not given in the "heat of the moment", may nevertheless be unilaterally withdrawn at any time up until its acceptance even in circumstances where the resignation is being processed in a timely manner.
12. In Marcus Lewandowski v NSW Police Force [2009] NSWIRComm 28, the applicant had, on 3 September 2007, resigned from the NSW Police Force after learning of a possible investigation into an incident in which he was involved in a hotel. Subsequently, on 14 September 2007, the applicant sought to withdraw his resignation. The respondent contended that it was under no obligation to grant the applicant leave to withdraw his resignation. Consequently, the applicant asserted that he had been constructively dismissed.
13. In unfair dismissal proceedings brought pursuant to section 84 of the Industrial Relations Act 1996, the applicant argued that Paige was authority for the proposition that, where a statutory scheme required that a resignation be accepted in order to take effect, the resignation could be unilaterally withdrawn by the employee before it was accepted.
14. In her decision, Kavanagh J reviewed at length the judgements of the Court of Appeal in Paige and then stated as follows: 74 The Industrial Relations Commission has considered a number of similar circumstances as has the Australian Industrial Relations Commission. In Ngo v Link Printing Pty Ltd (1999) 94 IR 375, the Full Bench of the Australian Industrial Relations Commission examined withdrawal of a resignation and said: [16] . . . The relevant law was the subject of extensive consideration by Gray J in Birrell v Australian National Airlines Commission (referred to in par 8). The conclusion to be drawn from that case is, we think, clear - a unilateral withdrawal of a notice of termination of a contract of employment is not possible (at 110)... [17] In Birrell, Gray J referred to Martin v Yeoman Aggregates Ltd [1983] ICR 314, a decision of the Employment Appeal Tribunal (UK), in which it was held that words of dismissal spoken in the heat of the moment were ineffective if withdrawn immediately the heat had died down. Gray J said that he regarded this decision as confined to its facts and therefore as not extending beyond permitting the withdrawal of words uttered in the heat of the moment, when those words are retracted swiftly (at 110-111). I, therefore, reject the basic proposition relied upon by the applicant that Paige is authority for the proposition any resignation tendered under a statutory provision which requires an approval can be withdrawn in the period of time before it is accepted by the employer. 75 As Gray J said in Birrell v Australian National Airlines Commission (1984) 9 IR 101, withdrawal of a notice of termination of a contract of employment can only be effective by consent of both parties. Therefore, words uttered in the heat of the moment (by either an employee or employer) where the act of resignation was not in truth a manifestation of the personal autonomy of the individual; or where the resignation was not dealt with in a reasonable time and in the normal course; or where there is evidence the resignation was not a conscious choice, not a voluntary act, then there may be grounds for allowing an exception to the general rule under a contract of employment that a withdrawal of a resignation can only be effected by consent of both parties. 76 In a circumstance, however, where there was a deliberate interference by the employer in the employee's resignation process to frustrate a withdrawal, there was a determination to allow the withdrawal (Paige). However, if in the normal course of events the resignation is considered within a reasonable time and in the normal course there is no obligation, if the resignation was not offered in the "heat of the moment" to accept a withdrawal of the resignation. I am of the view justice requires a consideration of the withdrawal if the withdrawal is proffered within the reasonable period of time that is necessary for the consideration of the resignation, but there is no obligation on an employer to accept a withdrawal of a resignation. The initial decision to resign, I have found, was not because of stress or emotional disturbance. 77 In the circumstance before me, I find the resignation was a voluntary act. Further, the circumstance in which it was withdrawn are relevant. Firstly, there was a request it be placed "on hold". Its form was discussed with the employee who then chose to unconditionally withdraw the resignation. The applicant was fully employed in a favourable alternative employment. Discussion with the applicant and documentation reveal he wished to withdraw simply because he changed his mind. 78 I accept both the resignation and the notice of withdrawal were dealt with in a reasonable period of time in the normal course of the conduct of the Police Force and under its normal procedure. There was no legal obligation on the Police Force to accept the withdrawal. The withdrawal was, as a matter of fairness, however, given consideration but it was not supported. I find the resignation was, on the facts, a manifestation of the personal autonomy of Mr Lewandowski. The resignation was accepted. There was no obligation on the employer to accept the withdrawal. A withdrawal of a resignation under a contract of employment where there are legislative provisions guiding a resignation requires the consent of both parties. 79 Having found there was no constructive dismissal of the applicant and that the resignation was given consideration within a reasonable period of time within the normal course of business of the Police Force and the withdrawal was given consideration but that in law, there was no obligation on the part of an employer to accept a withdrawal of a resignation (if not offered in the heat of the moment, or one which circumstances persuade was not a conscious decision of an employee), I find no unfairness in the circumstances surrounding the termination of the applicant's employment with the NSW Police Force by resignation. There was no harsh, unreasonable or unjust conduct by the employer which allows me to conclude the applicant was dismissed by the NSW Police Force.
15. In the present matter, the applicant's resignation was tendered in writing on 10 June 2020. The letter of resignation was a detailed and thoughtful exposition of the reasons why the applicant was resigning. There is no suggestion that this was a "heat of the moment" decision by the applicant.
16. The respondent in the present matter has argued that Lewandowski was wrongly decided and "is inconsistent with the decision by the President because at 75 what her Honour Justice Kavanagh is doing is taking the reasoning from Birrell and applying it to an argument as to statutory modification of the common law principle" (T07/09/20 p54 L38-41). I disagree. What her Honour did at [75] of her decision was to reject the submission that "Paige is authority for the proposition any resignation tendered under a statutory provision which requires an approval can be withdrawn in the period of time before it is accepted by the employer". Her Honour then identified a range of circumstances where the common law position with respect to the unilateral withdrawal of a resignation as stated in Birrell would not apply. An example of such a circumstance would be a resignation given in the "heat of the moment".
17. There is some dispute between the parties as to whether the applicant's resignation was accepted by Superintendent Wood, as delegate for the respondent, on 10 June 2020 or at some time after the applicant had purported to withdraw her resignation on 12 June 2020. There is nothing in the Police Act and, in particular, in section 94C, which requires any formal process to be followed to signify acceptance of a resignation. I accept Superintendent Wood's evidence that he accepted the applicant's resignation as soon as he was made aware of it by Inspector Winkler on 10 June 2020. However, even if the resignation had not been accepted before the applicant purported to withdraw it on 12 June 2020, it makes no difference to the outcome of this matter. In either case, the applicant's resignation, once given, could not be unilaterally withdrawn absent the type of circumstances outlined by Kavanagh J in Lewandowski at [75], none of which arise in this case.
18. It follows that I reject the submission put on behalf of the applicant that, by failing to accept the applicant's withdrawal of her resignation, the respondent became the real initiator of the termination of the applicant's employment. No authority was cited in support of such a novel proposition.
19. It also follows that I reject the submission to the effect that, having withdrawn her resignation as she was entitled to do, there was no resignation and the "automatic result of this is that the applicant's employment has continued uninterrupted since 12 June 2020" (applicant's written submissions paragraphs 17-18 at [28] above).
20. For completeness, I should add that nothing in the report of Mr van Meurs (at [25] above) supports the conclusion that, as at 10 June 2020, the applicant's mental state was such that her decision to resign was anything other than a conscious choice and a voluntary act on her part.

Resignation ineffective

1. It has been submitted on behalf of the applicant that the effect of section 94C of the Police Act was that she "was statutorily barred from resigning 'effective immediately', with the result that her letter of 10 June 2020 could not have had the effect of terminating her employment". I reject this submission. In doing so I note that the applicant's covering email sent to Inspector Winkler at 1.17pm on 10 June 2020 used the term "effective Immediately", whereas the attached letter of resignation states "My last day of employment will be today". Little, if anything, turns on this distinction.
2. Section 94C provides two pathways out of the NSW Police Force for a member wishing to resign.
3. In reverse order, subsection 94C(2)(b) provides that a resignation does not take effect until "the member has given the Commissioner at least 4 weeks' notice in writing of the day on which the member intends to resign and the member is not under suspension from duty on that day". Putting aside the issue of suspension from duty, this subsection provides for resignation with four weeks' notice without any requirement for acceptance, or any other scrutiny or consideration, of the resignation by the Commissioner, or his delegate.
4. Alternatively, subsection 94C(2)(a) provides that a resignation does not take effect until the Commissioner, or his delegate, accepts the resignation. As previously stated, there is nothing in this provision which sets out the manner in which a resignation must be accepted in order for it to be effective. Further, there is no timeframe specified for consideration of a resignation before it is accepted but the judgement of the President of the Court of Appeal in Paige demonstrates the potential consequences of undue delay in the consideration and processing of a resignation. There is nothing in the wording of subsection 94C(2)(a) which would prevent a resignation expressed to take effect immediately or from the date it was sent and received, as occurred in this case, from being accepted by the Commissioner or his delegate as soon as it was received.
5. The evidence of Superintendent Wood, which I accept, was to the effect that he accepted the applicant's resignation as soon as he was made aware of it by Inspector Winkler on 10 June 2020 which satisfied the applicant's indication that her resignation was "effective immediately" and that her "last day will be today".
6. I reject the proposition that subsection 94C(2)(a) of the Police Act rendered the resignation of the applicant ineffective or invalid.
7. It was submitted on behalf of the applicant that her failure to return a signed P1050 form in some way rendered her resignation incomplete or otherwise ineffective (applicant's written submissions paragraphs 12-13 at [28] above). It was further submitted that that the respondent did not consider the applicant's letter of 10 June 2020 to be effective, as demonstrated by the requirement that the applicant complete the P1050 form (applicant's written submissions paragraph 25). I reject these submissions. The completion of a P1050 form by a departing member of the police force is nothing more than an administrative process whereby the respondent gains information about the resignation.
8. Could it be said that a failure to complete and return a signed P1050 form has the effect of rendering an otherwise unexceptional resignation null and void with the effect that the employment relationship continues contrary to the understanding of both parties? I think not. This administrative step or process can, in no way, impact upon the effectiveness or validity of the resignation itself.

Constructive dismissal

1. At paragraphs 21-23 of the applicant's written submissions (at [28]) it is put that the primary cause for the issue of the applicant's resignation was the asserted conduct of her manager, Ms Goulding, in bullying and harassing her which cumulatively over time resulted in the applicant being placed in a position where she considered her ongoing employment to be untenable. The requirement for the applicant to attend a medical assessment was identified as "the final event in a slowly cascading series of events that cumulatively led to a position where the applicant was left in no position but to resign".
2. In Allison v Bega Valley Council [1995] 63 IR 68 a Full Bench of the Commission (Peterson and Marks JJ, Connor CC) stated (at 72-73): 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.
3. A Full Bench of the Commission (Wright J, President, Staff J, Stanton C) in Maher v Department of Corrective Services (NSW) [2006] 151 IR 102 heard an appeal from a decision of Commissioner Connor in Maher v Department of Corrective Services (NSW) [2005] NSWIRComm 1127 in which the Commissioner rejected the applicant's claim that he had been constructively dismissed. The Full Bench at [17] quoted the following passage from the decision of Commissioner Connor at [12]: As the Full Bench confirmed 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, ie 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 with Ms Anderson the view that Mr Maher's decision to resign or retire was, in the end, taken on his own volition.
4. The Full Bench could not discern any error in the decision of Commissioner Connor.
5. The decision of the Full Bench in Allison set the test for constructive dismissal at a much lower level than the classic "resign or you will be sacked" scenario. Nevertheless, on the test in that case, the Commission will still need to consider whether the applicant's resignation was given freely and without any undue pressure.
6. I have taken all of the matters that the applicant has placed before the Commission as factors that caused her to resign at their highest in favour of the applicant's claim. Taken collectively, they do not constitute behaviour by the respondent such as to render the employer's conduct the real and effective initiator of the termination of the contract of employment.
7. What was said to be the "the final event in a slowly cascading series of events" was the requirement for the applicant to attend a medical assessment which, given her admitted sick leave record, could not be regarded as unreasonable. At that point, the applicant had the option of attending the medical appointment. Instead, she chose to resign. That she had the option of not resigning and remaining in employment is reinforced by the fact that two days later, after receiving advice from her union, the applicant sought to withdraw her resignation and remain an employee of the respondent.
8. The applicant was not constructively dismissed. Her unfair dismissal application cannot succeed.

Orders

1. The Commission makes the following orders (1) The Application for Relief in relation to Unfair Dismissal filed by or on behalf of Fiona Lyne on 16 June 2020 is dismissed. (2) These proceedings are terminated. John Murphy Commissioner

Amendments 20 January 2021 - Paragraphs 60 & 62 changed to Italics DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 January 2021