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[2008] AIRC 102
General information, not legal advice.
Australian Industrial Relations Commission
2008-03-20
Original judgment source is linked above.
s.643 application for relief in respect of termination of employment
Summary - whether termination at the initiative of the employer - s.642(4) of the Act - whether resignation "forced" - authorities - distinguishing between species of employer conduct - how attract jurisdiction - does reference to "force" change approach of pre-Workchoices authorities?
[1] On 11 January 2008, Lynette Hastie ('the Applicant') filed an application under sections 643(1)(a) and 659 of the Workplace Relations Act 1996 (Cth) ('the Act') in relation to the termination of her employment with Impress Group Food Cans.
[2] On 21 January 2008, the Respondent filed a filed a Form R28 Notice of Employer's Appearance (in which it also corrected the name of the Respondent, stating it was not Impress Group Food Cans but Impress Australia Pty Ltd).
[3] On the same day, the Respondent also filed a Notice of Motion to Dismiss the Application for Want of Jurisdiction on the basis that the termination of the Applicant's employment was not at the initiative of the Respondent for reason that the Applicant resigned her employment ('Motion to Dismiss for Want of Jurisdiction'). In effect, the Respondent sought a determination of this jurisdictional issue in the context of s.642(4) of the Act, which reads as follows:
"For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer."
[4] A conciliation conference was listed for 31 January 2008, but as the Motion to Dismiss for Want of Jurisdiction as subsequently notified potentially affects both the s.643(1)(a) and s.659(2)(f) grounds of the application, the conciliation conference was cancelled pending the outcome of the Motion to Dismiss for Want of Jurisdiction.
[5] As the parties to this matter have previously been before me for dispute resolution dealing with identical facts, the parties were provided with an opportunity for either party to, without explanation, have the Motion to Dismiss for Want of Jurisdiction be heard and determined by another member. Both parties indicated to me that they had no objection to me hearing and determining the matter.
[6] This matter was heard before me in Brisbane on 17 March 2008.
[7] The following witnesses gave evidence on behalf of the Respondent:
[8] The Applicant herself gave evidence on her own behalf.
[9] The Applicant worked in the end-making area of Amcor since 1996, up until 31 October 2007, where the food can division of Amcor, was transmitted to the Respondent under a sale of contract. [1] The Respondent subsequently offered employment to the Applicant, which was accepted. The Applicant's employment with the Respondent commenced on 1 November 2007.[2]
[10] That said, on 10 August 2004 the Applicant twisted her ankle whilst at work. The investigation into this injury identified a pre-existing degenerative arthritic condition. [3]
[11] Following a graduated return to work the Applicant resumed her original duties on 28 September 2004. [4]
[12] For reasons that are not immediately relevant, on 23 July 2007 the Applicant submitted a WorkCover claim in relation to the incident on 10 August 2004. Some short time later, and after the Applicant had returned from a period of leave, [5] the Applicant's ankle injury flared up, arguably in the context of some modifications to her duties.[6] Amcor referred the Applicant to a musculoskeletol physiotherapist, whose diagnosis states that Ms Hastie, at that time, had presented with foot pain following the completion of a small number of shifts, and that he had recommended a more limited and sedentary suitable duties program.[7] Amcor, as her then employer, provided a modified, light duties assignment for mid July up until 2 October 2007.
[13] The Applicant was subsequently referred to the Respondent's medical advisor who in turn recommended an orthopaedic surgeon, on the assumption that surgical intervention may provide some remedial benefit for what was described as:
"[…] chronic hind foot arthritis which is symptomatically impeding her ability to work." [8]
"Work has highlighted the natural progression of her degenerative pathology and is associated (with but not primarily causal to) the flare."
"The natural progression of the underlying degenerative pathology limits her capacity. The demands of work have highlighted her functional limitation." [9]
[15] The medical advisor went on to state that the Applicant was incapacitated from work because of the condition and that the limitation was not "time related" but "dependent upon the nature of the activities performed by" the Applicant [10]. Further, the medical advisor, in response to the question:
"Is Ms Hastie at risk of sustaining an aggravation or exacerbation if she were to return to the physical demands of her role and the current medical condition?"
[16] On 2 October 2007, following what appear to be discussions with the Applicant, Amcor wrote to her formally in the following terms:
"The requirements placed on Amcor Food Cans under its duty of care and very clear and I refer specifically to the following sections of within the Workplace Health and Safety Act 1995.
An employer has an obligation to ensure the workplace health and safety of each of the employer's workers at work.
A person in control of a workplace has the following obligations - (a) to ensure the risk of injury or illness from a workplace is minimized for persons coming onto the workplace to work.
On the basis of the report from Dr Graeme Edwards of Health for Industry and also that you have made limited improvement whilst on suitable duties we have serious concerns that your employment with Amcor Food Cans will create risks to your health and safety.
Based on the information that we have it is essential that we ensure your health and safety whilst at Amcor Food Cans. We are there unable to continue to accommodate you whilst you are suffering from this medical condition. If at any point in time you believe you are able to return to work at full capacity including hours and duties we will arrange for you to be reassessed by Dr Graeme Edwards." [11]
[17] Amcor therefore requested the Applicant to avail herself of any available leave and that should she feel she had returned to full capacity she can be reassessed. [12] The evidence from Amcor's Human Resources was that:
"Amcor considered that it would be irresponsible to return Ms Hastie to her usual job until those risks of further injury to her were significantly reduced, or alternative duties could be identified. Amcor was then unable to identify any suitable duties." [13]
[18] At or about this time the Applicant lodged a dispute through the AMWU with this Commission.
[19] On 31 October 2007, the Applicant's employment with Amcor ceased when the Food Can Division of that company was transferred to the Respondent. [14] It appears the Respondent offered new employment to many former Amcor employees including the Applicant. The Applicant accepted an offer of employment with the Respondent on 23 October 2007. The Applicant commenced employment with the Respondent on 1 November 2007.[15]
[20] Mr Weier, the Respondent's Operations Manager, stated that:
"Since Ms Hastie had, while employed by Amcor, worked on machines in the end making area, which had been transferred to Impress as part of the business assets being transferred from Amcor to Impress under the sale of the business referred to above, it was Impress' intention to continue Ms Hastie's employment as a machine operator in that area." [16]
"It was Impress' understanding that each former Amcor employee who accepted Impress' offer of employment would, upon commencing employment with Impress, retain the entitlements which they had accrued in respect of annual leave, personal/carer's leave and long service leave during employment with Amcor […]." [17]
[22] The Respondent recognised the Applicant's pre-existing entitlements (45.51 hours of annual leave, 7.5 hours of personal/carers leave and 356 hours of long service leave). [18]
Impress Australia Pty Ltd was now the Respondent. As part of the dispute resolution procedures the Respondent conducted a survey of the range of jobs available within its organisation in an attempt to accommodate the Applicant. Though it sought the assistance of an occupational services consultant, it claimed, with some authority, in the end, that it was unsuccessful in identifying or constructing a range of duties that were within the Applicant's training, experience and physical competencies. In essence, the Respondent identified all available positions and then sought to have a vocational therapist align those with the Applicant's transferable skills and physical competencies. The Applicant was unsuited to any of the 18 sedentary positions available with the Respondent. [19]
[23] On 21 December 2007 the Respondent directed correspondence to the Applicant in the following terms:
"As previously advised, Ms Hastie is still employed by Impress, i.e. Impress has not terminated her employment. The position she has held at Impress is still available to her if she can provide written medical evidence that she is able to perform the duties of that position. Impress has stood her down without pay (subject to any appropriate paid leave accrued being available to her) until such time as
(b) there becomes available at Impress another position for which she is both qualified and medically fit.
Impress regards the stand-down as effective for an indefinite period, but reserves the right to review its decision to stand Ms Hastie down, and to review her continuing employment with Impress." [20]
[24] On that same day, the Applicant wrote to the Applicant in the following terms:
"I, Lynette Dulcie Hastie of […] is writing to inform Impress that as of the 21st December 2007 I am here by giving notice of my resignation. Due to the unforeseen circumstances of the past few months and the meeting held with the commissioner on 20th December 2007 Impress has stated that I have been stood down from my place of employment indefinitely. As the issues have not been resolved I have been given no other option to resign and to pursue what further avenues are available to secure a future of myself and my family." [21]
[25] The Applicant contends for purposes of these proceedings that the Respondent was:
"standing me down from my employment, without pay, indefinitely, I resigned from my employment expressly stating that I had no other option. […] The employer had forced me into a position where I had to resign my employment if I was to earn an income. I could not accept the offer of $2000 reimbursement for training, as I could not at that time afford to pay for training up front and wait to be reimbursed upon completion." [22]
[26] The reference to a $2,000.00 payment for retraining was an element of an offer made in settlement of the dispute the Applicant had filed and which was subject to various other conditions. It does not constitute itself a variation of the pre-existing conditions on which the Applicant was employed, and it was never accepted by the Applicant in settlement in any event. [23]
[27] The issue before me is a narrow one: in essence I am asked to determine whether the Applicant's employment was terminated at the initiative of the employer, such that the jurisdictional precondition to an application under s.643(1) of the Act is satisfied for the purposes of s.642(1) of the Act (as it relates to the definition of 'termination').
[28] Both sides, moreover, have focused on the operation of s.642(4) of the Act in the context of the resignation letter of 21 December 2007 for purposes of establishing whether there was a termination at the initiative of the employer.
[29] On 2 October 2007, the Applicant's then employer, Amcor, notified her that because of the view it took of her medical condition, that it would no longer offer her any duties and would no longer remunerate her. Instead, the then employer required her to take leave, utilising whatever accruals were available from that purpose. The leave was of an indefinite duration, and the resumption of her paid duties would only be possible once she demonstrated she was again fit for the duties for which she was employed.
[30] The Operations Manager for Amcor at the time was Mr Justin Weier.
[31] The Applicant challenged this decision of her employer, first through the agency of the AMWU which sought local resolution to the decision, and then through a dispute lodged with the Commission.
[32] The dispute conference held in the Commission was held on 2 November 2007.
[33] The Applicant ceased as an employee of Amcor on 31 October 2007 and commenced employment with the Respondent on 1 November 2007, following an offer of employment and acceptance thereof (see above).
[34] The Applicant was offered employment as a machine operator. She accepted that offer on 26 October 2007.
[35] Notwithstanding this, the Respondent continued the same treatment of the Applicant as did Amcor.
[36] This is not perhaps that unusual. The Operations Manager for Impress Australia Pty Ltd (the Respondent) was Mr Justin Weier, who had been retained in the same position as he had had with Amcor. And the Respondent at all times "knew the facts of Ms Hastie's current lack of physical capacity to perform the inherent requirements of her job." [24]
[37] Consequently, from the first day of her employment with the Respondent, upon acceptance of an offer of employment as a machine operator, with specified duties and a specified rate of pay, the Applicant was required to adopt the same status as she had with her immediately prior employer.
[38] Neither party sought to make anything of this point. For example, it is not argued that upon the Respondent employing the Applicant the Applicant's employment immediately was terminated for reason of the conditionality to which that employment was subject. Further, the decision of Amcor concerning the Applicant, in the context of the transmission of business, is to be taken as a decision of the Respondent.
[39] After 1 November 2007 the Respondent maintained the employment conditions that had prevailed prior to that time under Amcor, and both parties accepted that these conditions remained contested and subject to the dispute resolution process (under which further vocational assessments and job identifications were undertaken).
[40] That said, by December 2007, it became apparent to the Applicant that her employer would not (or in its terms, could not) provide alternative duties to that of machine operator for the purposes the Applicant was employed. The Applicant's physical other competencies had been assessed and aligned with available positions with the company, and no synchronicity was identified and no alternative position was able to be offered.
[41] The Applicant then faced circumstances which included the following:
[42] In such circumstances, [26] the Applicant resigned her employment with the Respondent, stating:
"As the issues have not been resolved I have been given no other option but to resign and to pursue what further avenues are available to secure a future of myself and my family" (sic) [27]
[43] Can the resignation be construed to be a termination at the initiative of the employer?
[44] The authorities in this area prior to the passage of the Workchoices legislation posed a number of variables that need to be considered and/or conditions to be satisfied in order to determine whether a resignation can be construed as a termination at the initiative of the employer.
[45] These variables or conditions have been much discussed in this matter as to their intent and precise nature of their guidance, and I note some of them as follows, as drawn from the relevant judgments and decisions:
"[Where] the action of the employer is the principal contributing factor which leads to the termination of the employment relationship [...]" [28]
"The act of the employer results directly or consequentially in the termination of the employment" [29]
"That is, had the employer not taken the action it did, the employee would have remained in the employment relationship" [30]
"[…] a termination must result from some action on the part of the employer intended to bring the employment to an end." [31]
"There can be a termination at the initiative of the employer if the cessation of the employment relationship is the probable result of the employer's conduct." [32]
"Where it is the immediate action of the employee that causes the employment relationship to cease, it is necessary to ensure that the employer's conduct, said to have been the principal contributing factor in the resultant termination of employment, is weighed objectively. The employer's conduct may be shown to be a sufficiently operative factor in the resignation for it to be tantamount to a reason for dismissal. In such circumstances, a resignation may fairly readily be conceived to be a termination at the initiative of the employer." [33]
"Where the conduct of the employer is ambiguous, and the bearing it has on the decision to resign is based largely on the perceptions and subjective response of the employee made unilaterally, considerable caution should be exercised in treating the resignation as anything other than voluntary." [34]
"We think that all of the circumstances and not only the act of the employer must be examined. These […] will include the circumstances giving rise to the termination, the seriousness of the issues involved and the respective conduct of the employer and the employee." [35]
"In determining whether a termination was at the initiative of the employer an objective analysis of the employer's conduct is required to determine whether it was of such a nature that resignation was the probable result or that the appellant had no effective or real choice but to resign." [36]
[46] It appears to me that the authorities in this area prior to the commencement of the Workchoices legislation sought to differentiate cases which attract the jurisdiction under Part 12 of the Act and those that do not. That is, it happens, that the authorities seek to distinguish between cases in which, on one hand:
[47] It is only when these latter circumstances are met that it can be said that the employer's conduct or course of conduct was the principal operative reason for the resignation, such that the termination can be said to have been at the initiative of the employer.
[48] The employer's conduct (when it is not evidenced was intended to bring about the resignation directly) must be conduct that is in some way or in some manner oppressive or repugnant in the ordinary course, and/or else so impacted on the volition of the employee such that the resignation was a reasonable response to that conduct in all the circumstances.
[49] If this were not the case, then it would be difficult to distinguish between many instances of voluntary resignations which arise from a discretionary judgment of the employee, and resignations which are the result of the conduct of the employer. This is because, for all practical purposes, most decisions by an employee to resign their employment arise from the conduct of the employer, in some manner or form. That is, employer conduct is causally responsible at some level for most resignations.
[50] But not all the species of the conduct of an employer have the probable result of the employee's resignation or make the resignation, on an objective view, a reasonable response to the employer's conduct. It is only a sub set of employer conduct that ought to attract the remedy against a harsh, unjust or unreasonable termination of employment based on a termination at the initiative of the employer. [37]
[51] If this is so, in what manner then has the amended statutory provisions affected this approach to determination whether an employee was terminated at the initiative of the employer or if the employee resigned voluntarily?
"For the purposes of this Division, the resignation of an employee is taken to constitute the termination of the employment of that employee at the initiative of the employer if the employee can prove, on the balance of probabilities, that the employee did not resign voluntarily but was forced to do so because of conduct, or a course of conduct, engaged in by the employer."
[53] The Supplementary Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 states:
"295 Proposed subsection 170CD(1C) would provide that, for the purposes of the termination of employment provisions, an employee's resignation is taken to constitute a termination at the initiative of the employer only if the employee can prove, on the balance of probabilities, that he or she did not resign voluntarily, but that he or she was forced to resign because of the conduct (or a course of conduct) engaged in by the employer.
296 Subsection 170CD(1C) is intended to reflect the common law doctrine of 'constructive dismissal', reinforcing that the onus of proof in a case of alleged constructive dismissal rests upon the employee to demonstrate that there was a termination at the initiative of the employer."
[54] Putting aside the onus specified in the Act, the critical issue here is whether the inclusion of the adjective "forced" affects in any way of the above discussion of the authorities as they were before the introduction of the Workchoices legislation.
[55] To describe the conduct of the employer as forcing an outcome suggest that the conduct in some manner or form compelled or mandated or obliged or necessitated the resignation of the employee. These seem to be the common dictionary meanings of "forced".
[56] In a narrow sense, no resignation is ever forced unless there is some observable physical intervention by the employer. Consequently, all resignations are likely to be voluntary, in a narrow sense. Such was commented on by Dowsett J in his minority decision in Pawel v Advanced Precast Pty Ltd [38]:
"As to 'compulsion', it is difficult to contemplate circumstances in which it can be said that an employee has been compelled to resign, but not dismissed, unless one accepts the somewhat bizarre reference in the course of argument to an employer holding a gun to the employee's head." [39]
[57] That said, to describe an employer's conduct as forcing a resignation does not demand a narrow reading such as this. Force may be applied in a physical sense, as Dowsett J describes it, or else it may be applied indirectly, by the conduct or the course of conduct by an employer which makes an outcome. Of course, many such examples of such conduct might be provided, and a person may be forced or compelled to adopt a course of action by a variety of actions taken by their employer.
[58] Generally, the exercise of force may take many forms, and there is little point in exploring these in detail. But common manifestations of 'force' will always exhibit an outcome in which a person acts contrary to their desired intention, and because of the conduct of another person that was directed at or towards them.
[59] I do not think the definition should be limited to cases in which an employee can demonstrate that the employer took positive action of some kind that was motivated to bring about the resignation, though many cases no doubt will fall into that category. The conduct of an employer, wilful or not, may nonetheless generate circumstances in which the resignation of an employee was the probable result.
[60] It would appear to me, then, that on an ordinary or natural reading of the term "forced", an employee may be forced (or compelled) to resign for reason of the employer expressly demands the resignation (perhaps, though not necessarily, in conjunction with a threat of termination), or makes the conditions of work so oppressive or repugnant to the employee (and the employment relationship), and/or else, so bears down on the volition of the employee, that the resignation was a reasonable probable response to the circumstances the employee faced at the time.
[61] In effect, therefore, it appears that the inclusion of the adjective "forced" in s.642(4) of the Act does not require a new or additional test as to whether a resignation was at the initiative of the employer to that which may have been alluded to by the Full Bench in O'Meara v Stanley Works Pty Ltd (under the pre-reform Act). Rather, it simply recasts descriptively and makes express the implied nature of a resignation by an employee that is taken to constitute a termination at the initiative of the employer, and it (s.642(4) of the Act) does so in juxtaposition to a "voluntary" resignation. The Explanatory Memorandum, as quoted above, does not invite a different reading.
[62] Further, I note that in some instances in which members of the Commission have applied the test of "force" to a determination as to whether a resignation was termination at the initiative of the employer for purposes of s.642(4) of the Act, they have drawn on the availability of an "effective choice" in demonstration of that finding. [40]
[63] How does this reasoning apply to the circumstances now before me?
[64] The Applicant's circumstances are highly regrettable. Through no fault of her own she has an underlying and seemingly chronic and arthritic condition which causes pain and functional weakness in her ankle. [41]
[65] It is possible surgical intervention may remedy or improve her condition. [42]
[66] She has not been able to offer for work so far as that work applies to the duties for which she is employed to perform (as a machine operator in the peelable foil section) because of her underlying condition. The Applicant was only fit for sedentary duties, particularly given that she still reported "constant pain in her right ankle", "intermittent pain from her ankle to her calf, thigh and right buttock region" and "decreased tolerance for walking on uneven terrain and up/down gradients". It also seems that the Applicant's scale of pain ranges between five (when seated) and nine out of ten on relevant pain scale utilised by her occupational therapist. [43]
[67] The Applicant's evidence at hearing supported this claim, and expanded upon it as it related to the pain she experienced when carrying out her light duties programme (between July and October 2007) and her wider duties within the peelable foil section to which she was assigned:
"[…] from around late July to early October, the level of pain you felt was about five or six? --- That I can recall, yes.
What did you tell Ms Pavey - you saw Ms Pavey, didn't you? --- Who's Ms Pavey?
She asked you about your work and the level of pain you were feeling, Is that right? --- Yes.
I put it to you that you told her that the symptoms ranged between five and nine out of ten? --- The symptoms while seating was around five and if I was carrying anything or going up and down stairs or anything like that, it could get up to about a nine.
Did you record any of that in your daily reports? --- I never did anything like that, carry heavy loads or walk up and down stairs in my daily activity at work.
These symptoms you reported to Ms Pavey related to incidents outside of work. Is that what you're telling us? --- No. It was to do with the peelable foil area where I had to step up and down on a stepladder and a platform and lift heavy loads from the back of the machine.
That was what your regular job you were doing even when you returned from your holidays. You were doing that for six shifts? --- Yes." [44]
[68] In August 2007, the medical assessment that was before the Respondent indicated that modified, light duties might be a permanent feature of the Applicant's condition, subject to medical intervention:
"While these initiatives may be symptomatically beneficial, they will not change the nature of the underlying pathology. Without surgical intervention these restrictions with some minor modifications could be considered permanent." [45]
[69] From 2 October 2007, and then again from 1 November 2007 with the transmission of business, the Respondent, reflecting on the Applicant's circumstances and its duties and obligations (and risks) offered no further light duties (which the Applicant had been performing since 24 July 2007).
[70] The Respondent sought to construct a position from amongst other positions to which the Applicant's skills and physical competencies (as they were assessed) might be fitted, but was unsuccessful to this end. [46]
[71] In such circumstances, as described in more detail above, the Respondent informed the Applicant that:
[72] Was the Applicant actuated so as to construct a set of circumstances which would generate the resignation of the Respondent?
[73] So far as it is an issue of credit, the witness evidence of Mr Weier (taken with what is factually known about the Respondent's actions in relation to the Applicant) is not demonstrative of the conduct of a senior employee who has sought to construct the Applicant's resignation so as to evade the Commission's jurisdiction or deny the Applicant access to her statutory rights.
[74] Rather, the Respondent, has acted reasonably in the circumstances. It will always be asked that it could do more, for example, offer an extension of the light duties carried out between July and October 2007, but the medical evidence and the past experience of such duties (in which the Applicant still experienced pain, albeit manageable) held little hope that the duties themselves, or in their own right, would be an avenue to rehabilitation. [48]
[75] The employer has not acted in some manner to cause a mischief, to damage the employee's employment capriciously or with intent to remove all choices from the Applicant other than that of resignation. Nor does the evidence suggest the Respondent has acted to evade deliberately the Commission's jurisdiction: Mr Weier's evidence did not give rise to such a suggestion.
[76] It cannot be said therefore that there was an improper motivation on the part of the Respondent such that it sought to procure the Applicant's resignation. The Applicant's resignation was not forced for these reasons.
[77] Can it be said, however, that the conduct of the Respondent acted on the Applicant's volition in some way that removed her choices in the context in which she found herself, such that her resignation was forced (in that it was a reasonable response to the circumstances she faced)?
[78] As contended above, the removal of effective choice by the conduct or course of conduct by an employer might cause the Applicant's employment to be forced rather than voluntary, regardless of the employer's conduct not being actuated to that end.
[79] The employer, actuated for the reasons described above, has:
[80] With what effective choices is the employee left?
[81] The Applicant retained some choices. Some of these were:
[82] Ultimately a judgment must be exercised in these circumstances as to whether or not the choices that the Applicant retained, in this case, were effective or realistic, or whether the employer's actions as described so acted upon her volition as to make any real choice ineffective, such that she was forced to resign her employment.
[83] It is my judgment that the scope of the Applicant's choice was narrowed to such an extent that it was, in any practical or reasonable sense, removed: she has been offered no work to perform, has no remuneration (and no prospect of either on an indefinite basis) and had exhausted her accruals.
[84] It must be concluded that once an employee is no longer offered duties to fulfil and there is no consideration to be provided, and that this is a decision to operate for an indefinite period, the Applicant's employment relationship with her employer has come to an end, and) it has so ended because of the actions or conduct of the employer in revoking the essential conditions of the contract of employment.
[85] In any event, and regardless of whether or not the employer's conduct resulted in the revocation of he contract of employment, in the circumstances now before me, the resignation of the employee was a reasonable response to the conduct of the employer and therefore must be taken to have been 'forced' rather than 'voluntary'.
[86] This case has different nuances to those of others: this is because the employer's conduct in this instance is in response to the degree of frustration of the contract of employment it believed arose because of the employee's medical condition. But regardless of this, in the final instance, the resignation was proffered because of the conduct of the employer as described above, and the Applicant's resignation was a reasonable response to that conduct because her volition was otherwise effectively constrained (in a manner possible envisaged by the Full Bench in O'Meara v Stanley Works Pty Ltd).
[87] Given that I have concluded that the employer forced the Applicant to resign her employment for purposes of s.642(4) of the Act, it follows that the employer's conduct was the principal contributing factor making for the termination.
[88] Consequently, it must be said further that in such circumstances there was a termination at the initiative of the employer for purposes of founding jurisdiction. Whether or not the circumstances of the termination warrant the further characterisation as being harsh, unjust or unreasonable is another matter, of course, just as it is as to whether the Applicant may have a defence to the claims under s.659 of the Act for purposes of s.659(3) of the Act.
[89] For the above reasons, the motion to dismiss the application under s.643 for want of jurisdiction on grounds the Applicant resigned her employment voluntarily and was not forced to do so (pursuant to s.642(4) of the Act) is dismissed.
Ms Fentiman for the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union
Printed by authority of the Commonwealth Government Printer
[1] Affidavit of Elizabeth Stojceski at PN2
[3] Ibid at PNS3 and 5; Annexure ES1 Affidavit of Elizabeth Stojceski; Statement of Lynette Dulcie Hastie at PNS7-8
[4] Affidavit of Elizabeth Stojceski at PN4
[5] Statement of Lynette Dulcie Hastie at PN11
[7] Annexure ES2 Affidavit of Elizabeth Stojceski and Statement of Lynette Dulcie Hastie at PNS12-14
[8] Annexure ES3 Affidavit of Elizabeth Stojceski and Annexure LHS Statement of Lynette Dulcie Hastie
[9] Annexure ES3 Affidavit of Elizabeth Stojceski
[11] Annexure ES4 Affidavit of Elizabeth Stojceski
[13] Affidavit of Elizabeth Stojceski at PN9
[15] Ibid at PN2 and Affidavit of Justin Charles Weir at PN2
[16] Affidavit of Justin Charles Weir at PN3
[18] Ibid at PN6. See also Affidavit of Justin Charles Weir at PN4, but compare Statement of Lynette Dulcie Hastie at PN22
[19] Affidavit of Justin Charles Weir at PNS6-9 and Annexure J1 Affidavit of Justin Charles Weir; Statement of Lynette Dulcie Hastie at PNS27-29 and Annexure LH8 Statement of Lynette Dulcie Hastie at pages 2-3
[20] Annexure J2 Affidavit of Justin Charles Weir
[21] Annexure J3 Affidavit of Justin Charles Weir
[22] Statement of Lynette Dulcie Hastie at PN30
[23] Annexure J2 Affidavit of Justin Charles Weir. See also footnote 24 below.
[24] Respondent's submissions in reply at PN13
[25] Statement of Lynette Dulcie Hastie at PN20-24
[26] It should be noted that an offer was put to the Applicant by the Respondent on 21 December 2007 that was in settlement of any prospective claims against it. I do not consider that the confined terms of that discrete offer for a particular purpose should be confused with the ordinary conduct of the Applicant and the Respondent. It is enough to say only that the offer was a signal to the Applicant that no further light duties would be re-offered.
[27] Annexure LH10 Statement of Lynette Dulcie Hastie
[28] Mohebatullah Mohazab v Dick Smith Electronics [1995] IRCA 265 (31 May 1995)
[31] Rheinberger v Huxley Marketing Pty Limited (1996) 67 IR 154
[33] A.S. Doumit and ABB Engineering Construction Pty Limited, Munro J, Duncan SDP, Merriman C, 9 Decemebr 1996 [Print N6999]
[35] Karl Pawel v Advanced Precast Pty Ltd, Polites SDP, Watson SDP, Gay C, 12 May 2000 [Print 49 Transcript of proceedings PN587
Lynette Hastie
Impress Australia Pty Ltd [2008] AIRC 102;
(1996) 67 IR 154