Maher v. Department of Corrective Services of New South Wales [2005] NSWIRComm 1127

Industrial Relations Commission (NSW)|2005-05-08|Before: Mr J

CITATION: Maher v. Department of Corrective Services of New South Wales [2005] NSWIRComm 1127

APPLICANT John Martin Maher

PARTIES: RESPONDENT Department of Corrective Services of New South Wales

termination of employment - retirement - constructive dismissal - "squeezing out" CATCHWORDS:

Allison v. Bega Valley Council (1995) 63 IR 68 Busways v. Johnson (1994) 55 IR 255 Health and Building Surveyors' Association of New South Wales v. Strathfield Municipal Council (1998) 25 IR 359 Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 Michaelis Bayley Trading Company Case (1979) AR 392 CASES CITED: Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200 Nettlefold v. Kym Smoker Pty Limited (1995) 64 IR 169 Nevidal v. Allworth Constructions Pty Limited [2005] NSWIRComm 1123 Russian v. Woolworths (South Australia) Pty Limited (1995) 64 IR 169

APPLICANT applicant appeared in person LEGAL REPRESENTATIVES:

RESPONDENT Teresa Anderson

DECISION: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

John Martin Maher and the Department of Corrective Services of New South Wales

Application under S.84 of the Industrial Relations Act, 1996

1 Mr J M Maher was employed as a district manager for the Probation and Parole Service of the Department of Corrective Services of New South Wales under the terms of the Crown Employees (Public Service Conditions of Employment) Award. He resigned on Friday, 19 November, 2004 after almost forty years of employment. He nevertheless lodged an application under Part 6, Unfair Dismissals, of Chapter 2, Employment [Ss.83 to 90] of the 1996 Industrial Relations Act, claiming that his resignation was a constructive dismissal, ie it had been made under duress. He recorded in his Part 6 application that:

"...I have resigned because of workplace bullying of my staff and myself, contempt for truth and occupational health and safety issues, vilification and attempted ridicule of myself by my immediate superior..."

2 In fact, notwithstanding what Mr Maher indicated in his Part 6 application, it appears that Mr Maher actually retired. He made formal application for his superannuation entitlements as a pension, recording in the document he provided that he had retired. The Employment Separation Certificate he received also recorded that he had retired. In fact, Mr Maher has not since his departure been seeking further employment and he has not obtained any. Clearly, he is comfortable to be retired.

3 In my opinion, as a question of jurisdiction, not a great deal turns on whether Mr Maher resigned or retired. If he was forced to retire, as distinct from resign, his arguments relating to his alleged constructive dismissal may still apply and, arguably, his retirement may still be unfair to the extent that a remedy will lie for him. However, in his Part 6 application, Mr Maher has sought only monetary compensation under S.89(5) and his claim would have to be considered in the context of his obligations under S.89(6), viz:

"When assessing any compensation payable, the Commission is to take into account whether the applicant made a reasonable attempt to find alternative employment and the remuneration that would have been payable if the applicant had succeeded in obtaining alternative employment."

Mr Maher is perfectly entitled to enjoy his retirement but clearly if he is pressing for the remedy of monetary compensation in these Part 6 proceedings he would be obliged by S.89(6) to mitigate his loss of earnings and he has not done so. His claim would ultimately be negligible, in my opinion. 4 In short, in his Part 6 application Mr Maher has described an unhealthy work environment in the Department - "toxic" to use his language in his Part 6 application. Not only is he raising issues directly affecting him but also issues affecting the staff under his supervision whom he believes to have been bullied. In particular, Mr Maher alleges that both he and the staff he supervised had problems with Mr Peter McDonald, the executive director of the Department. Mr Maher alleges that Mr McDonald had made threats over staffing issues and had used "informers" to undermine him and his staff. Whilst Mr Maher recognises the prerogatives of Mr McDonald in a senior position to direct and make changes to the deployment of staff for which he is ultimately responsible, he has nevertheless complained of Mr McDonald's "...improper intrusions into the work domain...".

5 Mr Maher has also claimed that there was a refusal by the Department to investigate allegations of misconduct by Mr McDonald. But the Department had, in fact, offered to arrange for mediation between Mr Maher and Mr McDonald to ventilate the range of grievances Mr Maher had. Mr Maher did not take up the opportunity of that mediation offered to him and instead tendered his resignation. He believed that the mediation fell short of what he was actually seeking - the disciplining of Mr McDonald.

6 The matter was allocated to me by the Registry staff and it was listed for conciliation and directions hearing on Wednesday, 22 December, 2004 and a mention on Friday, 11 February, 2005. Conciliation failed to settle the matter. I programmed it for arbitration on Friday, 5 August, 2005, directing that the parties file written evidentiary material in the customary manner. Mr Maher's evidentiary material comprises a folder outlining a number of concerns he had over issues in his working relationship with Mr McDonald. Mr Maher appeared unrepresented in the hearing and gave evidence under oath. Ms Anderson represented the Department of Corrective Services in the hearing.

7 Initially, Mr Maher did not complete the undertaking required by S.90 and I brought that omission to his attention, viz:

"The Commission must not determine an applicant's claim by making an order under S.89 if: (i) another Act or a statutory instrument provides for redress to the person in relation to the dismissal, and (ii) the person has commenced proceedings under the other Act or instrument or has not lodged a written undertaking not to proceed under the other Act or instrument."

Prior to the hearing commencing Mr Maher did complete the S.90 undertaking, however, and I marked it as an exhibit in the hearing.

8 To begin with, I have to say that my role in these Part 6 proceedings are considerably more confined than the allegations Mr Maher has made in his comprehensive documentation and to which he directed me in his submissions. It is unfortunate that the folder that Mr Maher provided to me as his written evidence in support of his Part 6 application was not made available in the mediation that was offered to him but which he did not take up. Of course, I have the responsibility of conciliating Mr Maher's Part 6 application before I proceed to arbitration. In that respect, S.86 provides as follows:

"The Commission must endeavour, by all means it considers proper and necessary, to settle the applicant's claim by conciliation."

But my conciliation role is confined to the context of Mr Maher's Part 6 application and does not touch on all the issues which Mr Maher clearly wishes to ventilate. I am not conducting a Royal Commission into the operations of the Department of Corrective Services at its senior level. My role is much more modest. It concerns only Mr Maher and falls essentially into two parts, viz:

(i) to determine whether or not Mr Maher's Part 6 application falls within jurisdiction as a constructive dismissal [ Health and Building Surveyors' Association of New South Wales v. Strathfield Municipal Council (1998) 25 IR 359 at pp.365 and 366]; and

(ii) if that is the position, to determine whether or not Mr Maher's constructive dismissal was unfair - or, to use a familiar expression, whether or not he received a "fair go" from the Department [ Re Loty and Holloway and the Australian Workers' Union (1971) AR 95 at p.99] or to use the actual words in S.84(1) whether or not the Department's conduct was either "harsh", "unreasonable" and "unjust" [ Busways v. Johnson (1994) 55 IR 255 at p.261]

Mr Maher has sought monetary compensation in his Part 6 application.

9 It is trite to say that prima facie resignations do not fall within jurisdiction under Part 6, as S.84(1) makes plain when it provides remedies only where:

"…an employer dismisses an employee and the employee claims the dismissal is harsh, unreasonable or unjust…"

But, as Mr Maher has intimated, the Commission does recognise the concept of constructive dismissal where an ostensible resignation is tainted in some manner to the extent that it is really the intention of the employer, rather than the resigning employee, to terminate the employment and who puts that into effect by forcing the employee to resign [the Michaelis Bayley Trading Company Case (1979) AR 392 at p.393]. The Full Bench of the Commission (Peterson and Marks JJ and Connor CC) commented in that respect in Allison v. Bega Valley Council (1995) 63 IR 68 at p. 72 that:

"…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, their employer 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…"

Ms Anderson argues that Mr Maher resigned on his own volition and at no time did the Department pressure Mr Maher to resign.

10 The Full Bench in Allison v. Bega Valley Council went on to say (at p.73) that:

"...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 of the 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…"

As I indicated in my unreported decision of Thursday, 4 August, 2005 in Nevidal v. Allworth Constructions Pty Limited [Matter No.IRC 511 of 2005 at p.6], situations where an ostensible resignation may give rise to a claim for a constructive dismissal may be summarised under the following headings:

(i) where the resignation is forced by duress [ Mohazab v. Dick Smith Electronics Pty Limited (1995) 62 IR 200; (ii) where the resignation constitutes a refusal of an employer to accept a unilateral decision of his employer to demote him or act to the detriment of his employment [ Russian v. Woolworths (South Australia) Pty Limited (1995) 64 IR 169]; or

(iii) where the resignation is a "squeezing out", ie making an employee's position so intolerable that he is forced to resign [ Nettlefold v. Kym Smoker Pty Limited (1995) 64 IR 169]. Mr Maher appears to be basing his arguments on the "squeezing out" scenario referred to in (iii) above. Mr Maher's claim is that he and his staff were consistently humiliated and denigrated by Mr McDonald, leaving him no choice other than to resign. 11 I hold no doubts that Mr Maher had considerable difficulties in his employment and his concerns, both for his position and the position of the staff he supervised, were genuinely held by him. Ms Anderson indicated in her submissions in the hearing that she believed Mr Maher was honest in his beliefs and, indeed, she did not challenge any of the assertions made in the comprehensive documentation which Mr Maher supplied (although she did question the relevance of much of that material as far as these proceedings were concerned). But ultimately I do not believe that his claim of constructive dismissal is sustainable on the evidence before me.

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.

13 For those reasons, I decline to intervene in support of Mr Maher. I dismiss his Part 6 application.

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